text:
    592 A.2d 720
    Philip COHEN, Executor of the Estate of Sara Cohen, Deceased, Appellee, v. ALBERT EINSTEIN MEDICAL CENTER, NORTHERN DIVISION, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 8, 1991.
    Filed June 11, 1991.

      David J. Griffith, Philadelphia, for appellant.
    Alan M. Feldman, Philadelphia, for appellee.
    Before WIEAND, MONTEMURO and HESTER, JJ.
   WIEAND, Judge:

Sara Cohen filed a medical malpractice action against Albert Einstein Medical Center, Northern Division (Einstein) to recover damages for an injury to her left arm and hand allegedly caused by an improper intramuscular injection administered by a nurse employee of the hospital. The jury awarded damages to Cohen in the amount of one million, three hundred thousand ($1,300,000.00) dollars. The trial court granted a remittitur to five hundred thousand ($500,000.00) dollars, but denied any further post-trial relief. Cohen accepted the court ordered remittitur, and judgment was entered accordingly. Einstein appealed.

Sara Cohen was hospitalized at Einstein from August 9, 1982 to October 1, 1982 for the treatment of intractable arthritis pain in her right hip and lower back. Her physician prescribed Demerol and Vistaril by intramuscular injection to alleviate pain. Cohen testified that on the second or third day of her hospitalization (i.e. August 10 or 11), an unidentified nurse administered an injection into her left, upper arm. As the injection was being given, Cohen asserted, she felt a shock run down her arm and into her hand and fingers. Thereafter her left hand dropped uselessly at the wrist. Cohen did not report to anyone the sudden pain and disability, and the hospital records do not contain any reference to the injection. On August 17, 1982, one of her physicians recorded for the first time his observation of a left wrist drop “of unknown etiology.” Subsequent nerve conduction tests disclosed a defect in the radial nerve above the elbow.

Cohen’s wrist drop persisted despite her doctor’s assurances that a nerve injury secondary to an injection would most likely be transitory. She required a wrist splint to maintain the hand in a proper anatomical position, and this made it difficult for her to ambulate with her walker. In September, 1986, four years after the alleged injection, Dr. James Hunter, a hand-arm surgeon, observed scarring of Ms. Cohen’s radial nerve in the upper left arm during surgery to relieve her persistent pain and disability. He recommended additional surgery. However, Ms. Cohen died on July 30,1989, following trial, of causes unrelated to the instant complaint.

In reviewing the sufficiency of the evidence to support the verdict, we view the evidence in the light most favorable to the verdict winner, granting that party the benefit of all reasonable inferences. Cooper v. Burns, 376 Pa.Super. 276, 280-281, 545 A.2d 935, 937 (1988), allocatur denied, 522 Pa. 619, 563 A.2d 888 (1989). See also: Atkins v. Urban Redevelopment Authority of Pittsburgh, 489 Pa. 344, 351, 414 A.2d 100, 103 (1980); Reichman v. Wallach, 306 Pa.Super. 177, 184-185, 452 A.2d 501, 505 (1982).

In order to establish liability on the part of the hospital, the plaintiff was required to establish by competent evidence that the alleged injection was given in a manper which was negligent and that the injection was a legal cause of the injury. See: Mitzelfelt v. Kamrin, 526 Pa. 54, 63-64, 584 A.2d 888, 891 (1990); Brannan v. Lankenau Hospital, 490 Pa. 588, 595, 417 A.2d 196, 199 (1980); Lira v. Albert Einstein Medical Center, 384 Pa.Super. 503, 559 A.2d 550, 552 (1989). In this medical malpractice action where the events and circumstances were beyond the knowledge of the average lay person, it was necessary that plaintiff present expert testimony to establish her cause of action. Brannan v. Lankenau Hospital, supra; Chandler v. Cook, 438 Pa. 447, 265 A.2d 794 (1970); Smith v. Lohe, 412 Pa. 94, 194 A.2d 167 (1963); Bowser v. Lee Hospital, 399 Pa.Super. 332, 340, 582 A.2d 369, 373 (1990); Ragan v. Steen, 229 Pa.Super. 515, 331 A.2d 724 (1974).

To establish negligence in the administration of an intramuscular injection, the plaintiff relied upon the testimony of Sandra Green, R.N., who said that, to a reasonable degree of certainty, “[i]f proper technique is used, you should not hit the radial nerve.” This testimony, although not specific, was sufficient, together with Cohen’s testimony, to require the issue of negligence to be submitted to the jury. From such evidence, the jury could infer that an injection which caused an immediate wrist drop had been negligently given.

To establish that the wrist drop had been legally caused by an injection, plaintiff offered the testimony of James Hunter, M.D., and Richard Kaplan, M.D. Appellant contends that Dr. Hunter failed to render his opinion with a sufficient degree of medical certainty.

The degree of medical certainty necessary to prove causation was reviewed by the Superior Court in Kravinsky v. Glover, 263 Pa.Super. 8, 396 A.2d 1349 (1979). The Court in Kravinsky said:

When a party must prove causation through expert testimony the expert must testify with “reasonable certainty” that “in his ‘professional opinion, the result in question did come from the cause alleged.’ ” McCrosson v. Philadelphia Rapid Transit Co., 283 Pa. 492, 496, 129 A. 568, 569 (1925). See Hamil v. Bashline [481 Pa. 256, 392 A.2d 1280], supra. An expert fails this standard of certainty if he testifies “ ‘that the alleged cause “possibly”, or “could have” led to the result, that it “could very properly account” for the result, or even that it was “very highly probable” that it caused the result.’ Niggel v. Sears, Roebuck & Co., 219 Pa.Super. 353, 354, 355, 281 A.2d 718, 719 (1971); Menarde v. Philadelphia Trans. Co., 376 Pa. 497, 103 A.2d 681 (1954); Vorbnoff v. Mesta Machine Co., 286 Pa. 199, 133 A. 256 (1926); Moyer v. Ford Motor Co., 205 Pa.Super. 384, 209 A.2d 43 (1965).” Albert v. Alter, 252 Pa.Super. 203, 225, 381 A.2d 459, 470 (1977).
“The issue is not merely one of semantics. There is a logical reason for the rule. The opinion of a[n] ... expert is evidence. If the fact finder chooses to believe it, he can find as fact what the expert gave as an opinion. For a fact finder to award damages for a particular condition to a plaintiff it must find as a fact that the condition was legally caused by the defendant’s conduct____ [I]t is the intent of our law that if the plaintiff's ... expert cannot form an opinion with sufficient certainty so as to make a [professional] judgment, there is nothing on the record with which a [factfinder] can make a decision with sufficient certainty so as to make a legal judgment.” McMahon v. Young, 442 Pa. 484, 486, 276 A.2d 534, 535 (1971). However, to make an admissible statement on causation, an expert need not testify with absolute certainty or rule out all possible causes of a condition. Bialek v. Pittsburgh Brewing Company, 430 Pa. 176, 242 A.2d 231 (1968); Ritson v. Don Allen Chevrolet, supra [233 Pa.Super. 112, 336 A.2d 359 (1975)]. Expert testimony is admissible when, taken in its entirety, it expresses reasonable certainty that the accident was a substantial factor in bringing about the injury. Hussey v. May Department Stores, Inc., supra, 238 Pa.Super. [431] at 437, 357 A.2d [635] at 638 [ (1976) ]. The expert need not express his opinion in precisely the same language we use to enunciate the legal standard. See In re Jones, 432 Pa. 44, 246 A.2d 356 (1968) (medical testimony need not conform to precise statutory definitions). That an expert may, at some point during his testimony, qualify his assertion does not necessarily render his opinion inadmissibly speculative. Woods v. Pleasant Hills Motor Company, 454 Pa. 224, 309 A.2d 698 (1973); Commonwealth v. Joseph, 451 Pa. 440, 304 A.2d 163 (1973).
Id., 263 Pa.Superior Ct. at 21-22, 396 A.2d at 1355-1356 (emphasis added) (footnotes omitted).

See also: Hreha v. Benscoter, 381 Pa.Super. 556, 560-561, 554 A.2d 525, 527 (1989), allocatur denied, 524 Pa. 608, 569 A.2d 1367 (1989).

Dr. Hunter testified that the radial nerve scarring which he had observed during surgery in 1986 was consistent with the sensations plaintiff had experienced at the time of the injection and fully accounted for the sudden appearance of a wrist drop. He opined that plaintiff’s wrist drop was “related to” an injection. This testimony was properly received and, with other testimony, was sufficient to permit a finding that an injection in August, 1982, had caused the plaintiff-appellee’s wrist drop.

A second opinion on causation was elicited from Richard Kaplan, M.D., a specialist in physical therapy and rehabilitation who had participated in plaintiff’s treatment. He testified as follows:

Q. Based upon your review of [Dr. Hunter’s] records in conjunction with your own findings, your own examination and your own testing, what conclusions did you reach?
A. Well, I was able to definitely conclude that Miss Cohen sustained a radial nerve injury that resulted in scarring of the radial nerve, and this was directly a result of the injection.

In view of the foregoing medical testimony, we are of the opinion that plaintiff’s evidence was sufficient to prove causation between the injection and the wrist drop; and, therefore, the trial court properly denied the hospital’s post-trial motion for judgment n.o.v.

We agree with appellant, however, that trial errors require the granting of a new trial. The first of these errors was the trial court’s refusal to allow the jury to learn that the plaintiff was suffering from a psychiatric disorder known as Munchausen Syndrome.

Munchausen Syndrome is well recognized in the medical literature. The syndrome has been described as the “[r]epeated fabrication of illness, usually acute, dramatic and convincing.” Merck Manual, Fifteenth Edition, 1987. It is a mental disorder “in which an individual voluntarily produces or simulates illness for no apparent purpose other than to assume the sick role, i.e., to be a patient.” Hyler and Sussman, Chronic Factitious Disorder with Physical Symptoms (the Munchausen Syndrome), Psychiatric Clinics of North America, Yol. 4, No. 2, August, 1981. Appellant offered to prove that because of plaintiffs psychiatric illness she had either fabricated her injury or produced it herself during a drug induced stupor by leaning on her arm and compressing it against a hard surface, thereby placing pressure on the nerve.

Questions pertaining to the relevancy of evidence are within the sound discretion of the trial court, and the court’s rulings thereon will be reversed on appeal only where there has been an abuse of discretion and actual prejudice. Lewis v. Mellor, 259 Pa.Super. 509, 515, 393 A.2d 941, 944 (1978), quoting Westerman v. Stout, 232 Pa.Super. 195, 202, 335 A.2d 741, 745 (1975). See also: Pirches v. General Accident Insurance Co., 354 Pa.Super. 303, 307, 511 A.2d 1349, 1351 (1986). However, the unjustified exclusion of relevant evidence, otherwise admissible, is an abuse of discretion.

