author: OLSZEWSKI, Judge:

text:
    585 A.2d 1084
    COMMONWEALTH of Pennsylvania v. David LEE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 5, 1990.
    Filed Jan. 30, 1991.

      Paula M. Lappe, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before CAVANAUGH, OLSZEWSKI and FORD ELLIOTT, JJ.
   OLSZEWSKI, Judge:

This is an appeal from a judgment of sentence following a conviction by a jury of murder in the first degree, criminal conspiracy, and possession of an instrument of crime. Appellant was immediately sentenced to life imprisonment for the murder conviction. Following the trial court’s denial of his post-verdict motions, appellant was sentenced to five to ten years for criminal conspiracy, to run consecutive to the life sentence, and two and one-half to five years for possession of an instrument of crime, to run concurrent to the criminal conspiracy but consecutive to the life sentence.

Appellant presents the following issues for our review: (1) whether the trial court erred when it denied appellant’s motion to strike for cause a prospective juror who was a retired police officer; (2) whether the trial court erred in failing to give a Kloiber charge to the jury; (3) whether the trial court erred in instructing the jury that malice could be inferred from the use of a deadly weapon against a vital part of another’s body; and, (4) whether trial counsel was ineffective. As we find no merit to any of appellant’s claims of error, we affirm the judgment of sentence.

The facts of the present case were adequately summarized by the trial court, and it is unnecessary to repeat them here. Appellant first alleges that the lower court erred when it refused to strike a retired police officer for cause from the jury, given his former association with the police department. Additionally, appellant claims that he was prejudiced, as he was forced to use a peremptory challenge to strike the juror.

In Commonwealth v. Jones, 477 Pa. 164, 383 A.2d 874 (1978), relied upon by appellant, our Supreme Court held that one’s status as a law-enforcement officer in and of itself is insufficient to require disqualification as a juror in a criminal case. Id. at 876. Following Commonwealth v. Colon, 223 Pa.Super. 202, 299 A.2d 326 (1972), the Court held that a police officer may automatically be excluded from serving on a criminal jury if the officer has a real relationship to the case. In Jones, the Court found that the police officer did have a real relationship to the case, because he was an officer on the same force as the officers who were testifying in the case and the focus of the defense was on the alleged involuntary nature of the confession, with respect to which the issue of credibility of testifying officers was a critical factor. Jones, supra at 169, 383 A.2d at 877.

The present case is factually dissimilar to the Jones case, in that here the police officer has been retired for seventeen years. (N.T. 3-29-89, p. 64.) Additionally, the present case does not hinge on the credibility of police officers. Therefore, like the trial court, we find that the proposed juror had no real relationship to the present case.

If a police officer does not have a “real relationship” to the case, he must be viewed in light of the traditional test for qualifications for jurors with the same scope of appellate review. Id. Absent any real relationship to the case, the removal of a law enforcement officer should depend on the sound exercise of discretion by the trial judge. Colon, supra, 223 Pa.Superior Ct. at 206, 299 A.2d at 328. The traditional test for determining whether a prospective juror should be disqualified is whether he is willing and able to eliminate the influence of any scruples and render a verdict according to the evidence, and this is to be determined on the basis of answers to questions and demeanor. Commonwealth v. Sheaff, 365 Pa.Super. 613, 621, 530 A.2d 480, 484 (1987), allocatur granted, 518 Pa. 655, 544 A.2d 1342 (1988), citing, Commonwealth v. Colson, 507 Pa. 440, 490 A.2d 811 (1985), cert. denied, 476 U.S. 1140, 106 S.Ct. 2245, 90 L.Ed.2d 692 (1986). In the present case, during voir dire, the proposed juror repeatedly and unequivocally stated that his status as a former police officer would not prevent him from being fair and impartial in deciding the case. (N.T. 3-29-89, pp. 61-64.) Therefore, we find that the trial judge did not abuse his discretion in denying appellant’s motion to strike this juror for cause.

Appellant next contends that the trial court erroneously declined to charge the jury in accordance with Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954). In Kloiber, supra, the Court held that “where the witness is not in a position to clearly observe the assailant” or her identification is “weakened by failure to identify the defendant on one or more prior occasions, the accuracy of the identification is so doubtful that the Court should warn the jury that the testimony as to identity must be received with caution.” Id., 378 Pa. at 424, 106 A.2d at 826.

Appellant alleges that the jury should have been instructed under Kloiber, with respect to Marlene Fountain’s identification testimony. The trial court was correct in finding that the Kloiber instruction was inapplicable to such testimony. At the time of the shooting, Ms. Fountain told police she did not hear or see anything. She later contacted police, told them that she had seen appellant shoot the victim, and positively identified appellant’s photograph. (N.T. 4-3-89 at pp. 43-44.) She again later positively identified appellant at a preliminary hearing and at trial. At trial, she explained that she had been afraid to become involved because she lived in the building where the shooting took place with her three young children and feared the two assailants would harm her or her family. (N.T. 4-3-89 at pp. 41-42.) We agree with the trial court that the initial fear of the witness to tell the police what she saw cannot be equated with a prior failure to make an identification. Once Ms. Fountain overcame her fear, she identified appellant without hesitation at all times. Additionally, the trial court properly instructed the jury with respect to determining the credibility of the witnesses and evaluating conflicting testimony. (N.T. 4-6-89, at pp. 8-10.) We therefore agree with the trial court that a Kloiber instruction would not have been necessary or appropriate with respect to Ms. Fountain’s testimony. See, Commonwealth v. Smith, 343 Pa. Super. 435, 446, 495 A.2d 543, 548 (1985) (Where rape victim, out of fear, initially told the police that she had not seen her attacker’s face, but later, at the preliminary hearing and at trial, made positive identifications and at no time failed to identify or misidentified appellant, this Court held no cautionary instruction was required.).

Furthermore, appellant argues that the trial court erroneously charged the jury that if it found that a deadly weapon was used to commit the homicide, then the crime for which the defendant must be found guilty is murder. Appellant complains that after this instruction, the jury was left with no alternative but to return a murder conviction. Upon review of the trial court’s jury instructions, to which appellant fails to cite in his brief, we are unable to find the particular instruction to which appellant refers. After instructing the jury on the differences between the burdens of proof required for murder and manslaughter, the court went on to define malice:

... Thus, malice is the thing which distinguishes murder from other types the [sic] homicide. Therefore, to determine whether a homicide constitutes murder, you must first determine whether malice was present. You must decide whether at the time of the killing the slayer was motivated by malice; that is, whether there was a wickedness of disposition, depravity of heart, cruelty, the hardness of heart, evil purpose, recklessness of consequences or mind regardless of social duty. If there was no malice, there was no murder of any degree. Please note that legal malice may be inferred and found from the attending circumstances. As a matter of law, you may infer legal malice from the intentional use without legal excuse or legal justification of a deadly weapon on a vital part of the body of the victim.
A “vital part of the body” means a portion of the body containing organs necessary to the continuance of life. A “deadly weapon” means any firearm or any device designed as a weapon and capable of producing death or serious bodily injury or any other device or instrumentality which, in the manner in which it is used or intended to be used, is calculated or likely to produce death or serious bodily injury. This inference of malice that arises from the use by the killer of a deadly weapon upon a vital part of the victim’s body is one which you are at liberty to apply or not to apply as you see fit. If you find that there were any qualifying facts indicating a contrary intent, such facts would prevent application of this principle by you ...

(N.T. 4-6-89 at pp. 23-25.)

Nowhere does this instruction require the jury to return a murder conviction if it finds that a deadly weapon was used on a vital part of the victim’s body. To the contrary, the instruction only permits the jury to find malice on such basis and, accordingly, to return a murder conviction. The above instruction is also consistent with the well-established rule in this Commonwealth that “the use of a deadly instrument on a vital part of the body is sufficient to establish the specific intent to kill required for a conviction of first degree murder.” Commonwealth v. Carbone, 524 Pa. 551, 562-63, 574 A.2d 584, 590 (1990), citing, Commonwealth v. Butler, 446 Pa. 374, 378, 288 A.2d 800 (1972). We therefore find no error in the trial court’s instruction in this respect.

Finally, appellant asserts five separate claims of ineffective assistance of counsel. In determining whether counsel rendered ineffective assistance, the proper inquiry is “whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order for an ineffective assistance of counsel claim to be successful,

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.

Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. In Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987), our Supreme Court stated:

Our cases clearly indicate that ineffectiveness claims are measured by two components. First, counsel’s performance is evaluated in light of its reasonableness if it is determined that the underlying claim is of arguable merit. Citing, Commonwealth v. Stoyko, 504 Pa. 455, 475 A.2d 714 (1984); Commonwealth v. Wade, 501 Pa. 331, 461 A.2d 613 (1983); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). We also presume that counsel is acting effectively. Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981).
Second, we have required that the defendant demonstrate how the ineffectiveness prejudiced him. Commonwealth v. Clemmons, 505 Pa. 356, 479 A.2d 955 (1984); Commonwealth v. Vogel, 501 Pa. 314, 461 A.2d 604 (1983) cert. denied 465 U.S. 1104, 104 S.Ct. 1603, 80 L.Ed.2d 133 (1984).

Id., 515 Pa. at 158-59, 527 A.2d at 975.

In the present case, we need not reach the issue of whether appellant was prejudiced by trial counsel’s actions, as we find that appellant has failed to prove that trial counsel’s performance was unreasonable.

Appellant’s first ineffective assistance of counsel claim is based on trial counsel’s failure to call an allegedly exculpatory witness to testify at trial. Appellant claims that trail counsel did not call Michael Frazier, who would have testified that while appellant was at the scene of the shooting, he was a mere onlooker and did not actually shoot the victim.