“Generally, it may be said that any legally competent evidence which, when taken alone or in connection with other evidence, tends to prove or disprove a material or controlling issue or to defeat the rights asserted by one or the other parties, and sheds any light upon or touches the issues in such a way as to enable the jury to draw a logical and reasonable inference with respect to the matter or principal fact in issue, is relevant. As thus defined, relevancy means the logical relation between the proposed evidence and a fact to be established.” Commonwealth v. Vukovich, 301 Pa.Super. 111, 118, 447 A.2d 267, 270 (1982), quoting 29 Am.Jur.2d 302, 303, Evidence, § 252. “The law furnishes no test of relevancy, but tacitly refers it to logic and general experience. Evidence is admissible which tends to make the fact at issue more or less probable or intelligible or to show the origin and history of the transaction between the parties and explain its character.”

Reichman v. Wallach, supra at 190, 452 A.2d at 508. In the instant case, the general exclusion of all evidence regarding Munchausen’s Syndrome deprived the jury of information which was relevant to assist it in weighing the credibility of plaintiffs’ testimony regarding the injection and subsequent injury. The evidence was also relevant to a determination of plaintiff’s damages.

The introduction of plaintiff’s medical history would admittedly have increased the complexity of this already difficult case, but a trial court’s chief concern must be to allow the jury to hear all evidence relevant to the issue being decided and to exclude only that evidence which is inadmissible as a matter of law or which is unduly prejudicial. Christy v. Darr, 78 Pa.Commw. 354, 358, 467 A.2d 1362, 1364 (1983). See also: In re Gaston’s Estate, 361 Pa. 105, 112, 62 A.2d 904, 908 (1949). In the instant case, evidence regarding the plaintiff’s affliction with Munchausen’s Syndrome was directly relevant to the hospital’s defense that no injection had been given. Dr. Janofsky, a forensic psychiatrist, would have testified, if permitted to do so, that he had reviewed plaintiff’s voluminous medical records and was of the opinion that she suffered from Munchausen’s syndrome. This psychiatric disorder, he would have testified, rendered unreliable the plaintiff’s recitation of subjective medical symptoms.

A witness is qualified to render an expert opinion if he has “sufficient skill, knowledge, or experience in that field or calling so as to make it appear that his opinion or inference will probably aid the trier in his search for truth.” Dambacher by Dambacher v. Mallis, 336 Pa.Super. 22, 36, 485 A.2d 408, 415 (1984), appeal dismissed, 508 Pa. 643, 500 A.2d 428 (1985). See also: Taylor v. Spencer Hospital, 222 Pa.Super. 17, 22-23, 292 A.2d 449, 452 (1972); Gray v. H.C. Duke & Sons, Inc., 387 Pa.Super. 95, 107, 563 A.2d 1201, 1207 (1989), allocatur denied, 525 Pa. 583, 575 A.2d 114 (1990). Jeffrey Janofsky, M.D., was an Assistant Professor of Psychiatry and Behavioral Sciences at The John Hopkins University School of Medicine and Hospital. He had had clinical experience with Munchausen’s patients. Dr. Janofsky’s training and experience were such that he was clearly qualified to explain the characteristics of Munchausen’s and to offer an expert opinion as to whether plaintiff’s medical history demonstrated the existence of this disorder.

Dr. Janofsky’s expert opinion testimony was not rendered inadmissible merely because it was based on medical records not in evidence. In Commonwealth v. Thomas, 444 Pa. 436, 282 A.2d 693 (1971), the Supreme Court sanctioned the use of such testimony, reasoning as follows:

In Pennsylvania, our cases have heretofore ruled that an expert may not state a conclusion which is based on evidence not in the record.,.. However, several jurisdictions influenced by the teaching of highly regarded legal commentators have recognized an exception to this rule and have permitted medical witnesses to express opinion testimony on medical matters based, in part, upon reports of others which are not in evidence, but which the expert customarily relies upon in the practice of his profession____
As Professor Wigmore explains, “where the information is that of an attending nurse or physician having personal observations and an interest in learning and describing accurately, there seems to be every reason for admitting testimony based in part on this.” 3 Wigmore, Evidence § 688(4) (Chadbourn Revision).
It appears to us that the foregoing limited exception is wise and salutary, hence we adopt it as the law in Pennsylvania. (Citations omitted.)

Id., 444 Pa. at 445, 282 A.2d at 698-699. See also: Smith v. Brooks, 394 Pa.Super. 327, 343, 575 A.2d 926, 934 (1990); Kearns by Kearns v. DeHaas, 377 Pa.Super. 200, 213, 546 A.2d 1226, 1233 (1988), allocatur denied, 522 Pa. 584, 559 A.2d 527 (1989); Cooper v. Burns, supra. That Dr. Janofsky’s opinion was not based on his personal examination of the plaintiff goes to the weight of his testimony, not to its admissibility. The weight to be assigned the testimony was an issue for the jury’s determination.

The trial court has suggested that portions of Dr. Janofsky’s testimony were excluded because they were speculative and exceeded his area of expertise. Even if this were so, however, the witness’s improper remarks could have been excluded without disallowing the relevant information which he had to impart. The fact that his written report contained speculative comments did not render incompetent the entirety of his testimony.

The trial court has also sought to justify its exclusion of Dr. Janofsky’s testimony on grounds that it would have constituted an improper comment on plaintiff’s credibility and would, therefore, have usurped the function of the jury. This reasoning was fallacious. Evidence of mental illness or a disability which impairs a witness’ ability to perceive, remember and narrate perceptions accurately is invariably admissible to impeach credibility, even if not adequate to demonstrate incompetency. See: Packel & Poulin, Pennsylvania Evidence, § 608.4, citing Commonwealth v. Goldblum, 498 Pa. 455, 447 A.2d 234 (1982); Commonwealth v. Mason, 358 Pa.Super. 562, 518 A.2d 282 (1986), allocatur denied, 516 Pa. 640, 533 A.2d 711 (1987); Commonwealth v. Gaerttner, 335 Pa.Super. 203, 484 A.2d 92 (1984); Commonwealth v. Butler, 232 Pa.Super. 283, 331 A.2d 678 (1974). “The evidence can be said to affect the credibility of a witness when it shows that his mental disorganization in some way impaired his capacity to observe the event at the time of its occurrence, to communicate accurately and truthfully at trial, or to maintain a clear recollection in the meantime.” Commonwealth v. Butler, supra, 232 Pa.Superior Ct. at 287, 331 A.2d at 680. The psychiatric condition from which Ms. Cohen suffered, according to Dr. Janofsky, was characterized by fabrication of symptoms and medical history, in addition to the self-infliction of bodily injury. The presence of Munchausen’s Syndrome, therefore, impacted directly on plaintiff’s ability to report truthfully the events and subjective symptoms surrounding the incident in question.

We conclude, therefore, that it was prejudicial error to exclude the testimony of Dr. Janofsky who would have testified that Ms. Cohen was suffering from Munchausen’s Syndrome and would have explained the nature and effect of that disorder.

The trial court also erred when it excluded opinion testimony by Dr. Haase, a neurologist, that plaintiff’s report of pain extending into all the fingers of the left hand was inconsistent with nerve injury and that an earlier shoulder/arm injury made it impossible, medically, to identify that an injection was the cause for plaintiff’s wrist drop. This testimony was not properly excluded on grounds that it had somehow been offered in violation of Pa.R.C.P. 4003.5(a)(1).

This rule provides as follows:

(1) A party may through interrogatories require
(a) any other party to identify each person whom the other party expects to call as an expert witness at trial and to state the subject matter on which the expert is expected to testify and
(b) the other party to have each expert so identified by him state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. The party answering the interrogatories may file as his answer a report of the expert or have the interrogatories answered by his expert. The answer or separate report shall be signed by the expert.

In this case, appellant had supplied plaintiff’s attorney with a pre-trial report which , stated the doctor’s findings on physical examination and his conclusions. In answer to plaintiff’s interrogatories, the defendant also had supplied portions of medical records and an index to indicate those sections relied on by defendant’s experts. Finally, plaintiff’s attorney, when given the opportunity to question Dr. Haase during a pre-trial deposition, had declined to do so. The information supplied and the opportunity to question the witness before trial fully satisfied the requirements of Rule 4003.5. See: Mecca v. Lukasik, 366 Pa.Super. 149, 164, 530 A.2d 1334, 1341 (1987).

The plaintiff-appellee argues that even if the court’s ruling was erroneous, the error was harmless, because appellant was not prejudiced by the exclusion of this testimony. We disagree. As a result of the trial court’s ruling, appellant lost a critical opportunity to rebut plaintiff’s contention that the wrist drop had been caused by an injection. Had the jury heard and believed Dr. Haase, a different verdict may have resulted. See: Curran v. Stradley, Ronon, Stevens & Young, 361 Pa.Super. 17, 32-33, 521 A.2d 451, 458 (1987); Mapp v. Dube, 330 Pa.Super. 284, 288, 479 A.2d 553, 556 (1984). The error, therefore, was not harmless.

Appellant also assigns as error the trial court’s exclusion of portions of the videotaped testimony of Dr. George Ehrlich, who had treated Ms. Cohen at Hahnemann Hospital approximately a year before the alleged injection. Dr. Ehrlich was permitted to testify regarding a pre-existing disability of plaintiff’s left arm and hand. However, the court excluded testimony that Ms. Cohen had been diagnosed as addicted to Demerol. Plaintiff’s drug dependence was relevant and probative of the issue of causation, for it formed the basis of the hospital’s assertion that the radial nerve damage had occurred as a result of a pressure injury during an episode of narcosis. It was also relevant to the credibility of appellee’s testimony. Therefore, it could be excluded only if its probative value were substantially outweighed by the potential prejudice to be caused by its receipt.

. Dr. Ehrlich’s testimony, if allowed, would have revealed that plaintiff had been dependent on medication prescribed by physicians to control chronic and severe pain. His testimony did not imply and the defendant-hospital did not contend that Cohen was a criminal abuser of narcotics. Dr. Ehrlich’s testimony, therefore, did not constitute an impermissible comment on plaintiff’s character; it was not evidence of prior criminal acts. To exclude evidence of plaintiff’s addiction to Demerol was, in fact, to exclude evidence of a medical fact relevant to a determination of the cause for plaintiff’s wrist drop. The court’s ruling which excluded this evidence, therefore, was an abuse of discretion.

Appellant also contends that the trial court erred in excluding portions of the videotaped cross-examination of Dr. Hunter which dealt with Munchausen’s, drug addiction and the scope of his review of past medical records. Although this evidence was relevant and involved matters affecting the credibility and weight of Dr. Hunter’s testimony, its exclusion does not provide a basis for reversal. The trial court has broad discretion to control the mode and order of interrogating witnesses by restricting cross-examination. See: Kline v. Kachmar, 360 Pa. 396, 405, 61 A.2d 825, 830 (1948). The exclusion of portions of the cross-examination of Dr. Hunter was not the ruling which precluded relevant evidence offered by the defense. Kearns by Kearns v. DeHaas, supra, 377 Pa.Superior Ct. at 205, 546 A.2d at 1228-1229; Commonwealth v. Cessna, 371 Pa.Super. 89, 97, 537 A.2d 834, 838 (1988); Commonwealth v. Lobel, 294 Pa.Super. 550, 556, 440 A.2d 602, 605 (1982).

Similarly, we do not base reversal on the trial court’s refusal to allow cross-examination of plaintiff by using answers to interrogatories prepared by her previous attorney and submitted without her signature. Even if the answers had been authorized and adopted by plaintiff, the exclusion of this evidence was not prejudicial because the information concerning previous and subsequent left arm injury was proved at trial by other means.

It was improper, however, for the trial court to refuse a general instruction regarding the nature and purpose of circumstantial evidence after a specific request for such an instruction had been made. Although the trial court was not required to accept the precise language of the point for charge submitted by the defendant, see: Cooper v. Burns, supra at 283, 545 A.2d at 938, the Court was required, upon request, to explain to the jury the nature of circumstantial evidence and tell the jury that ultimate facts may, at times, be inferred from other facts by a process of reasoning. Cf. Griffith v. Clearfield Truck Rentals, Inc., 427 Pa. 30, 44, 233 A.2d 896, 903 (1967); ARCO Metalscraft Co. v. Shaw, 364 Pa. 39, 44, 70 A.2d 850, 853 (1950). It was not an adequate substitute for such an instruction to tell the jury that it should apply its common sense in arriving at a verdict.

An instruction on circumstantial evidence was essential in the instant case, as appellant contends, because its defense was largely dependent upon inferences that could be drawn from circumstances proved. Appellant argued, inter alia, that the plaintiffs expert testimony regarding the anatomical position of the radial nerve in the upper arm, taken in conjunction with plaintiffs testimony that she was lying on her back at the time of the injection, gave rise to an inference that the nerve could not have been injected as plaintiff described. Appellant also asserted that from the evidence of plaintiffs accidents and injuries which had occurred, both prior and subsequent to the alleged injection, the jury could have inferred that the persistent wrist drop was attributable to occurrences other than an injection. Because these arguments were made and supported by factual evidence, the defendant hospital was entitled to an instruction which introduced the jury to an understanding of the nature and purpose of circumstantial evidence.

The trial court also erred when it instructed the jury that, despite the absence of evidence relating to the cost of future hospitalization, it should “rely upon your common knowledge as to hospital costs, because we don’t even know when she’s going to have it.” “If [a] jury-charge is fundamentally erroneous or has a tendency to mislead or confuse ... a new trial will be required so long as that portion of the charge in question might have been responsible for the verdict.” Niles v. Fall Creek Hunting Club, Inc., 376 Pa.Super. 260, 270, 545 A.2d 926, 931 (1988), quoting Hoffman v. Memorial Osteopathic Hospital, 342 Pa.Super. 375, 382, 492 A.2d 1382, 1386 (1985) (emphasis added).

An item of damage claimed by a plaintiff can properly be submitted to the jury only where the burden of establishing damages by proper testimony has been met. See: Gordon v. Trovato, 234 Pa.Super. 279, 283, 338 A.2d 653, 654 (1975), citing Link v. Highway Express Lines, Inc., 444 Pa. 447, 282 A.2d 727 (1971). “The amount and items of pecuniary damage cannot be presumed but must be proved by the establishment of facts.” Gordon v. Trovato, supra, citing Maxwell v. Schaefer, 381 Pa. 13, 112 A.2d 69 (1955). A plaintiff need only provide the jurors with a reasonable amount of information sufficient to enable them to estimate damages without engaging in speculation. Slater v. Pennsylvania Power Co., 383 Pa.Super. 509, 515, 557 A.2d 368, 371 (1989), allocatur denied, 525 Pa. 585, 575 A.2d 115 (1990), citing Bolus v. United Penn Bank, 363 Pa.Super. 247, 525 A.2d 1215 (1987), allocatur denied, 518 Pa. 627, 541 A.2d 1138 (1988).

Instantly, plaintiff’s only evidence pertaining to the amount of future hospital costs was presented during the direct examination of Dr. Hunter, when he testified as follows:

Q. And, doctor, do you have any idea of what the fair and reasonable charges for that surgical procedure and the hospital stay and the necessary therapy would be? A. Well, if it could all be done at one time, with preparation for the surgery, the surgery would probably be about $5,000. I guess her time in the hospital, three to five days, an[d] anesthesia would be at least four hours.
And the hospitalization could be kept at a minimum, maybe three days, and—but she would need then organized after-care, once or twice a week for an extended period, and she’d need to have some help traveling. She might need some help at home, ‘cause some of her hand function would be changed. I—I don’t know that for sure.
Q. Do you have some approximation of the cost of all those things, if you know?
A. Well, the hospital cost changed daily.
Q. At the present time, what—what the cost is?
A. I really don’t know what it is at the present time. It’s astronomical, I think. Anesthesia—actually, the—the surgeon’s fee becomes a small part of trying to care for this.

This testimony failed to provide an adequate basis to permit the jury to ascertain the amount of future hospital costs. The doctor was unable to estimate the costs of future hospital care and characterized the potential amount as “astronomical.” The trial court’s instruction invited the jury to speculate about such costs. The costs of complex, in-hospital medical and surgical care are not matters of common knowledge. Even persons who have incurred such costs may not be familiar with the amounts if they have been insulated from this information by third party payment. The trial court’s explicit direction to assess future medical costs from insufficient evidence may well have resulted in an excessive verdict that was based in part on conjecture. The trial court’s instruction regarding future hospital costs, therefore, was erroneous.

Because we have determined that the jury’s verdict may have been influenced by erroneous evidentiary rulings and by inadequate and inaccurate jury instructions, a new trial is required.

Reversed and remanded for a new trial. Jurisdiction is not retained.

      . The action has been pursued by Philip Cohen, plaintiffs brother and the executor of her estate.

      . It is included as a diagnostic category in the most recent (Third) edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-III).

      . Dr. Janofsky’s written report included comments such as the following:
      “Remark: Although not picked up by staff, Miss Cohen might have been self-administering thyroid to herself during this admission. There was never any etiology for the thyrotoxicosis found." "Remark: Although not considered by staff, Miss Cohen may have surreptitiously not taken the Coumadin”.


source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    592 A.2d 730
    COMMONWEALTH of Pennsylvania, Appellant, v. Karen S. KLINE.
    Superior Court of Pennsylvania.
    Argued April 17, 1991.
    Filed June 12, 1991.

      Charles Coleman, Asst. Dist. Atty., Reading, for Com., appellant.
    William R. Bernhart, Reading, for appellee.
    Before MONTEMURO, BECK and TAMILIA, JJ.
   BECK, Judge:

The issue in the instant appeal is whether appellee Karen Kline’s guilty plea to a summary traffic violation bars a subsequent prosecution for a charge of drunk driving which arose out of the same incident. Under the circumstances of this case and the recent United States Supreme Court pronouncements in this area, Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), we conclude that prosecution for drunk driving violated Kline’s protection against twice being placed in jeopardy. Accordingly, we affirm the trial court’s order dismissing the charges against Kline.

The facts which give rise to this appeal are as follows. On May 17, 1989, a state police officer noticed a vehicle weaving across the center line of the highway. The car’s motion forced the police officer to move his car partly off the road to avoid being hit. Karen Kline was driving the weaving car which continued to veer from side to side as it travelled up the highway. The trooper stopped the vehicle, detected the smell of alcohol and placed Kline under arrest. The trooper told Kline that he believed that she was under the influence of alcohol and was being arrested for driving under the influence of alcohol (DUI). He transported her to the nearby state police headquarters and had her car towed. Kline refused to submit to a blood alcohol test. That day, prior to releasing Kline, the trooper issued a citation charging her with the summary motor vehicle code violation of failing to drive on right side of roadway. 75 Pa.Cons.Stat.Ann. § 3301 (Purdon 1977).

Five days later, on May 22, 1989, a criminal complaint was filed charging Kline with driving under the influence of alcohol, (DUI) 75 Pa.Cons.Stat.Ann. § 3731 (Purdon 1990). On May 27, 1989, Kline pled guilty to the summary offense by signing her citation and mailing it in. It was stipulated that Kline pled guilty to the summary offense before receiving notice of the DUI charge.

After numerous continuances were sought and granted, Kline filed a pre-trial motion to dismiss the complaint on the ground that her plea to the summary offense precluded the DUI prosecution. Relying on the recently announced United States Supreme Court opinion in Grady v. Corbin, supra, she argued that in order to establish the essential elements of the DUI offense, the Commonwealth necessarily would have to prove conduct for which she had already pled guilty. This, she claimed, would violate her constitutional guarantee against double jeopardy. The trial court agreed and dismissed the DUI complaint. In our view, both Grady v. Corbin, supra, and Commonwealth v. Labelle, 397 Pa.Super. 179, 579 A.2d 1315 (1990), this court’s recent en banc double jeopardy decision, compel us to affirm the trial court.

In Grady v. Corbin, in a fact pattern critically similar to the one in the instant case, the United States Supreme Court announced the principles by which courts must interpret what constitutes prosecution for the “same offense” for purposes of the constitutional guarantee against double jeopardy. The charges at issue in Grady v. Corbin arose from an automobile accident involving multiple potential charges. The defendant, Corbin, drove his car across the double yellow line of a highway in New York, striking two oncoming vehicles. One fatality and a second serious injury resulted from the collision. On the day of the accident, Corbin was served with two traffic tickets charging him with driving while intoxicated and failing to keep right of the median.

Meanwhile, the State of New York began a grand jury investigation aimed toward prosecuting Corbin for homicide. Despite this, Corbin appeared before the Town Justice Court and pled guilty to the two traffic tickets. No one from the prosecutor’s office informed the presiding judge about the pending homicide investigation either at the time of the guilty plea or at sentencing when a sentence of fines and license revocation was imposed. Neither Corbin nor his counsel informed the court that the accident resulted in a fatality. Two months later Corbin was indicted on charges of reckless manslaughter, second-degree vehicular homicide, criminally negligent homicide, third degree reckless assault and driving while intoxicated.