Our Supreme Court, however, has held that the failure to call a witness is not per se ineffective assistance of counsel. Commonwealth v. Smallwood, 497 Pa. 476, 442 A.2d 222 (1982), citing, Commonwealth v. Robinson, 487 Pa. 541, 410 A.2d 744 (1980). The decision whether to call a witness is a matter of trial strategy. Id., 497 Pa. 487, 442 A.2d at 227. “[Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable, and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Strickland, 466 U.S. at 690-691, 104 S.Ct. at 2068, 80 L.Ed.2d at 695. The failure to call a possible witness will not be equated with a conclusion of ineffectiveness, absent some positive demonstration that the testimony would have been helpful to the defense. Commonwealth v. Bulard, 305 Pa.Super. 502, 451 A.2d 760 (1982).

Appellant has labeled Mr. Frazier’s alleged testimony as exculpatory; however, we are unable to discern how placing appellant at the scene of the crime would have benefited his case. This is especially true in light of the fact that appellant, at trial, attempted to discredit the Commonwealth’s witnesses and based his case on failure of the Commonwealth to prove its case beyond a reasonable doubt. Certainly, conceding that he was at the scene of the crime would have been detrimental to this strategy. We view the defense counsel’s decision not to call Mr. Frazier as a tactical choice which appellant may not now successfully label as ineffective assistance of counsel merely because it turned out to be unsuccessful.

Secondly, appellant claims that trial counsel was ineffective for eliciting character testimony because the prosecution was then permitted to introduce appellant’s prior convictions in rebuttal. We find that appellant expressly agreed at trial that defense counsel would pursue this strategy, with full knowledge that his prior convictions would be disclosed by the prosecution. Therefore, we find that appellant has waived any argument with respect to ineffective assistance of counsel on such grounds.

Thirdly, appellant argues ineffective assistance of counsel in that trial counsel did not, post verdict, challenge the sufficiency of the evidence for first-degree murder. In order to evaluate this claim, we must examine the evidence presented by the Commonwealth. To determine the sufficiency of the evidence, we must adhere to the following test:

[Wjhether, viewing the evidence in the light most favorable to the Commonwealth, and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to find every element of the crime beyond a reasonable doubt.

Commonwealth v. Griscavage, 512 Pa. 540, 517 A.2d 1256 (1986) .

“In order to convict a defendant of murder of the first degree, the Commonwealth must prove beyond a reasonable doubt that (1) the defendant has killed another (2) willfully, deliberately and with premeditation (otherwise referred to as with malice), and (3) without lawful justification.” Carbone, supra 524 Pa. at 560, 574 A.2d at 588.

Upon review of the evidence in the present case, we find that the jury was presented with sufficient evidence to have found, beyond a reasonable doubt, that appellant committed murder in the first degree. Specifically, the jury heard testimony from an eyewitness that she observed appellant and his co-assailant fire their weapons, at close range, into the victim’s body. This testimony is itself sufficient to warrant a conviction of first-degree murder. See, Commonwealth v. D’Amato, 514 Pa. 471, 479, 526 A.2d 300, 304 (1987) . Therefore, any claim challenging the sufficiency of the evidence in the present case would have been meritless. Counsel cannot be deemed ineffective for failing to assert a meritless claim. Commonwealth v. Christy, 511 Pa. 490, 515 A.2d 832 (1986).

Appellant’s fourth claim of ineffective assistance of counsel is that trial counsel did not attempt to impeach Ms. Fountain, a Commonwealth witness, with her alleged criminal record. Appellant’s claim is without merit. Appellant, in his brief, does not articulate the exact nature of the criminal record that the witness supposedly has, but only argues that appellant has reason to believe that the witness possessed a criminal record. Additionally, appellant does not allege whether the supposed crimes resulted in convictions and involved dishonesty or false statements. See, Commonwealth v. Williams, 524 Pa. 404, 407, 573 A.2d 536, 538 (1990) ([A] witness may not be impeached on the basis of convictions for crimes not involving dishonesty or false statement.). The failure of appellant to allege specific factual averments with respect to the existence and nature of the alleged criminal record of the Commonwealth witness renders appellant’s claim of ineffective assistance of counsel meritless.

Finally, appellant asserts ineffective assistance of counsel for counsel’s failure to file a motion to reconsider sentence, which appellant argues is excessive because it exceeds the sentencing guidelines. Appellant also argues that his sentences for criminal conspiracy (five to ten years) and possession of an instrument of crime (two and one-half to five years) should have been imposed to run concurrently with the life sentence on the murder bill, and not consecutive thereto.

We first observe that appellant does not directly challenge the length of the sentence, but only raises the issue in the context of an ineffectiveness claim. Appellant has failed to articulate any substantial question which would show that a lesser sentence was appropriate, in accordance with 42 Pa.C.S.A. § 9781. Had appellant directly appealed the sentence without stating a substantial question, our inquiry would end. In light of the fact that appellant challenges trial counsel’s effectiveness for failure to preserve the issue for appeal, however, we may consider whether appellant’s underlying sentencing issue has arguable merit. See, Commonwealth v. Jones, 365 Pa.Super. 57, 528 A.2d 1360 (1987).

This Court has held that the trial judge has broad discretion in imposing sentence____If the sentence imposed is within statutory limits, there is no abuse of discretion, unless the sentence is manifestly excessive so as to inflict too severe a punishment____Absent an abuse of discretion, a sentence imposed by the trial court will not be disturbed on appeal.

Commonwealth v. Martin, 328 Pa.Super. 498, 501, 477 A.2d 555, 557 (1984) (internal citations omitted).

In the present case, appellant was sentenced to five to ten years for criminal conspiracy. The statutory maximum sentence for criminal conspiracy is ten years. 18 Pa.S.C.A. § 905; 18 Pa.S.C.A. § 1103. Appellant was also sentenced to two and one-half to five years’ imprisonment for possession of an instrument of crime. The statutory maximum for this crime is five years. 18 Pa.C.S.A. § 907; 18 Pa.C. S.A. § 1104. Therefore, as the sentence imposed does not exceed that statutory maximum, there can be no abuse of discretion unless the sentence is manifestly excessive so as to inflict severe punishment. Upon our own review of the record, we are satisfied that the trial court did not abuse-its discretion, as it took into account appellant’s prior criminal activity in addition to the pre-sentence report indicating appellant’s deceptive and hostile nature. Accordingly, we do not find the sentence to have been manifestly excessive and cannot find trial counsel to have been ineffective for failing to file a motion to reconsider the sentence, as such motion would most likely have been futile.

For the foregoing reasons, judgment of sentence is affirmed.

      . Appellant does not state how he was prejudiced or that he was eventually denied an impartial jury, as he exercised a peremptory challenge against this prospective juror. On this basis alone, appellant may be denied relief. Ross v. Oklahoma, 487 U.S. 81, 89, 108 S.Ct. 2273, 2278, 101 L.Ed.2d 80, 90 (1988), reh. denied, 487 U.S. 1250, 109 S.Ct. 11, 101 L.Ed.2d 962 (1988) (so long as the jury that sits is impartial, the fact that defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated).

      . The instruction regarding the inference of malice from the use of a deadly weapon was appropriate in the present case because the record shows that appellant and his co-assailant both held guns to the victim and shot him in the abdomen, back and head, causing his death.

      . (N.T. 4-5-89, at pp. 30-34.)


source: Caselaw Access Project

author:
ROWLEY, Judge:
     WIEAND, Judge, KELLY, Judge, BECK, Judge,

license: Public Domain

text:
    585 A.2d 1091
    Gwendolyn JENKINS, Appellant, v. HOSPITAL OF the MEDICAL COLLEGE OF PENNSYLVANIA and Dr. Carol Grabowski and Dr. Dorothy M. Barbo.
    Superior Court of Pennsylvania.
    Argued May 31, 1990.
    Filed Jan. 31, 1991.

      Mark Jurikson, Philadelphia, for appellant.
    Nancy G. Rhoads, Philadelphia, for appellee.
    Before ROWLEY, WIEAND, OLSZEWSKI, MONTEMURO, BECK, KELLY, POPOVICH, JOHNSON and FORD ELLIOTT, JJ.
   ROWLEY, Judge:

On March 8, 1984, appellant Gwendolyn Jenkins gave birth to a male child, Cory, who suffers from Down’s syndrome. Immediately thereafter appellant underwent a tubal ligation, a sterilization procedure. In the present action against the Hospital of the Medical College of Pennsylvania and Doctors Carol Grabowski and Dorothy Barbo, the physicians attending at Cory’s birth, all of whom are appellees herein, appellant asserts that if appropriate diagnostic procedures had been performed during her pregnancy, enabling her to learn that her unborn child was afflicted with Down’s syndrome, she would have terminated the pregnancy and chosen not to undergo the tubal ligation.

Among the damages sought by appellant were the costs of raising a Down’s syndrome child. The paragraphs of the complaint demanding such damages were struck by the trial court on the ground that they amounted to a legislatively prohibited claim for “wrongful birth.” We are required to decide whether the trial court’s order striking only a portion of appellant’s complaint is final and appealable and, if so, whether the legislature’s retroactive prohibition of actions for “wrongful birth” is unconstitutional.