The prosecution filed a bill of particulars stating its intention to prove the homicide and assault charges based on three reckless or negligent acts by Corbin: 1) operating a vehicle while intoxicated; 2) failing to keep right of median; and 3) driving too fast for weather conditions. Corbin moved to dismiss the indictment on double jeopardy grounds. The New York Court of Appeals found that because the state conceded that the prosecution for homicide and assault would rely upon the prior traffic offenses to establish the elements of the greater offenses, double jeopardy barred the subsequent prosecution. Corbin v. Hillery, 74 N.Y.2d 279, 545 N.Y.S.2d 71, 543 N.E.2d 714 (1989). The United States Supreme Court affirmed.

In its opinion the Supreme Court clarified and expanded the inquiry which must be undertaken in order to determine whether successive prosecutions violate the double jeopardy guarantee. It focused on the dangers inherent in multiple prosecutions and stated that the Blockburger test, which analyzes the statutory elements of the charged offenses to reveal whether they are either identical or one is a lesser included offense of the other, is insufficient by itself to protect defendants against the burdens of multiple trials. Therefore, the Court held that even if offenses would pass muster under the Blockburger test, a further inquiry is necessary to assure that the double jeopardy right is not violated. Thus, the Court held that, “the Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted____ The critical inquiry is what conduct the State will prove, not the evidence the State will use to prove that conduct.” Grady v. Corbin, supra, 495 U.S. at-, 110 S.Ct. at 2093, 109 L.Ed.2d at 564 (footnote omitted).

Applying this standard to the facts in Corbin was, according to the Court, “straightforward.” In its bill of particulars, the State admitted that it would prove “the entirety of the conduct for which Corbin was convicted— driving while intoxicated and failing to keep right of the median—to establish essential elements of the homicide and assault offenses.” Id., at---, 110 S.Ct. at 2094, 109 L.Ed.2d at 565-566. Therefore, the Court held that the successive prosecution was barred by double jeopardy. Acknowledging that drunk driving is a national tragedy and that prosecutors’ offices are often understaffed and overworked, the Court nevertheless emphasized that, “[w]ith adequate preparation and foresight, the State could have prosecuted Corbin for the offenses charged in the traffic tickets and the subsequent indictment in a single proceeding, thereby avoiding this double jeopardy question.” Id., at-, 110 S.Ct. at 2087, 109 L.Ed.2d at 566. It is clear that, henceforth, prosecutors must scrupulously adhere to this standard in order to escape the double jeopardy bar.

Commonwealth v. Labelle, supra, 579 A.2d at 1321, applied this new “constitutional mandate” to the case before it which, like Grady v. Corbin and the instant case, involved summary traffic convictions followed by a subsequent criminal prosecution, all of which arose from a single incident. In Labelle, the Commonwealth sought to prosecute the defendant for driving under the influence of alcohol. The defendant previously had pled guilty to two summary offenses arising from the same incident, driving at an unsafe speed and reckless driving, and had paid fines and costs.

Pursuant to the mandate of Grady v. Corbin, this court first applied the Blockburger test to determine whether the offenses involved had identical statutory elements or if one was a lesser included offense of the other. Having concluded that each offense contains at least one element which the other did not, this court went on to apply the new, second double jeopardy test articulated in Grady v. Corbin, i.e., whether the Commonwealth intended to base the DUI prosecution upon conduct for which the defendant had already been convicted in the reckless driving prosecution. In La-belle, the record was inadequate to reveal the basis on which the Commonwealth would seek to prove the DUI conviction and whether that basis necessarily involved conduct for which the defendant had already been prosecuted. Therefore, we remanded for further proceedings.

After Grady v. Corbin and Commonwealth v. Labelle, this court's path, therefore, is well marked. In light of the mandates of these cases, it can no longer be argued that double jeopardy concerns are not raised by prior summary convictions. We are not free to conclude that a plea of guilty to a citation for a summary offense does not subject a defendant to the burdens of multiple trials or the dangers of government harassment which underlie the double jeopardy protection. Both Grady v. Corbin and Labelle involved guilty pleas to summary traffic violations. In neither case was the defendant subject to the ordeal of “running the gauntlet” of a trial even once, much less multiple times. Whatever may have been our misgivings about extending double jeopardy protection to situations such as the present one, any doubts in that regard are precluded by Grady v. Corbin and Labelle. Our sole remaining relevant inquiry is whether Blockburger bars this prosecution and if not, whether the prosecution survives the second prong of the Grady v. Corbin “same conduct” test.

The Blockburger inquiry need not detain us long. Failing to drive on the right side of the roadway and driving while intoxicated each contain elements that the other does not. The former requires proof of driving on the wrong side of the road which DUI does not necessarily require. An essential element of DUI is proof of being under the influence of alcohol, an element not required for the summary traffic violation. Therefore, in order to complete our double jeopardy inquiry we must determine whether the Commonwealth, in order to establish an essential element of DUI, will prove conduct that constitutes the offense (failing to drive on the right side of road) for which Kline has already been prosecuted. Under the circumstances of this case, we conclude that the Commonwealth must prove Kline’s failure to drive on the right side of the road in order to convict her of DUI. Therefore, double jeopardy bars the DUI prosecution.

The section of the motor vehicle code under which the defendant was charged defines driving under the influence of alcohol in the following terms:

A person shall not drive, operate or be in actual control of the movement of any vehicle while:
(1) under the influence of alcohol to a degree which renders the person incapable of safe driving; ____

75 Pa.Cons.Stat.Ann. § 3731(a)(1) (Purdon 1990).

In order to establish the offense the Commonwealth must prove that: 1) defendant was operating a motor vehicle, 2) while under the influence of alcohol to the extent that she was incapable of safe driving. The Commonwealth must prove that Kline was intoxicated to a degree which rendered her unable to drive safely. We note that if Kline had consented to a blood alcohol test and if her blood alcohol content was shown to be 0.10 percent by weight or greater, proof of that fact along with the fact that Kline operated the vehicle would be sufficient to support a conviction for DUI under section 3731(a)(4). The statute permits the fact finder to infer that anyone with a blood alcohol level of 0.10 percent or more is under the influence of alcohol and should not be driving. See Commonwealth v. Griscavage, 512 Pa. 540, 517 A.2d 1256 (1986); Commonwealth v. Crum, 362 Pa.Super. 110, 523 A.2d 799 (1987).

In the instant case, however, the blood alcohol content of the defendant is unknown and she was not charged under section 3731(a)(4). Therefore, in order to establish the second element of the DUI offense, the Commonwealth must show that Kline’s consumption of alcohol made her incapable of safe driving. The entirety of the Commonwealth’s evidence on the DUI, as stipulated to at the motion to dismiss on double jeopardy grounds, was that Kline’s car was observed weaving back and forth across the center line of the highway and that the trooper noticed “the indicia of alcohol.” No other “conduct” or demeanor relevant to Kline’s degree of intoxication or ability to drive safely was observed. Clearly, in order to establish that Kline was intoxicated to a degree rendering her incapable of safe driving, the Commonwealth had to prove that she was weaving back and forth across the center line of the roadway. This conduct, however, was conduct which constituted the offense (failing to drive on right side of roadway) for which she already had been prosecuted. As such, Kline’s prosecution for DUI would offend the standards established in Grady v. Corbin and Labelle for protecting the double jeopardy guarantee.

We stress, as did the Supreme Court, our appreciation that society’s need to control drunk driving remains compelling. We note further that our holding today would appear to stretch the double jeopardy guarantee to beyond the limits likely to have been contemplated by the authors of the Fifth Amendment. It is difficult to view this defendant’s mere signing and mailing of the traffic citation as the kind of ordeal against which the double jeopardy guarantee was meant to protect. Moreover, the instant case displays none of the prosecutorial overreaching which in part underlies the prohibition against multiple prosecutions.

On the other hand, our rules of procedure provide the Commonwealth with an expeditious avenue by which to avoid the double jeopardy bar encountered in the instant case. The rules contemplate that all charges, summary and greater criminal charges alike, will be brought together in a single proceeding. In light of today’s result it would appear unwise for citations to issue separately from criminal complaints arising from the same incident. We echo the sentiment of- the United States Supreme Court that “with proper planning and attention prosecutors will be able to meet this standard and bring to justice those who make our Nation’s roads unsafe.” Grady v. Corbin, 495 U.S. at-, 110 S.Ct. at 2095, 109 L.Ed.2d at 566.

Order affirmed.

TAMILIA, J., concurs in the result.

      . The Rules of Criminal Procedure for summary cases contemplate that ordinarily citations for summary offenses will be issued by law enforcement officers and handed to the defendant at the time the offense is committed. See Committee Introduction to Chapter 50 of the Rules of Criminal Procedure; Pa.R.Crim.P. 51 and 55. However, the rules also state that in cases which involve both summary offenses and "court cases” (i.e., misdemeanor, felony or murder charges), the summary offenses, if known at the time, "shall be charged in the same complaint as the higher offenses and shall be disposed of as part of the court case." Pa.R.Crim.P. 51, Comment. We note that had this procedure been followed here, the double jeopardy issue with which we are faced could have been avoided. Moreover, it is clear to us that in the future summary offenses and greater criminal charges arising out of the same transaction must be brought together to prevent a hastily entered guilty plea on the citation from barring prosecution on the greater offenses.

      . Rule 130(b) of the Rules of Criminal Procedure provides that a defendant arrested without a warrant for DUI may be released from custody at the discretion of the arresting officer, without first being taken before the issuing authority. When a defendant is released pursuant to this provision of the rules, a complaint against the defendant must be filed within five days of the defendant's release. Pa.R.Crim.P. 130(d).

      . The rules provide that a defendant must enter a plea of guilty or not guilty within ten days after the issuance of a citation. Pa.R.Crim.P. 57. A plea of guilty may be entered in writing by returning the citation along with an amount equal to the fine and costs noted in the citation. Pa.R.Crim.P. 59(a)(1).

      . The New York Court of Appeals found that the indictment count charging driving while intoxicated was barred by New York’s statutory double jeopardy provision. In addition, the state court ruled that vehicular manslaughter was barred pursuant to the Blockburger test, Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), because, as a matter of New York law, driving while intoxicated constituted a lesser included offense of that state’s second-degree vehicular manslaughter. On appeal to the Supreme Court, the state did not contest these rulings by the Court of Appeals and therefore the Supreme Court addressed only whether double jeopardy barred the homicide and assault prosecutions.

      . Blockburger v. United States, supra, 284 U.S. at 304, 52 S.Ct. at 182. The test adopted in Blockburger for purposes of defining "same offense" was:
      Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.

      . Labelle had a somewhat complex procedural history. In Labelle, a complaint charging defendant with DUI was filed eight days after the accident from which the charges arose. One week later, the defendant was also charged with the two summary offenses. Two months later, while the DUI complaint was pending, defendant pled guilty to the summary offenses before the district justice and paid the fines and costs. A preliminary hearing was scheduled on the DUI charge two days after entry of the guilty plea. At that time, the DUI complaint was dismissed because under case law current at the time, the remedy for late filing of the complaint (eight days instead of the five days authorized by Rule 130(d)), was dismissal. That case law was reversed some time later, but before the statute of limitations on the DUI charge had run. The Commonwealth re-filed the DUI charge. Thereafter, the complaint was dismissed on double jeopardy grounds and the Commonwealth appealed.

      . See Commonwealth v. Buechele, 298 Pa.Super. 418, 444 A.2d 1246, 1250 (1982) ("issuance by a district magistrate of a citation for a summary offense violating the Vehicle Code is not a prosecution or a trial which causes the anxiety and strain to a defendant, or which can be viewed as harassment by the government, such as is prohibited by our system of justice”).

      . The fact that Kline had an odor of alcohol about her person would not be sufficient, without more, to establish that she was under the influence of alcohol to a degree which rendered her incapable of safe driving. Commonwealth v. McGinnis, 511 Pa. 520, 526 n. 4, 515 A.2d 847, 851 n. 4 (1986).


author: FORD ELLIOTT, Judge:

text:
    592 A.2d 735
    Anna M. ARNOLD, Individually and as Administratrix of the Estate of Mitchell R. Carion, Appellant, v. James LOGUE, Jr., Erie Insurance Group/Erie Insurance Exchange/Erie Insurance Company, Merritt I. Edner Agency and Merritt L. Edner, and Employers Mutual Casualty Company.
    Superior Court of Pennsylvania.
    Argued Sept. 12, 1990.
    Filed June 12, 1991.

      John G. Achille, Brookville, for appellant.
    John C. Dennison, Brookville, for Merritt, appellee.
    Before KELLY, FORD ELLIOTT and BROSKY, JJ.
   FORD ELLIOTT, Judge:

This is an appeal from a judgment denying appellant’s claims for work loss, survivors, and medical benefits, plus interest, costs and attorney’s fees under her no-fault automobile insurance policy against appellees, Merritt L. Edner and Merritt I. Edner Agency. Appellant contends that the trial court made numerous errors in interpreting the no-fault insurance law; thereby, denying her recovery. Based upon our review of the record in this case and the applicable law, we must affirm the trial court.

On April 4, 1977, appellant engaged appellee, Merritt L. Edner and the Merritt I. Edner Agency, to purchase no-fault automobile insurance for a 1968 Pontiac. The Edner Agency is a general insurance agency with authority from several insurance companies to issue insurance coverage binders. As the conversation between the two parties revealed that appellant could not be issued a binder with any of the insurance companies that appellee represented, appellant’s insurance application was forwarded to the Pennsylvania Insurance Commissioner for assignment in the assigned risk pool. As appellant’s application was assigned to the Employers Mutual Casualty Company, she was issued a no-fault automobile insurance policy covering her 1968 Pontiac.

At the time her policy was issued, appellant’s household members were her three children, Mitchell, Wendy, and Terry, and her mother, Nellie Ross. On April 30, 1977, appellant’s sixteen-year-old son, Mitchell, was killed in an automobile accident while driving appellant’s automobile insured by Employers. Soon after the accident, appellant contacted the Edner Agency concerning Mitchell’s death. Merritt Edner notified Employers of the fatal accident, and in July of 1977, Employers paid a death benefit of $1,500.00 for Mitchell’s funeral expenses.

In the later part of 1982, appellant became aware through a newspaper article that a class action suit had been filed seeking to recover work loss benefits from a fatal accident involving an unemployed minor child in the policy-holder’s household. Appellant contacted the Edner Agency to obtain Employers’ address and wrote a letter to Employers on February 1, 1983, requesting additional benefits. As appellant’s request was denied, she issued a writ of summons on April 29, 1983, and filed her complaint on June 27, 1983. The original-named defendants in appellant’s suit included appellees along with James Logue, Jr., and Erie Insurance Company. Employers Mutual Casualty Company was granted summary judgment and all claims against Logue and Erie Insurance Company were settled as of March, 1986.

Following a non-jury trial, the trial court, on March 24, 1988, found in favor of appellees, Merritt L. Edner and the Merritt I. Edner Agency. Appellant filed post-trial motions which were denied on February 15, 1990. A notice of appeal to this court was filed on March 13, 1990. Appellant praeciped to have the judgment entered in this matter on April 19, 1990.

Appellant raises the following issues for our review:

I. Did the trial court abuse its discretion in finding that Appellees Edner and Edner Agency did not breach a duty of care owed Appellant either in tort or contract by incorrectly informing Appellant that no benefits were due except the $1,500 death benefit when in fact other no-fault benefits were due, including $15,000 wage loss and survivors benefits?
II. Did the trial court err in finding that a general insurance agent has no contractual or fiduciary duty to the insured for whom he writes a policy, and no agency relationship exists between the insurance agent and the insured?
III. Did the trial court err in finding that the Dercoli case did not apply to an insurance agency/agent that misrepresents whether additional benefits were due?
IV. Did the trial court err in finding that the deceased would not contribute to his mother’s support where the Appellant need only show probable contribution, but in fact offered evidence that the decedent had contributed by working on the farm and had recently quit school and started full-time employment in order to be able to contribute to the household.
V. Did the trial court err in failing to allow Appellant to recover damages for lost wages, interest at 18%, attorney fees, and survivor benefits, which were clearly due under the No-Fault Act, or improperly allow Appellees a credit for payment for settlement of the claim against Defendant Erie?
VI. Did the court too narrowly construe case/statutory law denying No-Fault benefits setting up an impenetrable barrier?

Appellant alleges that the trial court erred in failing to impose a duty upon appellee, an insurance agency which represented many insurance companies, to inform her of all claims relative to her no-fault policy. Appellant contends that the duty discussed by the supreme court in Dercoli v. Pennsylvania National Mutual Insurance, 520 Pa. 471, 554 A.2d 906 (1989), of “good faith” and “fair dealing” between an insurer and its insured is applicable to the instant case concerning a general insurance agency and its client. The trial court held that the Dercoli duty is not applicable in this instance due to the fact that appellee is a general insurance agency and not appellant’s insurer.

Recently, in Miller v. Keystone Insurance Company, 402 Pa.Super. 213, 586 A.2d 936 (1991), we addressed the duty of good faith enunciated in Dercoli. In Miller, we stated that the duty was premised on three factors. They are: “(1) the insurer had assumed the responsibility for processing its insured’s claims; (2) the insurer knew that the insured was relying exclusively on its advice and counsel; and, (3) the insurer had knowledge regarding an additional claim for benefits to which Mrs. Dercoli was entitled and it failed to disclose such information.” Id., 586 A.2d at 941.

Our review of the record and applicable case law reveals that appellant’s claim for work loss benefits was not cognizable under Pennsylvania law at the time appellant made her claim under her no-fault policy; therefore, the third factor as set forth in Miller cannot be satisfied and we decline to address the matter concerning the applicability of the Dercoli duty upon a general insurance agency in dealing with its clientele.

Instantly, the fatal accident involving appellant’s son occurred on April 30, 1977. Soon thereafter, appellant notified appellee, Merritt Edner, of Mitchell's death and presented appellee with the funeral bill. Appellee completed the necessary form, “Auto Liability Accident Notice,” which notified the insurer of claims having been presented on policies issued through a general agent’s office. A death benefit of $1,500 was paid to appellant by her insurer in July of 1977 for Mitchell’s funeral expenses. At the time that appellant presented her claim for benefits under her no-fault policy, spring of 1977, a work loss benefit for an estate of a deceased victim was not cognizable in Pennsylvania. Therefore, there can be no duty imposed on an insurer or its agent to so inform.

We find this case factually very similar to Gabovitz v. State Auto Ins. Assoc., 362 Pa.Super. 17, 523 A.2d 403 (1987). Gabovitz involved a case where an executrix of an estate commenced a class action suit on behalf of her deceased husband’s estate, as well as on behalf of others similarly situated, in order to recover post-mortem work loss benefits under the Pennsylvania No-Fault Act. Gabovitz had recovered funeral and survivor’s benefits in April of 1976, two months following her husband’s fatal accident. Gabovitz made a claim for payment of work loss benefits in November of 1980. As her claim was denied, Gabovitz filed suit to recover the work loss benefits in December of 1980. Upon affirming the trial court’s decision in favor of the insurer, we held that the insurer did not have an affirmative duty to inform Gabovitz, at the time she filed her original claim for benefits under the no-fault act, of all possible benefits, especially those which were not recognized as of yet. Gabovitz, supra.

In Miller, we agreed with the Gabovitz panel that in 1976, when the Gabovitz estate’s claim was processed by the insurer, there existed no recognized recovery for postmortem work loss benefits. We stated that in 1976, without more, both “the insured and the insurer had equal information regarding whether post-mortem work loss benefits someday would be recoverable by an estate.” Miller v. Keystone Insurance Company, supra., 402 Pa.Super. at -, 586 A.2d at 943. Although we decline to address whether appellees were acting as agents of the insurer in this instance, in Miller we recognized that an insurer or its agent is not required to predict future changes in the law or future entitlements to benefits. Id. Consequently, as appellant’s claim for post-mortem work loss benefits was not cognizable in 1977, when Mrs. Arnold had her claim processed by appellees and paid by Employers, we affirm the trial court in regard to all claims, i.e., interest, costs, and attorney’s fees, arising from the post-mortem work loss issue on appeal.

Appellant also argues that the trial court erred in failing to impose a duty upon appellees, Merritt Edner and the Edner Agency, to inform appellant of her survivor’s benefits under her no-fault policy. Due to our belief that appellant is not eligible for survivor’s benefits, we decline to discuss whether appellees could be held responsible for failing to inform appellant of this particular benefit.

The No-Fault Act had defined survivor and survivor’s loss.