Appellant’s complaint, which was filed on October 29, 1986, is inartfully drafted. In Count I appellant makes eighteen allegations of negligence against Doctors Grabowski and Barbo. These allegations may be condensed into two fundamental claims: 1) because the attending physicians failed to perform a timely amniocentesis test, which would have revealed the presence of Down’s syndrome, appellant was deprived of the opportunity to terminate her pregnancy and avoid the sterilization procedure; and 2) the physicians performed the sterilization without appellant’s informed consent, having failed to inform her that the child who had just been born to her suffered from Down’s syndrome. In Count I appellant alleged the following losses:

28. As a direct result of the injuries aforementioned and caused solely thereby, Plaintiff has suffered great physical and mental and emotional pain and will continue to suffer such pain and anquish [sic] for an indefinite time into the future, all to her great detriment and loss.
29. As a direct result of the aforementioned injuries, Plaintiff has suffered a complete sterilization, which has left her unable to bear any further child, all to her great detriment and loss.
30. As a further result of the aforesaid, Plaintiff has been unable in the past, and may be unable in the future, to attend to her usual duties, occupations and avocations and has suffered a loss of earnings and future earning capacity, all to her great detriment and loss, financial and otherwise.
31. As a direct result of Defendants failing to perform the aforementioned diagnostic testing which resulted in Plaintiff delivering a child suffering from Down’s Syndrome, which is a permanent medical condition, Plaintiff has suffered severe ecomonic [sic] loss and will continue to suffer tremendous economic costs in the raising of said child and in affording said child the appropriate medical treatment and care, as well as appropriate and necessary educational and other social services necessary for the child to have a life which is as normal as is possible under the circumstances.
32. As a direct result of the failure of Defendants to afford the appropriate diagnostic amniocentesis testing and availing Plaintiff of the opportunity to abort said pregnancy, Plaintiff has been unable to resume her prior employment opportunities and has suffered significant financial loss, all to her great detriment and loss, and will continue to do so for an indefinite time into the future in order to afford the appropriate treatment and care of Plaintiffs child, Cory Jenkins, who requires constant care and attention of Plaintiff, Gwendolyn Jenkins, and will need said care for an indefinite time into the future.
33. As a further result of the aforesaid, Plaintiff has been required and will be required in the future to expend and become liable for substantial sums of money for medicines, and medical treatment and care for herself and in particular, Plaintiff has incurred and is liable for the costs of the aforesaid sterilization procedures and hospitalization costs attending to the delivery of her child, Cory Jenkins, all of which would have been avoided if Plaintiff was timely made aware of the genetic abnormality of her child in time to abort said pregnancy.

Appellant concluded Count I with a claim for damages in excess of $20,000.00.

In Count II appellant incorporated the averments of Count I and contended that the hospital and the physicians had breached their contractual obligations by performing the sterilization procedure without her informed consent, thereby causing her “extensive monetary harm, including the cost of said sterilization procedures and possible future costs of medical treatment and care which may be incurred in the future to reverse said sterilization.” Appellant again demanded damages in excess of $20,000.00. Appellees, in preliminary objections, moved to strike Count II on the ground that it duplicated Count I and was therefore redundant. In an order entered January 21, 1987, the trial court sustained appellees’ objection and struck Count II, noting that it had no basis in law. Appellant has not appealed the order dismissing Count II.

Count III incorporated the previous averments and stated ten allegations of negligence against the hospital, including failure to monitor the acts of its physicians, failure to afford prenatal testing to appellant, and failure to set appropriate guidelines for the performance of sterilization procedures. Appellant sought damages in excess of $20,-000.00, specifying the following losses:

40. As a direct result of the injuries aforementioned and caused solely thereby, Plaintiff has suffered great physical and mental and emotional pain, and will continue to suffer such pain and anquish [sic] for an indefinite time into the future, all to her great detriment and loss.
41. As a direct result of the aforementioned injuries, Plaintiff has suffered a complete sterilization, which has left her unable to bear any further children all to her great detriment and loss.
42. As a further result of the aforesaid, Plaintiff has been unable in the past, and may be unable in the future, to attend to her usual duties, occupations and avocations and has suffered a loss of earnings and future earning capacity, all to her great detriment and loss, financial and otherwise.
43. As a further result of the aforesaid, Plaintiff has been required in the past and will be required in the future to expend and become liable for substantial sums of money for medicines and medical attention both for herself and for her child, Cory Jenkins, in and about endeavoring to secure treatment for her injuries and illnesses to her son, Cory Jenkins, all to her great detriment and loss, financial and otherwise.
44. As a direct result of Defendants failing to perform the aforementioned diagnostic testing which resulted in Plaintiff delivering a child suffering from down’s [sic] Syndrome, which is a permanent medical condition, Plaintiff has suffered severe economic loss and will continue to suffer tremendous economic costs in the raising of said child and in affording said child the appropriate medical treatment and care, as well as appropriate and necessary educational and other social services necessary for the child to have a life which is an [sic] normal as is possible under the circumstances.
45. As a direct result of the failure of Defendants to afford the appropriate diagnostic amniocentesis testing and availing Plaintiff of the opportunity to abort said pregnancy, Plaintiff has been unable to resume her prior employment opportunities and has suffered significant financial loss, all to her great detriment and loss and will continue to do so for an indefinite time into the future in order to afford the appropriate treatment and care of Plaintiffs child, Cory Jenkins, who requires constant care and attention of Plaintiff, Gwendolyn Jenkins and will need said care for an indefinite time into the future.

After the pleadings were closed, appellees moved for judgment on the pleadings with respect to paragraphs 31-33 and 43-45 of appellant’s complaint. In an order entered December 6, 1988, the trial court granted appellees’ motion and struck the specified paragraphs. In its opinion the trial court explained that the stricken paragraphs stated a claim for the wrongful birth of appellant’s child. Such a claim, the trial court held, was barred by 42 Pa.C.S. § 8305, which reads in pertinent part as follows:

(a) Wrongful birth.—There shall be no cause of action or award of damages on behalf of any person based on a claim that, but for an act or omission of the defendant, a person once conceived would not or should not have been born.

Act of April 13, 1988, P.L. 336, No. 47, § 2, imd. effective. As the trial court noted, § 8 of the Act provided, with exceptions not relevant here, that the section just quoted should be given retroactive effect, including application to any case pending or on appeal.

In this timely appeal of the trial court’s order of December 6, 1988, appellant contends that 1) the retroactive application of 42 Pa.C.S. § 8305 violates the due process and equal protection guarantees of the state and federal constitutions; 2) 42 Pa.C.S. § 8305 violates the separation of powers doctrine; and 3) the prohibition of wrongful birth actions embodied in 42 Pa.C.S. § 8305(a) violates the right of injured plaintiffs to due process, equal protection, and privacy as guaranteed by the state and federal constitutions. Before addressing these issues, however, we are required to determine, as in every case, whether the appeal before us has been taken from a final order.

I. APPEALABILITY

It is settled law that an appeal will lie only from a final order unless otherwise permitted by statute or rule. Fried v. Fried, 509 Pa. 89, 93, 501 A.2d 211, 213 (1985). In the present case, the trial court granted judgment on the pleadings as to six paragraphs of a three-count, forty-five-paragraph complaint. Although an order dismissing less than all counts of a multi-count complaint is generally not appealable, Praisner v. Stocker, 313 Pa.Super. 332, 337, 459 A.2d 1255, 1258 (1983) (en banc), such an order will be considered final and appealable if the dismissed count or counts are not merely alternate theories for recovery but instead state separate and distinct causes of action, id., 313 Pa.Superior Ct. at 341-42, 459 A.2d at 1260.

In determining whether an order is final, we are required to consider the order’s practical ramifications. Pennsylvania Turnpike Commission v. Atlantic Richfield Company, 482 Pa. 615, 618, 394 A.2d 491, 493 (1978) [quoting Bell v. Beneficial Consumer Co., 465 Pa. 225, 228, 348 A.2d 734, 735 (1975)]. As this Court en banc recently observed in Motheral v. Burkhart, 400 Pa.Super. 408, 583 A.2d 1180 (1990), “[i]n making this determination, we are guided by the Supreme Court’s statement that ‘[a] pivotal consideration ... is whether the plaintiff aggrieved by [the order] has, for purposes of the particular action, been put “out of court” on all theories of recovery asserted against a given defendant for a given loss.’ ” Id., 400 Pa.Superior Ct. at-, 583 A.2d at 1184 [quoting Sweener v. First Baptist Church of Emporium, 516 Pa. 534, 539, 533 A.2d 998, 1000 (1987) ]. In other words, we look to see whether the claims that have been dismissed and those that remain “request different relief for different harms____” Daywalt v. Montgomery Hospital, 393 Pa.Super. 118, 122, 573 A.2d 1116, 1118 (1990), quoted in Motheral v. Burkhart, 400 Pa.Super. at-, 583 A.2d at 1185. In many cases an analysis of the relief requested will lead to resolution of the finality question; other cases will require the consideration of additional factors. Garofolo v. Shah, 400 Pa.Super. -, 583 A.2d 1205, 1207 (1990) (en banc); Motheral v. Burkhart, 400 Pa.Super. at-, 583 A.2d at 1185-86; Trackers Raceway, Inc. v. Comstock Agency, Inc., — Pa.Super.-, 583 A.2d 1193, 1200 (1990) (en banc).

Turning to the facts of the present case, we note that in paragraphs 31-33 and 43-45, which were stricken by the trial court, appellant alleged that she had suffered the following losses:

31, 44: the “tremendous economic costs” of raising a Down’s syndrome child, including medical and educational expenses;
32, 45: loss of earnings as a result of being required to give full-time care to the child;
33: appellant’s own medical expenses, in particular the costs of the delivery and sterilization;
43: the medical expenses of appellant and her child.

As noted earlier, appellant’s complaint is inartfully drafted. The three counts lack headings summarizing the causes of action stated therein, and the language of the three counts is both repetitious and less than explicit as to the nature of the claims being stated. In addition, appellant claims loss of earnings not only in paragraphs 32 and 45, which were stricken, but also in paragraphs 30 and 42, which remain.