“Survivor” means:
(A) spouse; or
(B) child, parent, brother, sister or relative dependent upon the deceased for support.
“Survivor’s loss” means the:
(A) loss of income of a deceased victim which would probably have been contributed to a survivor or survivors, if such victim had not sustained the fatal injury; and
(B) expenses reasonably incurred by a survivor or survivors, after a victim’s death resulting from injury, in obtaining ordinary and necessary services in lieu of those which the victim would have performed, not for income, but for their benefit, if he had not sustained the fatal injury,
reduced by expenses which the survivor or survivors would probably have incurred but avoided by reason of the victim’s death resulting from injury.

40 P.S. § 1009.103 (repealed). Also, the Act provided a $5,000 limit for survivor’s benefits. 40 P.S. § 1009.202(d) (repealed). Although appellant is the deceased’s mother, she also needed to prove that she was dependent upon the deceased for support in order to qualify as a “survivor” under the Act. We have defined “dependent” “to include any spouse or relative to whose support a decedent made substantial contributions—whether of financial resources or uncompensated services, 40 P.S. § 1009.103—such that without the decedent’s contributions, the claimant is unable to continue the lifestyle that was made possible through the decedent’s contributions to the claimant’s support.” Rago v. State Farm Automobile Insurance Company, 355 Pa.Super. 207, 212, 513 A.2d 391, 394 (1986).

Appellant contends that she has met her burden of proof in regard to survivor’s benefits in that the deceased performed chores on the farm and that, had he been given the opportunity, the deceased’s earnings from his full-time position would have been used to defer the household expenses. In light of the Rago analysis, the trial court found the following:

... the deceased was only 16 years of age. He had obtained a job and worked just two days before the accident that took his life. Prior to that, while he was still a student he had worked part time but spent his earnings from that part time work on his own personal needs. There is no evidence whatsoever that any of the deceased’s earnings were ever used to support the plaintiff nor is there any evidence to support a finding that the plaintiff incurred any expenses to obtain ordinary and necessary services which the deceased would have performed but for his death.

Trial court opinion, 3/24/88 at 3. Although in Rago we held that the parent need not be supported solely by the deceased in order to qualify as a survivor, the facts in Rago were much more favorable to establish dependency than they are presently. In Rago, the court found the following:

Christine Anne Sciambra was 20 years old at the time of her death. Prior to her death, Christine shared a modest two-bedroom apartment with her mother. Both women worked at Dali-fresh: Christine worked as a • seasoner; her mother worked as a packer. Their net weekly incomes were $125 and $103, respectively. With the exception of approximately $20 per week that Christine kept for her own clothes, cosmetics, entertainment, etc., both mother and daughter contributed their entire paychecks to pay for household expenses. The total annual income which they jointly contributed to the household was $10,-800. The estimated yearly expenses of the joint household were $11,020.

Rago, supra., 355 Pa.Super. at 210, 513 A.2d at 392.

Given these facts, we held that:

[njeither Ms. Sciambra nor Christine was the sole support or the main support of the other. Instead, the two were interdependent in that each supported and was supported by the other. The facts of record show that Christine’s assistance and financial support provided her mother with some of the ordinary necessities for her mother’s modest and reasonable living standard consistent with persons in her socioeconomic position. The record also evidences that Ms. Sciambra was unable to maintain her modest lifestyle in the absence of Christine’s support. Therefore, Ms. Sciambra was dependent on her daughter Christine for purposes of entitlement to survivor’s benefits under the No-fault Act, and we accordingly reverse the trial court’s order and remand for a determination of proper benefits.

Id., 513 A.2d at 394 (citations omitted). Our review of the instant record does not evidence such an interdependence between appellant and the deceased, nor does it reveal that appellant incurred expenses to obtain services that the deceased would have performed but for his death. Accordingly, we affirm the trial court in regard to appellant’s claim for survivor’s benefits.

Based upon the foregoing, appellant’s ineligibility for work loss and survivor’s benefits, appellant’s claims for interest, attorney’s fees, and costs are dismissed.

Judgment affirmed.

      . Terry L. Carion, one of appellant’s children and members of her household, owned a vehicle insured by Erie Insurance Company. Erie paid a $15,000.00 wage loss benefit under Carion’s policy for Mitchell’s death.

      . Pursuant to Pa.R.A.P. 905(a), appellant’s appeal was perfected as of that date.

      . As we are affirming the trial court in this case, we are mindful of the fact that we may do so on a basis other than that used by the trial court as long as the result is correct. McKenna v. Mooney, 388 Pa.Super. 298, 565 A.2d 495 (1989).

      . As discussed in Miller, the supreme court in September of 1980, by way of Allstate Insurance Co. v. Heffner, 491 Pa. 447, 421 A.2d 629 (1980), determined that a surviving spouse could recover work loss benefits on behalf of his or her deceased husband or wife. In July of 1982, this court decided Freeze v. Donegal Mutual Insurance Co., 301 Pa.Super. 344, 447 A.2d 999 (1982), and determined that an estate of a deceased victim could recover work loss benefits under the No-Fault Act. This court characterized its holding in Freeze as a logical extension of Heffner, but it was not until Heffner was decided that insurers were on notice of the potential recovery by an estate for work loss benefits. See Miller v. Keystone Insurance Co., supra.

      . Appellant contends in her brief that she was denied work loss benefits due to her recovery from Erie Insurance for said benefits. Not only does the record not support appellant’s contention, but based on our decision today, appellant’s allegation is specious at best.


author: CERCONE, Judge:

text:
    592 A.2d 740
    In the Interest of Donovan McELRATH, a Minor, Appellant, v. COMMONWEALTH of Pennsylvania.
    Superior Court of Pennsylvania.
    Argued April 2, 1991.
    Filed June 13, 1991.

      Lenora M. Smith, Harrisburg, for appellant.
    Kathy G. Wingert, Deputy Dist. Atty., Harrisburg, for Com., appellee.
    Before JOHNSON, HUDOCK and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from an order placing appellant, Donovan McElrath, a juvenile, on strict probation following an adjudication of delinquency. For the following reasons, we affirm.

The events underlying the instant appeal began on March 21, 1990 when appellant, dressed in a black jacket and light colored pants, accosted Mr. Robert “Catherine” McIntyre. The appellant produced a black gun and ordered the victim, “Give me your purse.” The victim contacted the police, providing a full description of the perpetrator and indicating the direction in which he had fled. A person matching the description provided by the victim was observed by a number of people, both citizens and police officers, as he travelled from the scene of the crime to his residence at 1333 Green Street. The arresting officers entered the residence within a short time after the robbery and found appellant changing his clothes. The officers also discovered a black B-B gun on a table in the hallway of the residence.

The police officers, one of whom was in uniform, escorted appellant down to the street where the victim was waiting in a police cruiser. The victim thereupon identified appellant as his assailant and stated that the weapon found by the police was the weapon used against him. This identification took place less than one half hour after the robbery.

Appellant was subsequently arrested and charged with robbery. Prior to the adjudicatory hearing on his case, appellant filed a motion to suppress a pre-arrest show-up as well as the out-of-court identification. This motion was denied. The lower court then conducted an adjudicatory hearing which resulted in a determination that appellant had committed the acts alleged. Thereafter, a disposition hearing was held before the Honorable Sebastian D. Natale, who found appellant delinquent and placed him on strict probation. The instant appeal followed presenting three questions for our review: (1) whether the lower court erred by failing to suppress the pre-arrest and subsequent pretrial identifications as unduly suggestive; (2) whether the in-court identification should have been suppressed as tainted by the unduly suggestive pre-trial identification; and (3) whether the evidence was sufficient to sustain a finding that appellant was the perpetrator of the acts charged.

In reviewing the denial of a motion to suppress evidence, an appellate court has a duty to determine whether the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings. Commonwealth v. Nelson, 399 Pa.Super. 618, 621, 582 A.2d 1115, 1117 (1990). In making this determination, an appellate court considers only the evidence of the prosecution’s witnesses and so much of the evidence for the defense which remains uncontradicted when fairly read in the context of the record as a whole. Id., citing Commonwealth v. Lark, 505 Pa. 126, 477 A.2d 857 (1984). When the evidence viewed in this manner supports the factual finding of the suppression court, we will reverse only if there is an error in the legal conclusion drawn from those factual findings. Commonwealth v. Daniels, 404 Pa.Super. 272,-, 590 A.2d 778, 779 (1991).

Appellant’s first and second arguments are intertwined and will be considered together. Appellant contends that it was error for the lower court to refuse to suppress the pre-trial identification procedures because they were so unduly suggestive as to render them unreliable. The corollary of this claim is that the in-court identification should have been suppressed as irretrievably tainted by the suggestive initial identification procedures. In reviewing the propriety of identification evidence, the central inquiry is whether, under the totality of the circumstances, the identification was reliable. Commonwealth v. Sample, 321 Pa.Super. 457, 461, 468 A.2d 799, 801 (1983), citing Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) and Commonwealth v. Sutton, 496 Pa. 91, 436 A.2d 167 (1981). Suggestiveness in the identification process is but one factor to be considered in determining the admissibility of such evidence and will not warrant exclusion absent other factors. Id. 321 Pa.Super. at 461-62, 468 A.2d at 801. As the Sample court explained, the following factors are to be considered in determining the propriety of admitting identification evidence: the opportunity of the witness to view the perpetrator at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the perpetrator, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Id., 321 Pa.Superior Ct. at 462, 468 A.2d at 801. The corrupting effect of the suggestive identification, if any, must be weighed against these factors. Id.

Appellant’s convoluted argument appears to find the circumstances of this case to have been unduly suggestive because it involved a one-on-one confrontation between the victim and a single suspect, the appellant, at which a uniformed police officer was present. Appellant also focuses on the fact that the victim noticed the appellant’s gun in the hand of a police officer before he looked at appellant’s face and made the identification. However, this argument attempts to create suggestiveness where none was present. The facts outlined above indicate that the victim’s prompt complaint enabled the police to use the description provided so as to track down and locate appellant almost immediately after the perpetration of the robbery. Less than one half hour after the crime, the police were able to present appellant for a viewing by the victim. This is proper procedure. Absent some special element of unfairness, prompt, one-on-one identification is not per se violative of the accused’s constitutional rights, even where the accused has been returned to the scene of the crime in a police cruiser. Commonwealth v. Clemmons, 505 Pa. 356, 522-23, 479 A.2d 955, 960 (1984). See also Commonwealth v. Capers, 340 Pa.Super. 136, 141, 489 A.2d 879, 882 (1985) (prompt on-the-scene identifications are generally deemed reliable and are not subject to suppression in the absence of special elements of unfairness). The fact that the victim in the instant case noticed appellant’s gun before focussing on appellant’s face at the prompt pre-arrest identification does not render it either unreliable or unduly suggestive. The victim’s view of an assailant’s weapon, whether before or after an identification is made, does not qualify as a special element of unfairness. Commonwealth v. Perdie, 249 Pa.Super. 406, 410 n. 5, 378 A.2d 359, 361 n. 5 (1977).

Assuming, arguendo, that we had determined the identification procedure employed in the instant case to have been unduly suggestive, appellant’s argument ignores the fact that reliability is the linchpin in assessing the admissibility of a challenged identification. Commonwealth v. Sample, 321 Pa.Super. at 462, 468 A.2d at 801. Here, the victim testified that appellant initially confronted him from a distance of about eight to ten feet, and that he viewed his assailant at close range for approximately five seconds while he was surrendering his purse. N.T. 4/10/90 at 63-70. In responding to a question regarding his opportunity to view the perpetrator’s visage, the victim flatly stated, “I will never forget his face.” Id. at 72.

A fair reading of the record shows that although the victim only viewed the perpetrator for a short time, appellant closely matched the description the victim provided to the police and the victim strongly focussed on the attacker’s facial appearance. Further, the victim unequivocally identified appellant as the attacker when confronting him outside appellant’s residence. See Commonwealth v. Capers, supra (although the victim was able to see her attacker for only a brief period, her on-the-scene and in-court identifications were admissible where she had given the police an accurate description, testified that when she viewed the attacker shortly after the crime she recognized the perpetrator’s jacket and facial features, and her identification was positive). Under the circumstances presented by the instant case, even were we able to conclude that the identification procedure had been suggestive, we still could not find the victim’s pre-trial in-court identification to be unreliable.

Appellant also objects to the testimony provided by Christina Rohrbach, who reported to the police that on the night in question she noticed a black male running down the street on which she lived. N.T. 4/10/90 at 40. This male corresponded to the description of the perpetrator provided by the victim. Id. After appellant was arrested, and while he was sitting in a police cruiser, Ms. Rohrbach identified him as the person she saw running in her neighborhood. Id. at 42.

The witness testified that the interior of the vehicle was dark and she consequently had difficulty discerning the appellant’s facial features while he was in the cruiser. Id. However, she stated that the jacket worn by the person in the cruiser exactly matched the jacket worn by the running man. Id. Further, the description the witness provided of the runner and his clothing closely matched the victim’s description. Id. at 41-47. At the suppression hearing Ms. Rohrbach unhesitatingly identified appellant as the person she saw in her neighborhood on the night of the robbery. Id. at 41-43. In light of the standard which we have already set forth, we cannot find this testimony to be the result of suggestive police procedure nor can we find it inherently unreliable. See also Commonwealth v. Dickerson, 226 Pa.Super. 425, 313 A.2d 337 (1974) (identification of defendant by crime victim was not unduly suggestive although the defendant was handcuffed and sitting in police wagon at the time).

We note that in connection with his first two claims, appellant has also discussed at length the testimony of Police Officers Horst, Taylor and Rivera regarding the methodology they employed to locate appellant and present him to both Ms. Rohrbach and the victim for identification. This extensive narrative does not appear to advance a theory that the police officers’ testimony should be suppressed as somehow infected by the suggestiveness of the circumstances. Rather, appellant seems to argue that the behavior of the police in pursuing and apprehending appellant serves to bolster his claim that the identification procedure was suggestive. The proper question, however, when analyzing the suggestiveness of an identification does not concern the methods employed to apprehend a suspect. The correct focus centers on whether the end result of the quest has presented a suspect to a witness under suggestive circumstances, and if so, whether the resulting identification is reliable enough to overcome that suggestiveness. See Commonwealth v. Sample, supra. We have already concluded that the identifications were not suggestive and that they were reliable. Finding no error in the legal conclusions drawn by the lower court, we can grant appellant no relief on his suppression claim. As the pre-trial identification testimony was properly admitted, we affirm the lower court’s decision to admit the victim’s in-court identification because there are no grounds upon which we could find it to be tainted.

The final question presented by appellant is whether there was sufficient evidence upon which the lower court could base its determination that he was guilty, beyond a reasonable doubt, of the crime charged. The thrust of appellant’s objection is that the description of the assailant was general enough to fit “a great many persons” and that the only truly relevant testimony presented was that of the victim. When faced with a sufficiency claim, this court must determine whether all the elements of the crime have been proven beyond a reasonable doubt viewing the record in the light most favorable to the prosecution as the verdict winner. Commonwealth v. Glover, 399 Pa.Super. 610, 615, 582 A.2d 1111, 1114 (1990).

A person is guilty of robbery if, in the course of committing a theft, he threatens another with or intentionally puts him in fear of immediate serious bodily injury. 18 Pa.C.S.A. § 3701(a)(1)(h). Robbery may also be sustained where, in the course of committing a theft, a person takes or removes property from another person by force, however slight. Id. § 3701(a)(l)(v); Commonwealth v. Williams, 379 Pa.Super. 538, 542 n. 1, 550 A.2d 579, 580 n. 1 (1988), allocatur denied, 522 Pa. 612, 563 A.2d 498 (1989). Accord Commonwealth v. Nelson, supra. The force may be actual or constructive. Commonwealth v. Williams, 379 Pa.Super. at 544, 550 A.2d at 581. Constructive force consists of the use of threatening words or gestures sufficient to separate the victim from his property. Commonwealth v. Brown, 506 Pa. 169, 176, 484 A.2d 738, 741 (1984).

Even discounting all the other testimony presented, the record, as previously discussed, shows that within a half hour of the crime, the victim immediately and positively identified appellant as the person who took his purse at gunpoint. The record further discloses that the victim was positive as to the facial appearance of the robber and unhesitatingly indicated, both in- and out-of-court, that appellant was the assailant who threatened him with a gun and took his property. This testimony, if believed, was enough to sustain a conviction for robbery. See Commonwealth v. Flynn, 314 Pa.Super. 162, 460 A.2d 816 (1983) (identification of defendant by victim was sufficient to sustain convictions for rape, robbery and burglary).

The real focus of appellant’s argument, however, is to challenge the credibility of the victim’s testimony. In particular, appellant objects to the fact that the victim is a tall, white transsexual who takes hormones and is consulting with a psychiatrist regarding gender identity. See N.T. 4/10/90 at 69-77. However, this argument goes to the weight to be given the victim’s testimony, not to the sufficiency of the evidence adduced at trial. Credibility is for the trier of fact, who is free to believe all, part or none of the evidence presented. Commonwealth v. Nelson, 399 Pa.Super. at 623-24, 582 A.2d at 1118, citing Commonwealth v. Jackson, 506 Pa. 469, 485 A.2d 1102 (1984). Where issues of credibility and weight of the evidence are concerned, it is not the function of an appellate court to substitute its judgment based on a cold record for that of the trial court. Commonwealth v. Paquette, 451 Pa. 250, 257, 301 A.2d 837, 841 (1973). See also Commonwealth v. Wallace, 522 Pa. 297, 315, 561 A.2d 719, 728 (1989), citing Commonwealth v. Nelson, supra (under ordinary circumstances, an appellate tribunal should not entertain a challenge to the weight of the evidence since their examination is confined to the “cold record”). A new trial is warranted on a challenge to the weight of the evidence only if the verdict is so contrary to the evidence as to shock one’s sense of justice. Commonwealth v. Glover, 399 Pa.Super. at 615-16, 582 A.2d at 1114. In light of the foregoing discussion it suffices to say that we are not shocked. We therefore conclude that appellant is entitled to no relief based on his third argument.

Order affirmed.

      . The record indicates that, in accordance with the Juvenile Act, 42 Pa.C.S.A. § 6301 et seq., appellant filed no post-trial motions. See Commonwealth v. Clay, 376 Pa.Super. 425, 546 A.2d 101 (1988) (the Juvenile Act does not provide for post-trial motions for relief and procedures for post-trial review do not apply to juvenile proceedings). Accord Matter of Smith, 393 Pa.Super. 39, 573 A.2d 1077 (1990) (en banc) (the Juvenile Act does not provide for the filing of post-trial motions; however, post-adjudication motions are the appropriate means by which allegations of ineffectiveness of counsel may be brought to the attention of the trial court and preserved for appellate review).

      . The argument in appellant's brief mischaracterizes the nature of the in-court identification that occurred at the suppression hearing. The witness did not hesitate to pick out appellant from among the persons present in the courtroom. However, the lower court judge felt it necessary to clarify the identification in light of defense counsel’s response:
      Q. (By the Commonwealth): Is the person you saw running in the courtroom today?
      A. Yes, he is.
      Q. Where is he sitting:
      A. He is right there. (Indicating.)
      Q. (By Defense Counsel) Where? Let the record reflect that she has pointed to the gentleman sitting in—
      The Court: Who are you pointing to?
      A. In the gallery there.
      The Court: Who are you pointing to?
      A. I said over there. (Indicating.)
      The Court: What is the person wearing?
      A. He was wearing a black jacket. Right now? A white shirt. I said "Over there." (Indicating.)
      The Court: Well, will you go down and touch the person you are identifying right now?
      N.T. 4/10/90 at 40-41. The witness promptly walked to appellant and indicated that he was the person to whom she had been referring. Id. A fair reading of this testimony leads us to conclude that, although the witness’ gesture may have been ambiguous regarding the exact person to whom she pointed, the witness was not confused as to the identity of the person she saw running on the night of the robbery.


author:
FORD ELLIOTT, Judge: DEL SOLE, Judge,
      BROSKY, Judge,

text:
    592 A.2d 746
    Anthony F. DELVERME and Scott P. Delverme, Appellants, v. Terry PAVLINSKY and Kenneth Weaver.
    Superior Court of Pennsylvania.
    Argued Feb. 27, 1991.
    Filed June 14, 1991.

      Ewing D. Newcomer, Uniontown, for appellants.
    James R. Michael, Uniontown, for appellees.
    Before DEL SOLE, FORD ELLIOTT and BROSKY, JJ.
   FORD ELLIOTT, Judge:

This is an appeal from the July 13, 1990, order of the Court of Common Pleas, Fayette County, denying appellants’ petition for hearing to reinstate appeal and/or extension of time in which to file complaint, from a decision rendered by a District Justice. For the reasons which follow, we reverse the order of the trial court and reinstate appellants’ appeal from the order of the District Justice.