Nevertheless, appellant’s claim of injury in the form of the “tremendous economic costs” of raising her child, which is stated in dismissed paragraphs 31 and 44, appears nowhere else in the complaint. In addition, despite the confusing arrangement of the complaint, it was apparent to the parties and to the trial court that paragraphs 31-33 and 43-45 stated claims for damages allegedly resulting from the “wrongful birth” of appellant’s Down’s syndrome child. As noted by the trial court in its opinion, “Defendants then motioned this Court for Judgment on the Pleadings maintaining that 43 P.S. [sic] § 8305(a) precluded the Plaintiff’s wrongful birth claims set forth in paragraphs 31-33 and 43-45 of the Complaint” (Trial Court Opinion at 2; emphasis added). The trial court held that “[application of § 8305(a) to the instant case precludes Plaintiff’s cause of action based on the wrongful birth of her child ” (Trial Court Opinion at 3; emphasis added). The parties’ dispute over the applicability of 42 Pa.C.S. § 8305(a) indicates that both understood appellant to have stated in paragraphs 31-33 and 43-45 “a claim that, but for an act or omission of the defendant, a person once conceived would not or should not have been born.”

Appellant argues on appeal that her complaint, however inartfully drafted, states two separate and distinct causes of action:

CAUSE OF ACTION I:
An action alleging professional negligence (medical malpractice) stemming from Appellees [sic] negligence in failing to administer an amniocentesis procedure to Appellant Jenkins (even after she had specifically requested this test) in sufficient time to permit a therapeutic termination of this pregnancy. This type of claim has come to be known as a claim for “Wrongful Birth”.
CAUSE OF ACTION II:
A cause of action alleging professional negligence (medical malpractice) stemming from Appellees [sic] failure to obtain the informed consent of Appellant prior to performing a sterilization operation on her, immediately after her Caesarian Section delivery of a child with Down’s Syndrome. This cause of action is commonly known as a cause of action based upon “Lack of Informed Consent”.

Supplemental Brief for Appellant at 8-9. We agree. Appellant has not merely requested several types of relief for a single alleged harm. Instead, she has alleged two different harms—1) the birth of a Down’s syndrome child, and 2) the sterilization performed without her informed consent— and has requested different relief for those different harms. Appellant has alleged not one loss, but two. While these causes of action could have been stated more clearly, they have been stated clearly enough.

Appellees, citing Hull v. Tolentino, 517 Pa. 328, 536 A.2d 797 (1988), urge us to view the trial court’s order as interlocutory because it involved only a question of law, the resolution of which can be deferred until an appeal from a final judgment without causing irreparable harm to appellant. In Hull v. Tolentino the Supreme Court affirmed this Court’s dismissal of an appeal from an order of the trial court precluding a party from asserting an affirmative defense, explaining that

[i]f an affirmative defense turns on disputed facts and the trial court errs in precluding the assertion of that defense, the case must be retried if appellate review and a reversal occur after the entry of final judgment. Appellate consideration before trial in this circumstance would obviate the possible expense and burden of two trials. On the other hand, where an affirmative defense involves a question of law, the appellate court can simply apply the law to the outcome of the litigation should it find that the trial court abused its discretion in precluding the assertion of that defense.

Id., 517 Pa. at 331, 536 A.2d at 798-99 (emphasis in the original). In the present case, however, we cannot agree that appellant will not face the burden of a second trial if consideration of the issue raised in this appeal is postponed until a final judgment is reached on her remaining cause of action. If, at that point, appellant’s constitutional challenges to 42 Pa.C.S. § 8305 are resolved in her favor, she will be faced with the necessity of proving those facts which are essential to her wrongful birth claim but which were not germane to her claim based on lack of informed consent.

We hold, therefore, that the trial court’s order of December 6, 1988, which dismissed paragraphs 31-33 and 43-45, was a final order, as the dismissed paragraphs stated a separate and distinct cause of action for wrongful birth. Accordingly, we turn to the merits of appellant’s appeal from the trial court’s order.

II. CONSTITUTIONALITY

The constitutional issues raised by appellant have not heretofore been addressed by the appellate courts of this Commonwealth. Although constitutional challenges to the substantive provisions and retroactive application of 42 Pa. C.S. § 8305 were presented to this Court by amici curiae in Butler v. Rolling Hill Hospital, 382 Pa.Super. 330, 555 A.2d 205 (1989), alloc. denied, 522 Pa. 623, 564 A.2d 915 (1989), it was held that amici’s failure to notify the Attorney General of the challenge to the constitutionality of the statute as required by Pa.R.A.P. 521 resulted in the waiver of the constitutional issues. In the present case appellant has given the required notice to the Attorney General, who has filed a brief as amicus curiae. In addition, the holding of the Court of Common Pleas of Dauphin County in Silcox v. Bower, 109 Dauph. 203, 2 Pa.D. & C. 4th 248 (1989), that retroactive application of 42 Pa.C.S. § 8305 is unconstitutional, although worthy of our consideration, is not binding upon this Court.

It is a well-settled principle that our courts should not decide a constitutional question unless absolutely required to do so. Krenzelak v. Krenzelak, 503 Pa. 373, 381, 469 A.2d 987, 991 (1983); Mount Lebanon v. County Board of Elections, 470 Pa. 317, 322, 368 A.2d 648, 650 (1977). We cannot avoid doing so in the present case, as the appeal before us consists entirely of a challenge to the constitutionality of the substance and retroactive application of 42 Pa.C.S. § 8305. We can, however, limit the scope of our inquiry in two respects. First, although appellant refers throughout her brief to 42 Pa.C.S. § 8305, it is only the constitutionality of subsection (a) of § 8305 that concerns us. Second, we will initially consider only appellant’s challenge to the retroactive application of this subsection. If we determine that the retroactive application of § 8305(a) is unconstitutional, consideration of the statute’s substance becomes unnecessary.

As noted earlier, § 8 of the Act of April 13, 1988 provides that the Act shall be given retroactive effect. In attempting to demonstrate that the retroactive application of § 8305(a) is unconstitutional, appellant carries a heavy burden of persuasion. Consumer Party of Pennsylvania v. Commonwealth, 510 Pa. 158, 175, 507 A.2d 323, 331 (1986) [quoting Pennsylvania Liquor Control Board v. The Spa Athletic Club, 506 Pa. 364, 370, 485 A.2d 732, 735 (1984) ]. A legislative enactment enjoys a strong presumption in favor of constitutionality and will not be invalidated unless it clearly, palpably, and plainly violates the Constitution. Id.; Parker v. Children’s Hospital of Pennsylvania, 483 Pa. 106, 116, 394 A.2d 932, 937 (1978). In determining the legislature’s intent in writing the statute at issue, we presume that the legislature did not intend to violate the state or federal Constitution. 1 Pa.C.S. § 1922(3); Krenzelak v. Krenzelak, 503 Pa. at 381, 469 A.2d at 991. All doubts must be resolved in favor of a finding of constitutionality. Consumer Party v. Commonwealth, 510 Pa. at 175, 507 A.2d at 332; Parker v. Children’s Hospital, 483 Pa. at 116, 394 A.2d at 937.

As our Supreme Court held in Barasch v. Pennsylvania Public Utility Commission, 516 Pa. 142, 532 A.2d 325 (1987) , aff'd, 488 U.S. 299, 109 S.Ct. 609, 102 L.Ed.2d 646 (1989), “Neither the federal constitution nor our state constitution invalidates a non-penal statute merely because it is retroactive, unless such legislation impairs contractual or other vested rights.” Id. 516 Pa. at 167, 532 A.2d at 337 (emphasis added). Appellant, relying principally on Gibson v. Commonwealth, 490 Pa. 156, 415 A.2d 80 (1980), contends that the retroactive application of 42 Pa.C.S. § 8305(a) impaired—in fact, extinguished—her vested right to bring an action for wrongful birth against appellees. Because that right of action, first recognized in Speck v. Finegold, 497 Pa. 77, 439 A.2d 110 (1981), was judicially rather than legislatively created, she argues, its abrogation by the legislature violates the separation of powers doctrine.

The events leading to the Supreme Court’s decision in Gibson v. Commonwealth began with the Court’s abrogation of sovereign immunity on July 14, 1978, in Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 388 A.2d 709 (1978). Shortly thereafter the legislature, in the Act of September 28, 1978, P.L. 788, §§ 1 et seq. (“Act 152”), established sovereign immunity by statute. Section 5 of the Act expressed the legislature’s intention to apply the Act to claims that had arisen before its promulgation. The five consolidated appeals before the Court involved claims against the Commonwealth and the Department of Environmental Resources for negligent supervision of a dam that had flooded, causing loss of life, limb, and property, on July 20, 1977. The Commonwealth Court granted appellees’ motion to dismiss on the basis of Act 152. Appellants, acknowledging that their remedy for the alleged negligence of appellees would be completely extinguished if Act 152 were applied to their actions, contended that such retroactive application would violate Article I, § 11 of the Pennsylvania Constitution and the Fourteenth Amendment of the United States Constitution, as their rights of action had accrued prior to the promulgation of the Act.

The Supreme Court agreed, describing as well settled the principle that “the Legislature may not extinguish a right of action which has already accrued to a claimant.” Id. 490 Pa. at 161, 415 A.2d at 83.

This Court has consistently held that the Legislature’s repeal of a law which created a right of action does not disturb any actions accrued thereunder: “There is a vested right in an accrued cause of action____ A law can be repealed by the law giver; but the rights which have been acquired under it, while it was in force, do not thereby cease. It would be an absolute injustice to abolish with the law all the effects it had produced. This is a principle of general jurisprudence; but a right to be within its protection must be a vested right.” Lewis v. Pennsylvania R.R. Co., 220 Pa. 317, 324, 69 A. 821, 823 (1908) (quotations omitted)____

Id. (additional citations omitted). If the legislature could not disturb actions that had accrued under its own authority, then, the Supreme Court observed, the separation of powers doctrine suggested a fortiori that the legislature could not disturb actions that had accrued under the authority of the judiciary. “In the very nature of things, a law that is enacted after the case has arisen can be no part of the case.” Id. [quoting Menges v. Dentler, 33 Pa. 495, 498-99 (1859) ]. Although appellants’ cause of action arose prior to the Supreme Court’s abolition of sovereign immunity in Mayle, the Court held that Mayle should be applied retrospectively. Appellants’ claims, therefore, had accrued before Act 152 was promulgated and could not be extinguished by the Act. Id. 490 Pa. at 163, 415 A.2d at 84.

The holding of Gibson was relied upon in subsequent cases to bar the retroactive application of Act 152, Kapil v. Association of Pennsylvania State College and University Faculties, 504 Pa. 92, 470 A.2d 482 (1983); Pechner, Dorfman, Wolffe, Rounick and Cabot v. Pennsylvania Insurance Department, 499 Pa. 139, 452 A.2d 230 (1982); Brungard v. Mansfield State College, 491 Pa. 114, 419 A.2d 1171 (1980); Bershefsky v. Com., Department of Public Welfare, 491 Pa. 102, 418 A.2d 1331 (1980), and of other legislation, Dale National Bank v. Commonwealth, 502 Pa. 170, 465 A.2d 965 (1983).

Applying the general rule, stated in Gibson, that a tort cause of action accrues on the date of the accident or injury, id. 490 Pa. at 162, 415 A.2d at 83, it is apparent that appellant’s cause of action accrued on March 8, 1984, the date on which the allegedly wrongful birth of her son occurred. 42 Pa.C.S. § 8305(a) was not promulgated and made effective until April 13, 1988, more than four years later. Therefore, appellant argues, under Gibson § 8305(a) cannot serve to bar her cause of action for wrongful birth.

Appellees raise several objections to appellant’s argument. They contend, first, that Gibson is inapplicable to the present case because § 8305(a) eliminates only one of appellant’s possible causes of action against them, whereas Act 152 eliminated any possibility of recovery against the Commonwealth. While this is indeed a distinction between the two cases, it is not a legally meaningful distinction. The Supreme Court’s holding in Gibson was based on the “well-settled” principle “that the Legislature may not extinguish a right of action which has already accrued to a claimant.” Id., 490 Pa. at 161, 415 A.2d at 83 (emphasis added). Quoting Chief Justice Marshall in Marbury v. Madison, 5 U.S. (1 Cranch) 87, 102, 2 L.Ed. 60 (1803), the Court observed that “[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.” Id. 490 Pa. at 162, 415 A.2d at 83 (emphasis added). As noted in Part I of this Opinion, appellant has alleged two different harms and has requested different relief for those different harms. If appellant had stated only one cause of action against appellees, that for wrongful birth, appellees’ attempt to distinguish Gibson would clearly be without merit. The applicability of Gibson is not changed by the fact that appellant has stated an additional, separate cause of action against the same defendants.

Appellees, citing the separation of powers doctrine, also note that it is within the legislature’s power “to completely extinguish a cause of action____” Parker v. Children’s Hospital of Pennsylvania, 483 Pa. 106, 127, 394 A.2d 932, 943 (1978). As to the legislature’s power to do so prospectively, there is no dispute. The legislative power to abolish a cause of action retrospectively, however, is subject to the limitations set forth in Gibson.

Finally, appellees cite several cases that, in their view, uphold the retroactive application of legislative enactments. They point out that in Sutliff v. Sutliff, 518 Pa. 378, 543 A.2d 534 (1988), the Supreme Court held that the equitable distribution provisions of the 1980 Divorce Code could constitutionally be applied to property rights that had vested prior to July 1, 1980, the effective date of the Code. In fact, the Court noted in Sutliff that such a holding had previously been announced in Bacchetta v. Bacchetta, 498 Pa. 227, 445 A.2d 1194 (1982), and Krenzelak v. Krenzelak, 503 Pa. 373, 469 A.2d 987 (1983). As the Court explained in Krenzelak, its holding was based upon the state’s authority, pursuant to its police power, to regulate the marital relationship: “Only if a person becomes party to a proceeding for divorce, and so more directly subject to the police power of the state, does [the equitable distribution] statute even have potential relevance____” Id., 503 Pa. at 384, 469 A.2d at 992 [quoting with approval Rothman v. Rothman, 65 N.J. 219, 229-30, 320 A.2d 496, 502 (1974)]. The Supreme Court’s holding in Bacchetta, Krenzelak, and Sutliff, limited as it is by the state’s power to regulate the marital relationship, does not support appellees’ contention in the case at bar.

The Supreme Court’s opinion in Singer v. Sheppard, 464 Pa. 387, 346 A.2d 897 (1975) (plurality), cited by appellees as additional support for the retroactive application of § 8305(a), is also inapplicable here. In Singer v. Sheppard the Court sustained the constitutionality of § 301(a) of the Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 P.S. §§ 1009.301(a), since repealed, against challenges that it 1) violated Article III, Section 18, of the Pennsylvania Constitution because it limited the damages recoverable by persons injured in motor vehicle accidents, 2) violated Article I, Section 11, of the Pennsylvania Constitution because it denied certain accident victims recourse to the courts, and 3) violated the equal protection clause of the Fourteenth Amendment to the United States Constitution by establishing unreasonable classifications among motor vehicle accident victims. Although the Court referred to the legislature’s power to abolish a cause of action, id., 464 Pa. at 397, 346 A.2d at 902, and observed that “[a] person has no property, no vested interest, in any rule of common law,” id., 464 Pa. at 399, 346 A.2d at 903 [quoting Munn v. Illinois, 94 U.S. 113, 4 Otto 113, 24 L.Ed. 77 (1876) ], the opinion does not address the retroactivity question that is now before us.

Finally, appellees point to Clark v. Jeter, 486 U.S. 456, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988), as a case in which the United States Supreme Court “upheld the constitutionality of a Pennsylvania statute of limitations for paternity actions which operated retroactively” (Brief for Appellees at 18-19). This is a misinterpretation of Clark v. Jeter, in which the Supreme Court held that Pennsylvania’s six-year statute of limitations for actions to establish paternity (since changed to eighteen years) violated the equal protection clause of the Fourteenth Amendment. In addition, appellant’s claim that the statute was invalid because it conflicted with the federal Child Support Enforcement Amendments of 1984, which, according to appellant, required states to adopt retroactive eighteen-year statutes of limitations in paternity cases, was not reached by the Court, appellant having failed to present adequately a federal pre-emption argument to the courts of this Commonwealth. Clark v. Jeter, in short, bears no relevance to appellant’s claims before this Court.

The Commonwealth, appearing as amicus to defend the constitutionality of the challenged statute, concedes that under Gibson “the legislature may not extinguish a cause of action which has already accrued under the authority of the judiciary” (Brief for Amicus Curiae at 12). The Commonwealth contends, however, that given the uncertain state of our case law relating to “wrongful birth,” no such cause of action had accrued to appellant. In Speck v. Finegold, supra, the Commonwealth points out, an action had been brought against physicians whose allegedly negligent performance of a sterilization procedure and an abortion caused the “wrongful” birth. In the present case, appellant argues that appellees’ allegedly negligent failure to perform an amniocentesis deprived her of the opportunity to prevent the birth of a severely handicapped child. The Commonwealth maintains that because appellant “would have had to argue for the expansion of liability under prior law” (Brief for Amicus Curiae at 12), the retroactive application of 42 Pa.C.S. § 8305(a) is constitutionally permissible.

It is undisputed that the facts of appellant’s case are not identical to those of Speck v. Finegold. In the latter case, appellants were a husband and wife whose two children had inherited the genetic disease neurofibromatosis. Appellants decided not to have more children, and Mr. Speck underwent a vasectomy. Mrs. Speck nevertheless became pregnant with a third child. She underwent an abortion, which was not successful, and eventually gave birth to a daughter, who suffers from neurofibromatosis. The Specks brought a negligence action against the physicians who had performed the vasectomy and the abortion, seeking to recover, inter alia, the expenses attributable to the birth and raising of their daughter.

Although there are factual differences between Speck v. Finegold and the present case, the language of the Supreme Court in the former case argues against a narrow interpretation of the Court’s holding. The Court began its analysis as follows:

As to the tort action brought by the parents, we view the action for injuries suffered as a result of negligently performed vasectomy and abortion procedures as merely requiring the extension of existing principles of tort law to new facts: damages alleged to result from the birth of an unplanned, unwanted, genetically defective child. It is fundamental that one may seek redress for every substantial wrong, and that a wrongdoer is responsible for the natural and probable consequences of his misconduct. Since we believe that the parent-plaintiffs have suffered a substantial wrong, an action should be permitted in which the usual common-law principles of damages should be applied. Further, since the alleged injury (mental distress at having to be the parent of a defective, diseased child) was foreseeable, mental distress damages should be recoverable also.

Id. 497 Pa. at 83-84, 439 A.2d at 113-14 (citations and footnote omitted; emphasis added). In Speck v. Finegold the appellants alleged that as a result of negligently performed sterilization and abortion procedures, they suffered a compensable injury, i.e., the birth of a child who suffers from an incurable genetic disease. In the present case appellant alleges that as a result of the negligent failure to perform a procedure that would have informed her of the child’s condition, she has suffered essentially the same compensable injury. The Supreme Court’s emphasis in Speck v. Finegold on the basic principles of tort recovery suggests that in fact a cause of action accrued to appellant prior to the promulgation of § 8305(a).

In Mason v. Western Pennsylvania Hospital, 499 Pa. 484, 453 A.2d 974 (1982), the Supreme Court declined to extend the holding of Speck v. Finegold to a situation in which an allegedly negligent sterilization led to the birth of a non-handicapped child. The Court held that the financial and emotional costs of raising a normal, healthy child were not compensable. Id., 499 Pa. at 487, 453 A.2d at 976.

The Supreme Court’s most recent comments on the wrongful birth issue appear in Ellis v. Sherman, 512 Pa. 14, 515 A.2d 1327 (1986). This case, like Speck v. Finegold, involved a child who suffered from neurofibromatosis. The child’s parents brought suit on his behalf and on their own against the physicians who had treated the child’s father for a skin condition caused by a relatively mild form of the hereditary disease and against the physicians who had treated and advised them regarding the child’s conception and birth. They averred “that if they had known of their risk of bearing a diseased child, they would have aborted the fetus.” Id., 512 Pa. at 17, 515 A.2d at 1328. In response to preliminary objections in the nature of demurrers filed by the defendants, the trial court upheld the parents’ own cause of action for medical malpractice but dismissed the medical malpractice action brought on the child’s behalf. The dismissal of the child’s cause of action was appealed, and the Superior Court affirmed.

The matter to be decided, as stated by the Supreme Court, was as follows:

The issue in this case is whether a child born with a hereditary disease may recover, in his own right, against medical doctors who treated his parents prior to his birth and who failed to inform the parents that the child might be born with a hereditary disease transmitted by the father. The essence of the child’s claim is that he was injured by being born, that nonexistence is preferable to a diseased life of suffering.

Id., 512 Pa. at 16, 515 A.2d at 1327. The Court’s view was that the child-plaintiff had not established that he was injured. Accordingly, the Court held that “a child born deformed and diseased as the result of the failure of physicians to inform its parents of the possibility of a diseased birth may not recover in its own right for being born diseased.” Id., 512 Pa. at 20, 515 A.2d at 1329-30.

The Court then added the following comment, which is pertinent to the present case:

The parents’ right of recovery is not at issue in this case, and if they are able to establish their claim, they will recover not only for their own mental anguish but also for expenses related to the birth and care of their child. We need not be concerned, therefore, that this is a case in which the family of this child will be left without means to support and care for the child.

Id., 512 Pa. at 20, 515 A.2d at 1330 (footnote omitted). Although the validity of the parents’ own cause of action was not an issue before the Court, the ability of the parents to care for their child was obviously a matter of concern to the Court. The Court addressed this concern by noting that the parents had an ongoing cause of action for wrongful birth which, if successful, would enable them to recover for the costs of raising the child. The Court’s acknowledgment of the parents’ cause of action is additional evidence that the type of claims made by appellant herein constituted a recognized cause of action prior to the passage of § 8305(a).

Finally, we note that this Court, in considering the purpose of the statute at issue, has observed that

the legislature primarily was concerned with eliminating suits brought by children or their parents in an effort to recover damages for the failure to abort a child or negligently aborting a child. The legislature’s expressed overriding concern was to prevent law suits leading to eugenic abortions of deformed or unwanted children.

Hatter v. Landsberg, 386 Pa.Super. 438, 445, 563 A.2d 146, 150 (1989), alloc. denied, 525 Pa. 626, 578 A.2d 414 (1990). As a sponsor of the legislation explained, its objective was

to stop a court-engendered policy which views the birth of a child, be that child handicapped or otherwise, [as] a damaging event for which someone should be punished ... and to prevent the practice of medicine, especially obstetrics and gynecology, from becoming coerced into accepting eugenic abortion as a condition for avoiding what are particularly wrongful birth lawsuits____

Id. at 443, 563 A.2d at 149 [quoting Pa. Senate Leg. 1961 (March 22,1988) ]. This language suggests that the type of action brought by appellant is precisely the type of action that was opposed by the legislative supporters of § 8305(a). In fact, this point is conceded by appellees. It would be unreasonable, therefore, to conclude that appellant’s cause of action had not accrued prior to the passage of § 8305(a) simply because a cause of action based on the exact facts of her case had not been “expressly authorized by the judiciary” (Brief for Amicus Curiae at 12; emphasis added).

In sum, appellant’s cause of action accrued on March 8, 1984, more than four years before the promulgation and effective date of 42 Pa.C.S. § 8305(a); her cause of action was a recognized one under the case law of this Commonwealth; and 42 Pa.C.S. § 8305(a), if applied to her case, would bar her from proceeding with her cause of action. The outcome of this appeal, given our Supreme Court’s opinion in Gibson v. Commonwealth, supra, is therefore clear: Because “[i]t is well-settled that the Legislature may not extinguish a right of action which has already accrued to a claimant,” id. 490 Pa. at 161, 415 A.2d at 83, we are constrained to hold, under Gibson, that 42 Pa.C.S. § 8305(a) may not constitutionally govern appellant’s action. Accordingly, we reverse the trial court’s order of December 6, 1988, insofar as it strikes paragraphs 31-33 and 43-45 of appellant’s complaint, and we remand the case to the trial court for further proceedings consistent with this Opinion.

Order reversed in part; case remanded to the trial court for further proceedings consistent with this Opinion; jurisdiction relinquished.

WIEAND, J., files a concurring statement.

FORD ELLIOTT, J., concurs in the result.

KELLY, J., files a concurring and dissenting opinion.

BECK, J. files a dissenting opinion.

WIEAND, Judge,

concurring statement:

The order of the trial court striking paragraphs from the plaintiff’s complaint had the effect of putting plaintiff “out of court” on her cause of action for damages allegedly resulting from defendants’ professional negligence in failing to administer to plaintiff an amniocentesis procedure in sufficient time to permit a therapeutic termination of her pregnancy. The remaining cause of action seeks to recover damages caused to plaintiff because the defendants allegedly performed a sterilization procedure on her, without her informed consent, following the birth of a child suffering from Down’s Syndrome. These two causes of action are entirely separate and distinct. Therefore, under Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983), the trial court’s order was immediately appealable. For this reason, I concur in the majority’s decision to review the merits of the trial court’s order and join its determination thereof.

KELLY, Judge,

concurring and dissenting:

I agree with the majority’s analysis that the appellant’s complaint contained two separate and distinct causes of action, one alleging wrongful birth of a child born with Down’s syndrome due to her physicians’ failure to perform an amniocentesis in order to alert appellant to the fetus’ mental deficiencies in time for her to terminate the pregnancy, and another alleging negligence against the hospital for failure to monitor and set appropriate guidelines for the performance of sterilization procedures. The trial court struck the portions of the appellant’s complaint alleging a wrongful birth cause of action against the physicians and allowed the negligence action against the hospital to proceed. As the trial court’s action placed the appellant “out of court” as to the wrongful birth cause of action, I agree that the order is a final order and therefore properly before us on appeal. See Trackers Raceway, Inc. v. Comstock Agency, Inc., supra; Valley Forge Towers v. Ron-Ike F. Ins., 393 Pa.Super. 339, 574 A.2d 641 (1990).

However, I disagree with the majority’s finding that 42 Pa.C.S.A. § 8305(a) which both prospectively and retroactively banned a cause of action for wrongful birth is unconstitutional. The majority holds that the retroactive application of the statute extinguished the appellant’s already vested right to bring an action for wrongful birth, and therefore, is violative of Gibson v. Commonwealth, supra, which held that the legislature may not constitutionally eliminate a right of action which has already accrued to a claimant. (Majority Opinion at 1102). I disagree with the majority’s conclusion that the wrongful birth claim as stated by the appellant in her complaint was recognized as a valid cause of action before the passage of 42 Pa.C.S.A. § 8305(a).

The majority bases its holding that the appellant’s claims presented a valid cause of action which existed before the passage of 42 Pa.C.S.A. § 8305(a) on Speck v. Finegold, 268 Pa.Super. 342, 408 A.2d 496 (1979). In Speck, this Court permitted the parents of a child born with neurofibromatosis to maintain a cause of action to recover expenses attributable to the birth and raising of the child against the physicians who allegedly performed a failed vasectomy on the father and an unsuccessful legal abortion on the mother.

On appeal, our Supreme Court affirmed this Court’s holding in Speck v. Finegold, supra, and recognized that under the narrow circumstances of this specific case, where the parents alleged that due to the physicians’ negligence in the performance of both the vasectomy and the abortion, both of which were performed for the express purpose of preventing the conception and birth of a child with neurofibromatosis, the parents could recover for the expenses attributable to the birth and raising of the child. Speck v. Finegold, 497 Pa. 77, 439 A.2d 110 (1981).

However, shortly thereafter, in Mason v. Western Pennsylvania Hospital, 499 Pa. 484, 453 A.2d 974 (1982), the Supreme Court refused to allow the appellant, who was the victim of an allegedly negligent sterilization procedure, to recover for the birth of a healthy child. Thus, the Court limited its holding in Speck v. Finegold, supra, to the narrow set of circumstances found in that case.

The majority also cites Ellis v. Sherman, supra, as basis for its determination that a wrongful birth cause of action existed prior to the passage of 42 Pa.C.S.A. § 8305(a). However, the issue of wrongful birth was not before the Court in that case, rather the issue was whether a child born with neurofibromotosis could recover for wrongful life. Ellis, supra. See also 42 Pa.C.S.A. § 8305(b). The Court found that no such cause of action existed and affirmed the trial court’s dismissal of the wrongful life cause of action. The majority instead emphasizes the Court’s comments about the parents’ claims against their physicians for failing to inform them that the father’s neurofibromatosis condition could be passed on to their children. Id. at 1330. However, these comments were not germane to the wrongful life issue before the Court and thus should not be used as a definitive statement of our Supreme Court’s recognition of the existence of a cause of action for wrongful birth in all circumstances before the passage of 42 Pa.C.S.A. § 8305(a).

The only case relied upon by the majority which makes a definitive finding that wrongful birth existed as a valid cause of action before the passage of 42 Pa.C.S.A. § 8305(a) is Silcox v. Bower, 109 Dauph 203, 2 Pa.D. & C. 4th 248 (1989). In Bower, a common pleas court held, using much the same analysis as the majority instantly, that a cause of action for wrongful birth existed in all circumstances before the passage of the statute. Therefore, the retroactive application of the statute extinguished the plaintiffs right to bring a wrongful birth suit and thus is unconstitutional. Silcox v. Bower, supra 2 Pa.D. & C. 4th at 253 citing Gibson v. Commonwealth.

As recognized by the majority, the decision of a common pleas court is not binding precedent and it is not incumbent upon this Court to follow its decision in such a highly unsettled area of law, especially when it comes to calling an act of the legislature unconstitutional. As such, I differ with both the Bower Court and the majority’s expansive interpretation of Speck v. Finegold, supra. I find that the holding in Speck v. Finegold was intended to be limited to the specifically egregrious allegations contained in the parents’ complaint. Thus, I find that the limited factual holding in Speck cannot and should not be used as a basis for the majority’s blanket finding that a judicially established wrongful birth cause of action existed before the passage of the statute. See Mason v. Western Pennsylvania Hospital, supra.

Moreover, I disagree with the majority’s application of the limited factual holding of Speck v. Finegold, supra, to the instant case. The majority finds that the failed vasectomy and unsuccessful abortion which are alleged to have occurred in Speck are analogous to the appellant's instant allegations that her physicians’ failure to perform an amniocentesis was the legal cause of the birth of a child with Down’s syndrome. I find the instant case clearly distinguishable from the limited holding set forth in Speck, especially in light of the dangers associated with the amniocentesis procedure. See Hickman v. Group Health Plan, Inc., 396 N.W.2d 10 (1986) (the risk of a woman over thirty-five bearing a child with Down’s syndrome is said by medical experts to be one. in three hundred, while the chances of fetal death due to amniocentesis are between one hundred and one in two hundred). Thus, I find the facts set forth in the instant case are not analogous to our Supreme Court’s limited finding of a wrongful birth cause of action in Speck v. Finegold, supra.

Accordingly, as I cannot find any case law which established a blanket cause of action for wrongful birth before the passage of 42 Pa.C.S.A. § 8305(a), I find that based on the facts alleged in her complaint, the appellant did not have a vested right to bring a wrongful birth action which was extinguished by the retroactive application of 42 Pa.C. S.A. § 8305(a). Thus, on the basis of the facts presented instantly, I find the statute to be in compliance with both Barasch v. Pennsylvania Public Utility Commission, supra and Gibson v. Commonwealth, supra, and therefore, constitutional. Hence, I dissent to the portion of the majority opinion finding 42 Pa.C.S.A. § 8305(a) unconstitutional and would affirm the trial court’s dismissal of the appellant’s wrongful birth claim.

BECK, Judge,

dissenting:

The issue presented is whether an order dismissing six out of forty-five paragraphs of appellant’s complaint is a final and immediately appealable order under Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983). I dissent from the majority’s holding that this order is final and would hold that the order appealed from is interlocutory. Since the appeal must be quashed, I would not address the constitutional issue raised by appellant.

Appellant Gwendolyn Jenkins sued the Hospital of the Medical College of Pennsylvania and two doctors practicing at the Hospital, Dr. Grabowski and Dr. Barbo (“appellees”), in a three count complaint. Appellant avers that she received medical care relating to her pregnancy and the delivery of her child at the Hospital, that the medical care was negligently provided and that in treating appellant the Hospital and its doctors acted without appellant’s informed consent. More specifically, appellant contends that appellees should have performed diagnostic testing on appellant and that their failure to do so prevented them from detecting that appellant’s child was afflicted with Down’s Syndrome. Appellant also contends that appellees should not have performed a sterilization procedure on appellant immediately after the birth of the child when they knew that the child they had just delivered had Down’s Syndrome but appellant, who was under anesthesia, was not aware of her child’s condition.

Appellant’s complaint is inartfully drafted. Although it is divided into three counts, the allegations in each count repeat and overlap the allegations in the others. The first count, against the doctors only, contains a laundry list of allegations of negligence, some of which generally allege that the medical care provided to appellant was inadequate and some of which specifically relate to the contentions set forth above. The second count, against the doctors and the Hospital, incorporates the allegations in the prior count but characterizes them as breach of contract. The third count, against the Hospital only, also incorporates all of the allegations of the prior counts. It too contains a laundry list of negligence allegations relating to the generally inadequate medical care of appellant, the failure of the Hospital to train and supervise its doctors, and the failure of the Hospital to assure that appellant would receive proper diagnostic testing and would not suffer a sterilization procedure without her informed consent.

In all counts, appellant sought recovery for the same basic alleged losses. In count I, appellant alleged the following losses:

28. As a direct result of the injuries aforementioned and caused solely thereby, Plaintiff has suffered great physical and mental and emotional pain and will continue to suffer such pain and anguish for an indefinite time into the future, all to her great detriment and loss.
29. As a direct result of the aforementioned injuries, Plaintiff has suffered a complete sterilization, which has left her unable to bear any further child, all to her great detriment and loss.
30. As a further result of the aforesaid, Plaintiff has been unable in the past, and may be unable in the future, to attend to her usual duties, occupations, and avocations and has suffered a loss of earnings and future earning capacity, all to her great detriment and loss, financial and otherwise.
31. As a direct result of Defendants failing to perform the aforementioned diagnostic testing which resulted in Plaintiff delivering a child suffering from Down’s Syndrome, which is a permanent medical condition, Plaintiff has suffered severe economic loss and will continue to suffer tremendous economic costs in the raising of said child and in affording said child the appropriate medical treatment and care, as well as appropriate and necessary educational and other social services necessary for the child to have a life which is as normal as is possible under the circumstances.
32. As a direct result of the failure of Defendants to afford the appropriate diagnostic amniocentesis testing and availing Plaintiff of the opportunity to abort said pregnancy, Plaintiff has been unable to resume her prior employment opportunities and has suffered significant financial loss, all to her great detriment and loss, and will continue to do so for an indefinite time into the future in order to afford the appropriate treatment and care of Plaintiff’s child, Cory Jenkins, who requires constant care and attention of Plaintiff, Gwendolyn Jenkins, and will need said care for an indefinite time into the future.
33. As a further result of the aforesaid, Plaintiff has been required and will be required in the future to expend and become liable for substantial sums of money for medicines, and medical treatment and care for herself and in particular, Plaintiff has incurred and is liable for the costs of the aforesaid sterilization procedures and hospitalization costs attending to the delivery of her child,, Cory Jenkins, all of which would have been avoided if Plaintiff was timely made aware of the genetic abnormality of her child in time to abort said pregnancy.

In Count III almost all of the foregoing allegations are also present. Paragraphs 40-42 of Count III are identical to paragraphs 28-30 in Count I (quoted above). Paragraphs 43-45 of Count III are substantially the same as paragraphs 31-33 (quoted above).

In the order that is the subject of this appeal, the trial court dismissed paragraphs 31-33 of count I and paragraphs 43-45 of count III because in those paragraphs of each count appellant sought damages for what the court characterized as the “wrongful birth” of appellant’s child. The trial court found no right to recover for “wrongful birth” under Pennsylvania law. Since the separate counts of appellant’s complaint are overlapping and redundant, the court obviously concluded that the only manner in which it could dismiss the portion of appellant’s case that sought recovery for wrongful birth was to excise particular paragraphs. Thus, the court ordered that the paragraphs in which appellant sought to recover for the costs and expenses of having and raising her child be stricken.

Appellant argues that this order is final under the appeal-ability doctrine enunciated in Praisner, supra. Appellant argues that in dismissing these six paragraphs of the complaint, the trial court deprived appellant of the right to litigate a separate cause of action and that, under Praisner, an immediate appeal must lie from this dismissal. Appellees argue that since each of the counts at issue are overlapping, neither one clearly stating a separate cause of action but rather both containing the same allegations of wrongdoing and loss, there should be no appeal from the dismissal of certain paragraphs of each of those counts.

I see no need to enter into the difficult inquiry of how Praisner should properly be applied to the facts of this case. I have opined on the viability of Praisner at some length in my dissenting opinion in Trackers Raceway, Inc. v. Comstock, 400 Pa.Super. 432, 583 A.2d 1193 (1990) (en banc), which was argued as a companion to this case because it too presented a question of the appealability of an order dismissing fewer than all of the claims for relief against a particular defendant in a multi-count complaint. In Trackers, I concluded that the test for appealability announced in Praisner, which held that a partial dismissal order was final and appealable if it put the litigant out of court on a separate cause of action, was unworkable and had no firm basis in established finality principles or reason. Thus I concluded that the Praisner doctrine should no longer be applied and that orders dismissing fewer than all claims for relief against a particular defendant in a multicount complaint are interlocutory and not immediately appealable as of right.

Applying this conclusion to this case, the disposition becomes clear. Appellant is still in court as to all three defendants. In fact, appellant retains the right to litigate each and every one of her allegations of wrongdoing as to each defendant. Since the order appealed from did not put appellant out of court as to all claims for relief against any particular defendant, I would hold that the appeal must be quashed.

      This case was reassigned.

      . At the request of this Court, both appellant and appellees filed supplemental briefs addressing the finality issue.

      . Three of six justices joined the opinion announcing the judgment of the Court; three joined a concurring opinion which expressed agreement with the Court’s ruling.

      . Subsections (b) and (c) are as follows:
      (b) Wrongful life.—There shall be no cause of action on behalf of any person based on a claim of that person that, but for an act or omission of the defendant, the person would not have been conceived or, once conceived, would or should have been aborted.
      (c) Conception.—A person shall be deemed to be conceived at the moment of fertilization.

      . Appellant states the issue as ‘‘[w]hether 42 P.S. Section 8305 intrudes upon the Separation of Powers Doctrine and is therefore invalid under the Pennsylvania Constitution" (Brief for Appellant at 3). Her reliance upon Gibson v. Commonwealth indicates, however, that her challenge in this regard is not to the statute in its entirety, but to its retroactive application.

      . Although Act 152 listed eight exceptions to sovereign immunity, the appellants in Gibson conceded that none of the exceptions applied to their case.

      . The dismissal of the daughter's own “wrongful life” action was affirmed.

      . In Silcox v. Bower, 109 Dauph. 203, 2 Pa.D. & C. 4th 248 (1989), the Court of Common Pleas of Dauphin County reached the same conclusion, declining to limit the Speck v. Finegold decision to its facts and holding instead that the Supreme Court’s decision in that case, as well as in Ellis v. Sherman, 512 Pa. 14, 515 A.2d 1327 (1986), “established the right, under appropriate circumstances, of a cause of action for wrongful birth----” Id. at 208, 2 Pa.D. & C. 4th at 255.

      . In a footnote explaining his own change in position from Speck v. Finegold, Justice Flaherty, the writer of the Court’s opinion in Ellis v. Sherman, stated that "l have become increasingly persuaded that the injury in a case of this type is primarily an injury to the parents, for which recovery is permitted____” Id. 512 Pa. at 20-21 n. *, 515 A.2d at 1330 n. *. In Speck v. Finegold Justice Flaherty had expressed the view that the child-plaintiff as well as the parent-plaintiffs should have been allowed to maintain a cause of action alleging negligence. As the Court in Speck v. Finegold was evenly divided on the issue, the Superior Court's order declaring that the child’s cause of action was not legally cognizable was affirmed.

      . This count was dismissed by the trial court as being redundant. Appellant did not appeal the order dismissing count II.

      . I need not reiterate the analysis that led me to the conclusion that Praisner should be overruled. Rather, I incorporate that analysis herein by reference to my dissenting opinion in Trackers.


author: TAMILIA, Judge:

text:
    585 A.2d 1106
    John MACKEN, Appellant, v. LORD CORPORATION.
    Superior Court of Pennsylvania.
    Argued Jan. 8, 1991.
    Filed Feb. 1, 1991.

      Wendell G. Freeland, Pittsburgh, for appellant.
    Diane K. Rembleske, Pittsburgh, for appellee.
    Before TAMILIA, POPOVICH and JOHNSON, JJ.
   TAMILIA, Judge:

John Macken appeals from the March 6, 1990 Order granting appellee Lord Corporation’s motion for compulsory nonsuit. Appellant’s motion to vacate the nonsuit was denied.

On November 27, 1985, the appellant, employed by the appellee as a material handler, was injured on the job when a 550 pound drum fell against his abdomen. Pursuant to a Notice of Compensation Payable, the appellant began receiving total disability benefits on December 3, 1985. On February 25, 1986, the appellant’s treating physician, Dr. Mark Foster, released appellant to return to light duty work, effective immediately. Upon receipt of this authorization, appellee advised appellant to return to work the following day. Appellant informed his employer his continued poor physical condition and a previously scheduled doctor’s appointment would prevent his returning to work as ordered. Despite appellee’s offer to allow appellant time off to keep his doctor’s appointment, appellant failed to return to work as directed and was, accordingly, terminated for insubordination.

Appellant subsequently brought suit against appellee alleging four claims against his former employer in connection with his discharge: (1) wrongful discharge in retaliation for filing a worker’s compensation claim (Count 1); (2) breach of a covenant of good faith and fair dealing for discharging plaintiff without good cause (Count II); (3) intentional infliction of emotional distress (Count III); and (4) negligent infliction of emotional distress (Count IV). On September 21, 1989, appellee moved for summary judgment on the complaint in its entirety. The court granted summary judgment as to Counts II and IV of the complaint, leaving for trial only the counts for wrongful discharge based on retaliation and intentional infliction of emotional distress, the latter of which was withdrawn at trial. Following a nonjury trial, the court found appellant failed to present evidence sufficient to sustain the charge of wrongful discharge and therefore granted a nonsuit.

On appeal Macken argues an entry of nonsuit was improper in that his discharge was in retaliation for his-workers’ compensation claim and the appellee had attempted to alter his disability status without regard for section 408 of the Workmen’s Compensation Act (hereinafter, the Act). 77 P.S. § 732.

When a motion for a compulsory nonsuit is filed, the plaintiff, herein the appellant, must be given the benefit of, all favorable evidence along with reasonable inferences óf fact arising from the evidence, and any conflict of evidence must be resolved in favor of the plaintiff. Toth v. Economy Forms Corporation, 391 Pa.Super. 383, 571 A.2d 420 (1990). However, where a clear cause of action has not been established, a compulsory nonsuit is proper. Storm v. Golden, 371 Pa.Super. 368, 538 A.2d 61 (1988).

Pennsylvania recognizes a cause of action for wrongful discharge in the absence of a statutory remedy and when an important, well-recognized facet of public policy is at stake. Geary v. USS, 456 Pa. 171, 319 A.2d 174 (1974); Darlington v. GE, 350 Pa.Super. 183, 504 A.2d 306 (1986); Phillips v. Babcock & Wilcox, 349 Pa.Super. 351, 503 A.2d 36 (1986), alloc. denied, 514 Pa. 618, 521 A.2d 933 (1987). Although there is no Pennsylvania Supreme Court decision squarely on point, developing Pennsylvania law suggests there can now be a cause of action for discharge in retaliation for filing workers’ compensation claims. See Rabatin v. Columbus Lines Inc., 790 F.2d 22 (3rd Cir.1986). At trial, appellant, who bore the burden of proof and was his sole witness, testified only that it was his belief he was physically unable to return to work when so ordered. The fact that appellant was discharged after filing a claim for compensation does not begin to satisfy appellant’s burden with regard to wrongful discharge. There is no evidence of record from which we could infer appellant’s discharge was retaliatory in nature. To the contrary, appellee’s offer of light duty employment in compliance with the directive of appellant’s treating physician negates any allegation of action by the employer to purposefully injure appellant. The record is replete, however, with repeated, documented warnings relating to the appellant’s chronic absenteeism, which standing alone support appellee’s action in terminating appellant’s employment. We find, giving the appellant the benefit of all reasonable inferences, there is no evidence of retaliatory discharge on the appellee’s behalf.

At argument on the motion for nonsuit, appellant presented a theory not previously pled: that section 408 of the Act (77 P.S. § 732) prohibits the appellee from modifying or terminating the appellant’s employment status while he is receiving benefits, and that his termination was violative of public policy. This contention, which constitutes the crux of appellant’s argument on appeal, is without merit.

Appellant contends section 408 of the Act requires an employer to wait until an employee’s disability status is officially changed by the Bureau of Workers’ Compensation from “total” to “partial” before the employer may order an employee to return to light duty work as approved and ordered by the employee’s treating physician. This misguided averment is the basis for appellant’s primary argument that his discharge for failure to return to work as directed established a prima facie ease of wrongful discharge.

We find section 408 of the Act, set forth below, relates only to the continuation of workers' compensation benefits and does not prohibit a directive to return for light duty work or a discharge of an employee receiving benefits.

§ 732. Modification, suspension, reinstatement or termination of notices and agreements

All notices of compensation payable and agreements for compensation may be modified, suspended, reinstated, or terminated at any time by an agreement or supplemental agreement as the case may be with notice to the department, if the incapacity of an injured employe has increased, decreased, recurred, or temporarily or finally terminated, or if the status of any dependent has changed.

77 P.S. § 732. This section is not germane to the legal analysis determining an employer’s liability for an alleged wrongful discharge. Any attempt to apply the Act to such an analysis elevates an irrelevant procedural provision to the level of a public policy mandate. The purpose of this section is to insure that disability benefits rightfully owed a claimant are not terminated unilaterally. Appellant’s workers’ compensation benefits were not affected by his termination due to insubordination. To the contrary, appellant’s benefits continued for more than three years after his discharge, until such time that appellant and appellee, pursuant to the terms of the Act, agreed to commute appellant’s partial disability benefits in the sum of $45,000. Appellee’s decision to terminate for cause an at-will employee, who also happened to be receiving disability benefits, was a legitimate employer decision not within the scope of any section of the Act.

As mentioned supra, there is no cause of action for wrongful discharge provided there exists a statutory remedy and there is no violation of public policy. As argued by appellee, any party alleging a violation of section 408 of the Act finds his sole remedy in section 413(b) of the Act, 77 P.S. § 774.1. See M.A. Bruder & Son, Inc. v. NCAB, 86 Pa.Cmwlth. 353, 485 A.2d 93 (1984). We agree. As appellee’s decision to discharge appellant for cause was entirely within its discretion, this Court finds further that appellant’s discharge was not violative of any facet of public policy.

We find appellant’s charges of retaliatory discharge and wrongful discharge based on the employer’s alleged violation of section 408 of the Act to be devoid of merit and affirm the grant of a nonsuit by the trial court. Likewise, in accord with the trial court, we find appellant displayed no conduct warranting an award of attorneys’ fees for the appellee.

Order affirmed.