Appellants, Anthony F. DelVerme and Scott P. DelVerme, instituted an action before a district magistrate against appellees, Terry Pavlinsky and Kenneth Weaver, seeking to recover $979.69 in damages to their automobile as a result of an accident involving appellees’ dog. Appellee, Terry Pavlinsky, filed a counterclaim seeking to recover $300.00 for the death of his dog. As a result of the counterclaim being filed appellants’ motor vehicle insurance carrier retained attorney Susan D. O’Connell to represent appellants on the counterclaim. Following a hearing before District Justice Vernon, judgment was entered in favor of appellees on both the original claim and the counterclaim. The decision was not announced by the magistrate in open court, but rather was mailed to counsel of record for the respective parties. Appellants’ counsel failed to inform them of the magistrate’s decision, and after waiting several days without hearing anything, Scott DelVerme finally contacted the magistrate’s office and was informed of the decision. At that time Scott DelVerme was also informed of his right to appeal, and did indeed file a pro se appeal in the Fayette County Prothonotary’s Office. The notice of appeal was filed timely and served upon appellees and at the magistrate’s office. However, the appellants failed to file a timely complaint as required under Rule 1004(A). Therefore, appellees filed a praecipe to strike the appeal for failure to comply with Rule 1004(A). Meanwhile, without notice to appellants, Allstate Insurance Company had forwarded the sum of $309.00 to appellees’ counsel as payment in full for the judgment on the counterclaim.

After receiving notice that their appeal had been stricken, appellants retained a local attorney who immediately filed a Petition for Hearing to Reinstate Appeal and/or for Extension of Time in which to File Complaint. The Petition was initially presented to the Fayette County motions judge on July 6, 1990, however, because of some confusion surrounding when appellees’ counsel received notice that the petition was going to be presented, the petition was re-presented on July 13, 1990. On that date Judge Solomon issued an order refusing appellants’ petition. A timely appeal to this court followed.

Appellants raise the following issues for our consideration:

I. Whether Defendants waived any objection to the Plaintiffs’ Petition For Hearing To Reinstate Appeal And/or For Extension of Time In Which To File Complaint:
A. For the failure to appear and object to the Petition at Motions Court on June 29, 1990?
B. For the failure to file an Answer to Plaintiffs’ Petition?
C. For objecting to Plaintiffs’ Petition because the Counterclaim had already been paid and not for any reasons later cited by the Court?
II. Whether the Lower Court erred in:
A. Having the Court Administrator to [sic] return the Petition to Counsel for representation when no objection had been ever filed or received?
B. Refusing the Petition as the matters set forth therein constitute good faith under Pa.R.C.P.DJ. No. 1004?
C. Denying Plaintiffs the opportunity to present the facts of this matter and supplement the original Petition with additional facts demonstrating good faith?

We shall address these issues in inverse order.

Appellants second issue is subdivided into three parts. Because we believe that part B raises the crucial issue in this appeal we shall address that issue first. Appellants maintain that the trial court erred in refusing to grant their petition to reinstate appeal and to allow them more time to file a complaint. Implicit in appellants argument is the notion that the rules of procedure governing appeals from magistrate’s decisions are to be construed liberally with an eye toward a just resolution of the matter at hand. Appellees, on the other hand, favor a narrower interpretation of the procedural rules; one which imposes the sanction of having an appeal stricken if the rules are not strictly followed.

The trial court embraced appellees’ position and concluded that the rules of procedure governing appeals from magistrate’s decisions must be strictly complied with, and that since appellants failed to file a complaint within twenty days of their notice of appeal, and since appellants did not demonstrate good cause for failing to comply with this rule, the appeal was properly stricken. We believe the trial court erred in interpreting the procedural rules so narrowly and concluding that appellants had not shown good cause for failing to file a timely complaint after their notice of appeal.

It is our opinion that the rules of procedure must be liberally construed so as to guaranty that actions such as the present one are resolved in a just, speedy and inexpensive manner consistent with the mandates of Rule 126. In the past, the majority of cases interpreting the rules of procedure relating to appeals from decisions of district justices favored a very strict and narrow interpretation of those rules. See City of Easton v. Marra, 230 Pa.Super. 352, 326 A.2d 637 (1974); Voynik v. Davidson, 69 D. & C.2d 267 (1975); Cluck v. Geigley, 58 D. & C.2d 429 (1972). The courts would routinely strike appeals if the rules of procedure were not followed to the letter. However, the modern trend has tended toward a more liberal interpretation of these rules. See Quarato v. Facelifters, Ltd., 305 Pa.Super. 536, 451 A.2d 777 (1982) (court concluded that justice was served by reinstating appeal even though appellant failed to comply with the rule requiring that sender’s receipt be attached to the proof of service filed with the court); Katsantonis v. Freels, 277 Pa.Super. 294, 419 A.2d 778 (1980) (appeal was reinstated even though proof of service was not filed within five days as required under Pa.R.C.P.DJ. No. 1005(B)); Seiple v. Pitterich, 35 Pa.D. & C.3d 592 (1984) (strict compliance with rules of civil procedure for district justices not required, and absent a showing of prejudice resulting from a failure to strictly comply with the rules a stricken appeal will be reinstated); Beck v. Weitzenhoffer, 49 Pa.D. & C.3d 112 (1988) (weight of recent authority requires a liberal interpretation of the rules of procedure leading to the conclusion that an appeal should be reinstated even though appellant failed to file proof of service of the notice of appeal as required under the rules).

The two important factors in each of these cases advancing the notion of liberal construction of these rules are, first, there has been no showing of prejudice resulting from the failure to comply strictly with the rules and, second, there has been good cause shown for reinstating the appeal. We note that both of those elements exist in this instance. There is no indication in the record in this case that appellees were in any way prejudiced by appellants failure to file a complaint within the twenty-day time period. The notice of appeal had been timely filed and served upon appellees. Therefore, appellees were fully aware that an appeal had been taken. Further, the lawsuit itself was based upon a relatively simple set of facts, and thus appellees knew what to expect in the complaint. Thus, we feel confident that appellees would suffer no prejudice if the appeal was now reinstated and appellants permitted to file their complaint. Second, we believe that appellants have demonstrated good cause for failing to comply with the rules so as to warrant a reinstatement of the appeal. Appellants were initially unrepresented at the magistrates level, and only received the assistance of counsel as a result of the counterclaim. However, after the hearing, counsel retained by appellants’ insurance carrier never informed appellants of the decision and paid the counterclaim without appellants’ knowledge. It was only through their own inquiry at the magistrate’s office that appellants learned of the decision and their right to an appeal. Through the assistance of personnel at the prothonotary’s office the appellants were able to prepare a notice of appeal and file the same with the court. However, as appellants’ maintain, they were not aware that they were then required to file a complaint within twenty days of the notice of appeal. Given that appellants had already filed a complaint in the magistrate’s office it is not unreasonable to conclude that they would be unaware that it was necessary to file yet another complaint in the court of common pleas. Appellees contend that appellants were on notice of this requirement by virtue of the language on the notice of appeal form which states:

If appellant was claimant (See Pa.R.C.P.DJ. No. 1001(6)) in action before District Justice he MUST FILE A COMPLAINT within twenty (20) days after filing his NOTICE OF APPEAL.

While such language is certainly clear to those in the legal profession, the legal significance of filing a new complaint may not be so readily understandable to a person with no legal background who is working his way through this appeal process for the very first time. Further, as soon as appellants received notice that their appeal had been stricken they immediately retained counsel in an effort to rectify the situation. We believe that appellants’ actions demonstrate an attempt to comply with all the rules for taking an appeal from a magistrate’s decision, and do not think that they should be punished for inadvertently failing to comply with one of the rules, particularly when the notice of appeal was timely filed and served upon appellees. Thus, we conclude that good cause existed to reinstate this appeal.

It is our opinion that given the absence of prejudice to appellees, and given the relatively simple nature of the underlying claim, the interests of justice are best served by reinstating the appeal.

Therefore, the order dismissing the petition to reinstate the appeal is vacated; the appeal is reinstated; and appellants shall have twenty (20) days to file a complaint.

Order reversed and case is remanded for further proceedings not inconsistent with this opinion. We do not retain jurisdiction.

DEL SOLE, J., files a concurring statement.

BROSKY, J., files a concurring opinion.

DEL SOLE, Judge,

concurring.

I join the Majority but write to suggest that the Minor Court Rules Committee re-examine the need to require a complaint on appeal from a District Justice. The initial information received when the matter is filed before the District Justice should be sufficient to inform a party about the nature of the claim. Since most, if not all, appeals are next heard before a Board of Arbitrators with the right to appeal de novo before the court, I believe that all parties have more than sufficient opportunity to appraise themselves about the case. The complaint filing requirement only adds to the time and cost of the process and not to providing necessary information to litigants. It seems to me costly and wasteful and its necessity should be reexamined.

BROSKY, Judge,

concurring.

I agree with the observation of the majority “that appellants were on notice of this requirement [the necessity of filing a complaint in common pleas court within twenty days of the filing of their notice of appeal in that court] by virtue of the language on the notice of appeal.” Majority Memorandum at 748, 749. At the same time, however, I dispute the excuse proffered by the majority for appellants’ dereliction in failing to timely file a complaint. In this regard, the majority states, “While such language is certainly clear to those in the legal profession, the legal significance of filing a new complaint may not be so readily understandable to a person with no legal background who is working his way through the appeal process for the very first time.” Id.

First, the language on the Notice of Appeal form, as the Majority concedes, is clear on its face that an appellant must file a Complaint within twenty days after filing the Notice of Appeal. In fact, this language is sufficiently clear to be comprehended by one who is not possessed of a formal law degree. One need not acquire a college or advanced professional degree to fully appreciate a legal requirement that is couched in commonly understood words of the English language. Moreover, this notice informs an appellant in capital, italicized wording that he/she must file a complaint within the twenty-day period after perfecting the form Notice of Appeal.

Nevertheless, because I would also find that appellees were not prejudiced in any way by the failure of appellants to file their Complaint within the requisite twenty-day period, I concur in the decision of the majority to vacate the Order dismissing the Petition to reinstate the appeal and to grant appellants twenty days in which to file their Complaint.

      , Pa.R.C.P.D.J. No. 1002 requires that an appeal from a magistrate's decision be filed within thirty (30) days after the date of the judgment. Pa.R.C.P.D.J. No. 1005 requires that a copy of the notice of appeal be served upon the appellee and the district justice in whose office the judgment was rendered, and that proof of service of the notice of appeal be filed with the court within five (5) days after filing the notice of appeal.

      . Pa.R.C.P.D.J. No. 1004(A) provides that, "[i]f the appellant was the claimant in the action before the district justice, he shall file a complaint within twenty (20) days after filing his notice of appeal.

      . The payment by Allstate Insurance Company was to satisfy the award in appellees’ favor on the counterclaim, and in no way affects appellants’ appeal from the adverse decision on their original claim.

      . Pa.R.C.P. No. 126 provides:
      The rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action of proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties.