author: MONTEMURO, Judge:

text:
    559 A.2d 530
    Joseph R. DiMARCO, Appellant, v. LYNCH HOMES-CHESTER COUNTY, INC., Lynch Homes, Inc., Leonard C. Guinta, D.O., Lawrence K. Alwine, D.O. and Chester County Medical Associates, Appellees.
    Superior Court of Pennsylvania.
    Argued Jan. 10, 1989.
    Filed April 14, 1989.
    Reargument Denied June 20, 1989.

      Edward T. Feierstein, Philadelphia, for appellant.
    Kean K. McDonald, Philadelphia, for Lynch Homes, appellee.
    James M. Penny, Jr., Philadelphia, for Guinta, appellees.
    Before WIEAND, MONTEMURO and HOFFMAN, JJ.
   MONTEMURO, Judge:

Appellant, Joseph R. DiMarco, appeals from an order of the Court of Common Pleas of Philadelphia County, wherein the court dismissed his complaint following the filing of preliminary objections by appellees, Leonard C. Guinta, D.O., Lawrence K. Alwine, D.O., and Chester County Medical Associates. “A. preliminary objection in the nature of a demurrer is not to be sustained and the complaint dismissed unless the law says with certainty that no recovery is possible____ Therefore, if any theory of law will support the claim raised by the petition, a dismissal is improper.” Cianfrani v. Commonwealth State Employees’ Retirement Board, 505 Pa. 294, 479 A.2d 468 (1984). Additionally, when reviewing a trial court’s order sustaining preliminary objections in the nature of a demurrer, we must accept as true all material facts alleged in the complaint, as well as inferences reasonably deductible therefrom. Gentile v. West American Insurance Exchange, 367 Pa.Super. 99, 104-105, 532 A.2d 472, 475 (1987). We have carefully reviewed appellant’s complaint and we find that it does present a viable claim, assuming that the facts as alleged in the complaint can be proven by appellant. Therefore, we reverse.

The issue which we confront in this case is one of first impression. A review of the complaint presents the following underlying facts. On June 18, 1985, Janet Viscichini, a phlebotomist, visited the Lynch Home in Kimberton, Pennsylvania, in order to draw a blood sample from one of the Lynch Home residents. The patient apparently became agitated during the procedure and struck or kicked Ms. Viscichini. As a result, Ms. Viscichini’s skin was accidentally punctured with the needle that had been used to draw the patient’s blood sample. After being advised that the patient seen by Ms. Viscichini was a carrier of diseases, including hepatitis, Ms. Viscichini visited appellees, Guinta and Alwine, (hereinafter “physicians”) on June 18, 1985, for consultation and treatment. She was advised by her physicians that if she did not contract hepatitis within six weeks of June 18, 1985, she would not contract the disease. She was also advised by her physicians to refrain from sexual relations during this six week period.

Ms. Viscichini did not experience any physical symptoms of hepatitis and, eight weeks after the Lynch Home incident, Ms. Viscichini resumed sexual relations with the appellant. As the trial court noted in its opinion of July 15, 1988, Ms. Viscichini was separated from her husband and although she and the appellant did not reside together, they had been sexual partners before the July 15, 1985, incident. Further, the physicians who treated Ms. Viscichini knew both Ms. Viscichini and appellant personally and “were aware or had reason to know that [appellant] and Ms. Viscichini were intimate.” Op. of Trial Court at 2; N.T., May 19, 1988, at 34.

Ms. Viscichini was diagnosed v/ith Hepatitis B in September of 1985 and the appellant was subsequently diagnosed with this disease in December of 1985. Appellant instituted suit against Ms. Viscichini’s physicians, as well as the Lynch Home. Appellant claimed, inter alia, that the physicians had been negligent in failing to advise Ms. Viscichini that having sexual relations within six months of June 18, 1985, could cause her sexual partner to contract hepatitis. Although recognizing that in some cases physicians have been held liable in negligence to non-patients, the trial court stated:

... a physician has no control over the sexual conduct of his patients nor is he normally [apprised] of the extent to which sexual conduct is engaged in, or with whom, by his patients. Such is in line with acceptable boundaries of privacy recognized today. A physician’s duty should not extend into circumstances that might infringe on these boundaries.
Certainly, a duty may be owed to a husband in such circumstances in the medical care of his wife, whether they live together or not. The duty owed to a husband can be based on the financial obligations and responsibility of the husband to pay for necessary physician services rendered to the wife. Such liability may be primary or secondary. A non-husband has no such legal responsibility.
To adopt Plaintiffs view could extend a duty by physicians to a one time infrequent or casual sexual interaction. Such a view has no soundness in public policy.
To the contrary, the public policy of this Commonwealth remains, as before, in support of marriage and the family. The distinctions noted here are consistent with that policy.

Op. of Trial Court at 4. We agree that the public policy which supports and values the family unit in our society is vitally important. It is a public policy which our courts should recognize and consider in reaching decisions in many types of cases. However, under the particular circumstances of the instant case, we find that this public policy does not outweigh other considerations to demand the result reached by the trial court.

Our courts have recognized the general rule of law that “[t]he term ‘malpractice’ denotes a breach of the duty owed by one in rendering professional services to a person who has contracted for such services; in physician-malpractice cases, the duty owed by the physician arises from the physician-patient relationship.” Craddock v. Gross, 350 Pa.Super. 575, 579, 504 A.2d 1300, 1302 (1986) (quoting Rogers v. Horvath, 65 Mich.App. 644, 646, 237 N.W.2d 595, 597 (1975)). In Craddock, the appellant Dorian Craddock, at the request of his employer’s workmen’s compensation carrier, was examined following a work-related back injury. Dr. Gross, who was under contract with the employer’s workmen’s compensation carrier, performed the physical examination on behalf of the carrier and did not offer advice, diagnosis, treatment or prescriptions to Mr. Craddock. Dr. Gross informed the insurance carrier that Mr. Craddock had fully recovered. After he returned to work, appellant Craddock suffered a severe aggravation of his back injury. He instituted suit against Dr. Gross, alleging that the doctor had breached his duty of reasonable care in failing to properly evaluate Craddock’s physical condition. This Court in Craddock determined that Dr. Gross owed no duty arising from a physician-patient relationship to Craddock. We cited the following language from Cook v. Optimum/Ideal Managers, Inc., 130 Ill.App.3d 180, 84 Ill.Dec. 933, 939, 473 N.E.2d 334, 340 (1984):

While a patient certainly reposes confidence in his treating physician, the same cannot be said of an employee and a physician retained by the employee, not to treat the employee, but to examine him with reference to a pending worker’s compensation claim. Moreover, when the employee has other physicians treating his injury as in the instant case, it is difficult to see how the ... ‘physician’ would have domination and influence over him.

Recently, in Ervin v. American Guardian Life Assurance Company, 376 Pa.Super. 132, 545 A.2d 354 (1988), we relied upon our holding in Craddock. In that case, Thomas J. Ervin applied for life insurance and, at the request of the insurance carrier, an EKG was taken. The carrier’s medical director, Dr. Knee, examined the EKG which disclosed cardiac abnormalities which Dr. Knee failed to discover or, in the alternative, to disclose to Ervin. Less than a month after the EKG, Ervin suffered a heart attack and died. The Ervin Court stated:

... [T]he defendant physician in the instant case owed no duty to the plaintiff’s decedent either to discover his heart problem, or, having discovered it, to inform the decedent thereof. The defendant had been employed by American to advise the company whether the applicant was an insurable risk. He was not employed to make a diagnosis for the applicant or to treat the applicant for any condition which was discovered. Neither was there any evidence that the defendant, by giving the applicant advice or otherwise, had assumed a physician-patient relationship.

Id., 376 Pa.Superior Ct. at 139, 545 A.2d at 358. The appellant in Ervin attempted to rely upon Section 324A of the Restatement (Second) of Torts to create a duty on the part of the insurance carrier’s physician:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for the physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other person to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

Restatement (Second) of Torts § 324A. We found Section 324A inapplicable because, in Ervin, the physician had not read the EKG to benefit or to treat anyone but merely to advise the insurance company. Further, there was no reliance by Ervin on any medical advice offered to him by the carrier’s physician.

In the case at bar, we find that the appellant has stated a cause of action, pursuant to Section 324A, even though there was no physician-patient relationship between the appellant and Janet Viscichini’s physicians. In Cantwell v. Allegheny County, 506 Pa. 35, 483 A.2d 1350 (1984), our Supreme Court recognized that the essential provisions of Section 324A “have been the law of Pennsylvania for many years.” Id., 506 Pa. at 40, 483 A.2d at 1353. The present case is distinguishable from Ervin and Craddock, supra, which also lacked a physician-patient relationship between the plaintiff and the defendant, for a number of significant reasons. First, a physician-patient relationship did exist in the present case between Janet Viscichini and her physicians. Ms. Viscichini visited her physicians for the purpose of receiving professional treatment and medical advice when she knew that she may have been exposed to hepatitis. Second, this case involves a communicable disease. It hardly needs to be said that the prevention and control of communicable diseases is a momentous task which is of the utmost importance to the health and welfare of our citizens. The Disease Prevention and Control Law of 1955 requires a physician who treats or examines a person suffering from or who is suspected of having a communicable disease to make a prompt report to the local board of health or, if necessary, to the State Health Center of the Department. See 35 P.S. § 521.3; 28 Pa.Code § 27.21(a) and (b). We note that 28 Pa.Code § 27.115 specifically requires physicians to report cases of Hepatitis B. Further, several provisions of the Pennsylvania Code set forth procedures to be followed to prevent the contamination of our blood banks with blood from donors who suffer from or may have been exposed to viral hepatitis. See 28 Pa.Code §§ 27.51 and 30.30(7)(i).

Although there is a dearth of case law addressing medical malpractice in relation to communicable disease, several other jurisdictions have considered cases similar to the case at bar. Although none of these cases rely on Section 324A of the Restatement (Second) of Torts, we find their reasoning and underlying public policy considerations persuasive. In Wojcik v. Aluminum Company of America, 18 Misc.2d 740, 183 N.Y.S.2d 351 (1959), the plaintiff, Joseph Wojcik, had been examined by a physician who was apparently an agent of Mr. Wojcik’s employer. It was the practice of the employer to inform the employee of any physical problems discovered during the course of the physical examination. In Wojcik’s case, it was alleged that his employer was negligent in failing to advise Wojcik that X-ray results indicated that he had tuberculosis. Joseph Wojcik’s wife, Caroline Wojcik, was also a plaintiff in the suit, claimed that due to the negligence which had occurred, she failed to take immediate and proper steps to avoid contracting tuberculosis from her husband. The Wojcik Court held that Caroline Wojcik had stated a cause of action and, accordingly, motions to dismiss were denied. The Court opined:

... the defendant could have reasonably anticipated that the plaintiff-husband, without knowledge of his contagious disease, would not take precautionary measures necessary to prevent infecting others, including his wife, with the germs of the disease.
In 41 Am.Jur., Physicians and Surgeons, § 101, p. 216, it is stated: “One who by reason of his professional relations is placed in a position where it becomes his duty to exercise ordinary care to protect others from injury or danger is liable in damages to those injured by reason of his failure to do so.” The policy of the law in general is stated in 70 C.J.S. Physicians and Surgeons § 48, p. 970, as follows:
“It is the duty of a physician who is attending a patient afflicted with a contagious or infectious disease to exercise care in advising and warning members of the family and others who are liable to exposure of the existence and nature of the danger from the disease, to avoid doing any act which would tend to spread the infection, and to take all necessary precautionary measures to prevent its spread to other patients attended. A physician who fails to give such warning is negligent, and is liable in damages to any person injured as the direct and proximate result of his negligence.”
The plaintiff, Caroline Wojcik, the wife of the plaintiff Joseph Wojcik whom the doctors, as agents of the defendant, discovered was infected with tuberculosis, a contagious disease, is clearly within the ambit of the duty and
the liability of these agents____

Id. at 746-747, 183 N.Y.S.2d at 358-359.

Wojcik v. Aluminum Company of America, supra, was subsequently relied upon by the Court in Hofmann v. Blackmon, 241 So.2d 752 (Fla. 4th DCA 1970), cert. denied, 245 So.2d 257 (Fla.1971), wherein a minor child had contracted tuberculosis from her father after the father’s physician failed to diagnose that he had the disease. The Hofmann Court held the following:

We hold that a physician owes a duty to a minor child who is a member of the immediate family and living with a patient suffering from a contagious disease to inform those charged with the minor’s well being of the nature of the contagious disease and the precautionary steps to be taken to prevent the child from contracting such disease and that the duty is not negated by the physician negligently failing to become aware of the presence of such a contagious disease.

Id. at 753. More recently, in Shepard v. Redford Community Hospital, 151 Mich.App. 242, 390 N.W.2d 239 (1986), the Court of Appeals of Michigan held that the absence of a physician-patient relationship between a hospital and a deceased child did not preclude a finding of a duty on the part of the hospital. In that case, the child’s mother went to the defendant hospital because she was suffering from high fever, leg pain, congestion, headaches and weakness. The doctor who examined her failed to determine that she had spinal meningitis. After she had returned to her home, her son contracted the disease and later died as a result. The Court stated that “[generally, a party has no duty to protect another who is endangered by a third person absent a special relationship with either the dangerous person or the potential victim.” Id. at 245, 390 N.W.2d at 241 (citations omitted). The Court found that the defendant hospital had a special relationship with its patient, the mother. “This was a special relationship with the one who allegedly infected [the child], leading to his death. Accordingly, a duty of reasonable care may arise.” Id.

Finally, the facts as alleged by the appellant in the instant case, fit squarely within Section 324A, subsection (c), of the Restatement of Torts 2d (1977). Janet Viscichini’s physicians, knowing that their patient had been exposed to a communicable disease, advised her concerning precautions she was required to take in order not to spread hepatitis to a healthy person. The physicians certainly recognized that this information was necessary for the protection of third parties. It is alleged that Ms. Viscichini’s physicians were negligent because the information they provided to Janet Viscichini was erroneous. Assuming that appellant is able to establish this fact, then Ms. Viscichini’s physicians may be subject to liability pursuant to Section 324A, subsection (c), if appellant can also establish, as he states in his appellate brief, that he suffered harm because of his reliance on the advice that Janet Viscichini had received from her physicians. Appellant states that “[t]he appellee physicians are alleged to have negligently and/or recklessly dispensed medical advice, which impacted on Janet Viscichini’s decision to have sexual relations with appellant, as well as appellant’s decision to have such intimate relations with her.” Brief for Appellant at 8-9; N.T., May 19, 1988, at 39. Since appellant has claimed that he was aware of the medical advice given by Ms. Viscichini’s physicians, provided in the context of a physician-patient relationship, and that he relied on that advice in consenting to sexual relations with Ms. Viscichini, we find that appellant has set forth cause of action in negligence. We therefore reverse the order of the trial court, dismissing appellant’s complaint, and we remand for further proceedings consistent with this Opinion.

Reversed and Remanded. Jurisdiction is relinquished.

      . A communicable disease is defined as “[a]n illness due to an infectious agent or its toxic products which is transmitted, directly or indirectly, to a well person from an infected person, animal or anthropoid, or through the agency of an intermediate host, vector of the inanimate environment.” 35 P.S. § 521.2(c). Other obvious examples of communicable diseases include AIDS (Acquired Immune Deficiency Syndrome), Syphilis, Tuberculosis.

      . We also take note of Soto v. Frankford Hospital, 478 F.Supp. 1134 (E.D.Pa.1979). There, the plaintiff, administratrix of her husband’s estate, claimed that physicians who had treated her had been negligent in failing to diagnose her condition as carbon monoxide poisoning. As a result, she was not alerted to the fact that her gas heater was defective and that this failure to warn was the proximate cause of her husband’s death from carbon monoxide poisoning. The court refused to hold the physicians liable to the deceased husband, a non-patient, and in so doing, the court distinguished cases involving communicable diseases:
      In the case sub judice, the physicians were not under a duty to control the conduct of Mrs. Soto. The injuries from which both she and her husband suffered were not caused by communicable disease. Moreover, the decedent was not injured as a result of an act performed by Mrs. Soto.
      In the cases cited by the plaintiff, the respective courts extended a duty to the treating physicians for various reasons. In the cases dealing with a communicable disease, it was determined that the physician is in a position to prevent the diseases’ proliferation____

        Id. at 1136 (footnote omitted).

      . Our decision is limited to the facts of the case presently before us. Our Supreme Court stated the following principle in Kaczkowski v. Bolubasz, 491 Pa. 561, 579 n. 21, 421 A.2d 1027, 1036 n. 21 (1980): "We refrain 'from attempting to fashion broad general rules as a panacea. The obviously wiser choice is to resolve disputes on a case-by-case basis until we develop, through experiences in [an] area, a sound basis for developing overall principles.’ ” We do not hold that Viscichini’s physicians had a duty to control her conduct, but only that they had a duty to act reasonably in advising her regarding her ability to transmit her communicable disease. This case is one which involves medical advice, given in the context of a physician-patient relationship, concerning precautions to prevent the spread of a communicable disease by the patient. Importantly, in the case at bar, the third party to the physician-patient relationship claims to have been aware of the medical advice concerning the transmittal of the disease, and to have relied and acted upon this medical advice in interacting with the patient. We need not consider at this time whether a duty on the part of a physician will be recognized if a third party contracts a communicable disease from a patient who is acting on incorrect medical advice, where the third party was never advised of the medical advice by the patient. In the case presently before us, we have reliance by the third party on the defendant physicians’ medical advice. Under these circumstances, we are willing to find that the physicians owed a duty of reasonable care to the non-patient. See Gerace v. Holmes Protection of Philadelphia, 357 Pa.Super. 467, 516 A.2d 354 (1986) (installer and maintainer of burglar alarm system in jewelry store owed no duty of care to ring owners who had left rings at the store prior to the burglary, as ring owners could not have relied on placement of the burglar alarm system because they had no knowledge of the existence of the system).

      . The trial court also dismissed the complaint against the appellees Lynch Homes — Chester County, Inc. This was erroneous because Lynch Homes did not file any preliminary objections. See Galdo v.

        First Pennsylvania Bank N.A., 250 Pa.Super. 385, 378 A.2d 990 (1977). Thus, the complaint as a whole should not have been dismissed.


source: Caselaw Access Project

author: CIRILLO, President Judge, WIEAND, J., CIRILLO, President Judge: DEL SOLE, Judge, WIEAND, Judge: CIRILLO, President Judge,

license: Public Domain

text:
    559 A.2d 535
    Francis P. MANTELL, Appellant v. Eiko MANTELL.
    Superior Court of Pennsylvania.
    Argued June 13, 1988.
    Filed May 11, 1989.

      Charles D. Vance, Jr., Mechanicsburg, for appellant.
    Samuel L. Andes, Lemoyne, for appellee.
    Before CIRILLO, President Judge, and WIEAND and DEL SOLE, JJ.
   CIRILLO, President Judge,

delivers the opinion of the court affirming the divorce decree, the award of alimony and the equitable distribution order, in which WIEAND, J., joins. DEL SOLE, J., files a concurring and dissenting opinion.

WIEAND, J.,

files a separate opinion, in which he delivers the majority view on the issue of counsel fees, reversing that part of the trial court’s order awarding out of state counsel fees, in which DEL SOLE, J., joins. CIRILLO, President Judge, files a dissenting opinion.

CIRILLO, President Judge:

This is an appeal challenging various rulings on exceptions to an order of the Court of Common Pleas of Cumberland County granting a divorce, equitably distributing marital property, and awarding alimony and counsel fees. We vacate only that portion of the order directing payment of counsel fees to Mrs. Mantell’s Texas counsel.

The parties were married in Mrs. Mantell’s native country, Japan, in 1964. In 1982, Mr. Mantell, appellant here, instituted a Section 201(d) divorce action in Pennsylvania, where both parties resided. Appellee, Mrs. Mantell, responded, denying that the marriage was irretrievably broken or that the parties had been separated for three years. She also raised claims for economic relief, including counsel fees. Mr. Mantell later moved to Texas where, in 1983, he filed another divorce action. That action initially proceeded to a default judgment of divorce but was eventually dismissed by the Texas court in 1986 for lack of subject matter jurisdiction.

In 1985 Mrs. Mantell, who remained in Pennsylvania, successfully filed for the appointment of a master. A hearing, not attended by Mr. Mantell or his counsel, was held several months later. The master’s report, recommending the granting of the divorce and the distribution of the property, was filed in October of 1985. Exceptions by both parties followed.

The trial court heard argument on these exceptions in July of 1986 and remanded the matter to the master for consideration of Mrs. Mantell’s claims for alimony and alimony pendente lite, issues on which the master’s report had been silent. Both parties subsequently requested that the court discharge the master and hear the remaining issues.

Following a hearing in August of 1987, the court issued its October 28, 1987 order and opinion which contained findings of fact and which granted the divorce, distributed the property and awarded alimony and fees. Both parties filed for post-trial relief and, except for correcting the weekly net income attributed to Mr. Mantell (the court had erroneously picked up a bi-weekly figure), its October 28th order was reconfirmed as the final order in the case. This appeal followed.

Appellant raises five issues for our review:

1. Did the court err in failing to lower alimony after correcting Mr. Mantell’s weekly net income, thereby reducing it by half?
2. Did the court err in including as marital property subject to equitable distribution realty in Costilla County, Colorado?
8. Did the court err in not designating a percentage of Mr. Mantell’s pension to which Mrs. Mantell is entitled?
4. Did the court err in awarding fees for Mrs. Mantell’s out-of-state counsel, such an award being unsupported on the record?
5. Did the court err in not addressing or discussing Mr. Mantell’s argument #4 above when disposing of Mr. Mantell’s exceptions to the October 28, 1987 order?

With respect to the first four of these issues, appellant asks that we “correct the error and modify” the trial court’s order; he asks that we reverse and remand for explanation as to issue number five.

Mr. Mantell first argues that it was an abuse of discretion not to reduce the alimony award when the court realized its error in finding Mr. Mantell’s net weekly income. He concedes that the evidence supports an award of alimony, but asserts that the court abused its discretion in setting the amount. He reads the court’s order and opinion of October 28th as relying most heavily on the disparity of income between the parties as the basis for its alimony award and finds unsatisfactory its statement, made on consideration of his exception, referring to the other relevant factors at §§ 102(a)(6) and 501 of the Divorce Code in support of its decision to leave the alimony as originally awarded.

Mrs. Mantell points out that the court’s original finding of fact regarding Mr. Mantell’s annual income used the correct figure and that the trial court’s discussion in its opinion uses the correct figures for the parties’ incomes. Additionally, she notes, as did the trial court, that this was only one of at least fourteen factors considered in making the award. She also observes that the trial court was correct in using annual income figures, consideration of a net weekly figure not being reflective of Mr. Mantell’s true ability to pay alimony since the tax impact of paying alimony is not reflected in it. She therefore suggests that the one error in stating weekly income was more typographical than substantive. Mrs. Mantell also argues that, since the trial court had the opportunity to correct the alimony figure, so long as the record supports the award, there is no abuse of discretion.

The trial court took into consideration a number of factors in making the alimony award, most tellingly Mrs. Mantell’s meager education and limited facility with the English language, the parties’ respective assets and liabilities, and their prospects for future income generation. The award was not based on a percentage of Mr. Mantell’s income, and, therefore, Mr. Mantell’s argument that after the correction of the net weekly income figure, not changing the dollar amount of the alimony award results in an award of a much larger proportion of his income, is of no merit. The trial court adequately addressed the facts of this case and the elements of our Divorce Code in setting the amount of alimony and gave due consideration to Mr. Mantell’s ability to pay. It did not abuse its discretion in refusing to alter the alimony amount because of its initial error in stating Mr. Mantell’s net weekly income. The record supports the award made and we will not disturb it.

Mr. Mantell next contends that the evidence, specifically his testimony at the August hearing, showed that the property in question, a number of undeveloped lots in Colorado, was held as a gift for the parties’ son, having been purchased specifically for that purpose in 1971. He argues that there was no evidence to the contrary before the court and that it was, therefore, error to find this property subject to equitable distribution. Mrs. Mantell points out that the deeds were in joint names and argues that the trial court’s ruling was correct in that Mr. Mantell did not meet his burden of proof to rebut the presumption of marital property. The trial court pointed to the evidence of record showing joint title, citing 28 P.S. § 401(e) which defines marital property as “all property acquired by either party during the marriage.” The court concluded that it had distributed the property in accordance with the legislative intent expressed in 23 P.S. § 102(a)(6) — to do economic justice between the parties. We find the trial court’s decision on this issue to be unassailable.

Mr. Mantell next complains that the deferred distribution method of pension valuation chosen by the court was improper. Because the trial court found that Mr. Mantell’s pension was too speculative to determine a coverture fraction, the court elected to retain jurisdiction to allocate the benefits at the time of retirement. Mr. Mantell concedes that this method of distributing the pension is viable and allowable under the law, yet charges error in the trial court’s failure to fix a formula by which the pension will eventually be divided. He argues that the court, if it truly wished to end the legal entanglement between these parties, would have set a definite percentage of Mr. Mantell’s pension to which Mrs. Mantell is entitled. He cites Braderman v. Braderman, 339 Pa.Super. 185, 488 A.2d 613 (1985), which sets out alternate methods for distribution of pensions and observes that immediate offset method has the advantage of contemporaneous finality, as support for this proposition. Mrs. Mantell endorses the trial court’s position that it had too many variables and too few definite facts before it to calculate either the numerator or the denominator of the coverture fraction necessary to a determination of the proportion of retirement benefits attributable to the marriage. She submits, and we agree, that the trial court properly applied the law to the facts of this case. See Flynn v. Flynn, 341 Pa.Super. 76, 491 A.2d 156 (1985) (deferred distribution method preferable given speculative nature of pension).

The evidence shows that it was not possible to know, as of the hearing date, either the numerator representing Mr. Mantell’s total time in the pension plan during the marriage (he still had the opportunity to “buy back” some lost time), or the denominator representing the total time he participated in the plan (he was still active with no plans for retirement). Both of these numbers are essential to setting up the coverture fraction. King v. King, 332 Pa.Super. 526, 533, 481 A.2d 913, 916 (1984). Therefore, no matter how much the court might have wished to end the parties’ legal wrangling, it was not possible for it to determine a coverture fraction to be applied to the pension for immediate valuation. We note that even though the master’s report fixed a numerator for the fraction , it determined that the pension, because of the unknown total length of service, could not be subject to immediate distribution. Appellant’s argument is without merit in that the immediate offset method of pension evaluation was not appropriate in this case. The trial court was correct in so finding and in using the alternative “reserve jurisdiction method.” See Braderman, supra.

Mr. Mantell’s final arguments on appeal challenge the award of $3,881.25 in counsel fees and charge that the trial court failed to address this argument, raised by exception. He claims that a remand is necessary for an explanation on the record of the trial court’s action. Before turning to a consideration of those arguments, we note that what follows does not represent the view of a majority of the members of this panel. As to this issue, the majority view is stated in Judge Wieand’s separate opinion, appended below.

The issue of counsel fees, properly raised by Mrs. Mantell in her answer to, and counterclaim in, the Pennsylvania action and properly within Pennsylvania’s jurisdiction was, at the request of both parties, removed from the master and addressed by the court at the August 1987 hearing. At the master’s hearing some two years earlier, Mrs. Mantell’s Pennsylvania counsel testified that he had, on Mrs. Man-tell’s behalf, retained a Texas attorney “for the limited purpose of challenging the jurisdiction of the court in Texas because of the pending Pennsylvania divorce,” that the Texas attorney had, to that time, “done a limited amount of work there,” and that he had had a discussion with the Texas attorney two months prior to the master’s hearing and had “asked him at that time how much he estimated was owed, and he told me that he felt that he was owed $500.00.” The master, in his report, found these fees to be reasonable and advised the court that “maintaining the Texas action, after Mr. Mantell had sued as Plaintiff here in Pennsylvania, was improper,” that “all Mrs. Mantell’s legal expenses associated with the Texas action should be paid by Mr. Mantell” and, because the Texas action was not yet resolved, that “the Court should retain jurisdiction of the matter of future attorney’s fees and costs arising from the action in Texas.” The trial court cited Young v. Young, 274 Pa.Super. 298, 418 A.2d 415 (1980), for the factors to be considered in awarding attorney’s fees: the spouses’ ability to pay, the recipient’s need, and the reasonableness of the fees as charged. It found that Mrs. Mantell clearly did not have the ability to pay her fees, that she needed assistance in paying them, and that Mr. Mantell was in a position to help with these costs. Additionally, it stated, “[w]e, however, cannot conclude that the fees owed to [counsel] in Texas are reasonable. A bill totaling $7,762.50 has been submitted for his services. [Mr. Mantell] will be held responsible for 50 per cent of this bill or $3,881.25.”

Mr. Mantell objects to this award as unreasonable, arguing that it was contrary to and unsupported by the evidence. He points to the disparity between that figure and the $500.00 fee presented at the July 1985 hearing. He argues that the record does not support either the total billed or the amount Mr. Mantell was ordered to pay. Mrs. Mantell underscores the policy behind awarding attorney’s fees and argues that this is a case where such an award is eminently justified. She also argues that the July 1985 figure was a mere estimate on the part of her Pennsylvania attorney, that the litigation handled in Texas ultimately spanned more than three years, and that the trial court was well within its province to weigh the conflicting evidence and conclude that Mr. Mantell should pay some portion of the expense incurred.

Our scope of review of an award of counsel fees in a divorce action is limited to a determination of whether the trial court committed an abuse of discretion. Campbell v. Campbell, 357 Pa.Super. 483, 516 A.2d 363 (1986). In a situation such as this where the fees requested fall outside the usual process of divorce litigation, the discretion of the trial court is especially taxed. As this court noted in Williams, supra:

Although Section 401(b) of the Divorce Code allows a court to make an award of counsel fees, it does not provide any guidance as to how a court shall determine where such an award would be appropriate. This guidance is found in our case law, which has developed in two directions. Although many cases require the petitioning spouse to demonstrate that he/she is in actual need of the award of fees in order to achieve “par” in protecting his/her rights in the divorce action, other cases indicate that the trial court may be guided by a somewhat broader spectrum of considerations in deciding to award counsel fees. Johnson v. Johnson, 365 Pa.Super. 409, 529 A.2d 1123 (1987) (Beck, J., concurring), and cases cited therein. The latter cases indicate that the trial court should consider all relevant factors, including equitable considerations. Id.

Id., 373 Pa.Superior Ct. at 155-56, 540 A.2d at 569. There is sufficient evidence of record to substantiate Mrs. Man-tell’s need of assistance with the expenses connected with the Texas litigation and Mr. Mantell’s ability to pay the award. Indeed, Mr. Mantell has not challenged her entitlement to an award of reasonable counsel fees. The trial court concluded, however, that the charges made by Texas counsel were unreasonable, even given the duration of the Texas action. Although it properly reduced the amount of the award in light of this finding, I must agree with Mr. Mantell that the trial court failed to state a rationale adequate to support the amount actually entered. While the evidence submitted by Mrs. Mantell might, upon further examination by the factfinder, be sufficient to establish an amount that would constitute a reasonable fee for the time expended and the services rendered, I must conclude that in the absence of a specific finding to that effect the trial court’s award of $3,881.25 toward fees charged by Texas counsel was an abuse of discretion. Accordingly, I would vacate the award of counsel fees and remand for further proceedings to determine reasonable counsel fees.

WIEAND, J., joins, except on the issue of counsel fees as stated in his separate Opinion.

DEL SOLE, J., files a concurring and dissenting opinion.

JUDGMENT

ON CONSIDERATION WHEREOF, it is hereby ordered and adjudged by this Court that the Decree of divorce, equitable distribution order and order awarding alimony are affirmed; order awarding counsel fees is reversed.

DEL SOLE, Judge,

concurring and dissenting:

Although I agree with President Judge Cirillo’s disposition of the issues raised by Appellant pertaining to alimony and equitable distribution of certain real property, I find it necessary to join Judge Wieand with regard to the Texas counsel fee award. Further, I dissent from that portion of President Judge Cirillo’s Opinion which addresses the pension award.

The trial court held that, because of particular uncertainties, it would not distribute the pension at the time of its ruling, but instead would elect to provide for a deferred distribution settlement. The courts and authors in this area have recognized deferred distribution as an alternative method to immediate offset as a means for effectuating benefit settlements. Flynn v. Flynn, 341 Pa.Super. 76, 491 A.2d 156 (1985); Troyan, Pension Evaluation and Equitable Distribution, 10 Fam.L.R. 3001 (1983). While deferred distribution is a recognized option, the court in this case set forth an incorrect formula for determining the ultimate award.

The trial court stated that it was applying the formula detailed by this court in King v. King, 332 Pa.Super. 526, 481 A.2d 913 (1984). In King it was held that a “coverture” fraction was to be applied to the benefit when it entered pay status. “The numerator of the fraction is the total period of time the employee spouse was participant in the plan from date of marriage until date of separation, and the denominator is the total period of participation in the pension plan.” Id., 332 Pa.Superior Ct. at 533, 481 A.2d at 916. When the pension enters pay status, the coverture fraction is to be multiplied by the benefit. The result will yield the portion of pension benefits entitlement which is marital property. It is for the court to determine how the sum available for equitable distribution is to be apportioned between the spouses. See: Troyan, Pension Evaluation and Equitable Distribution, supra, at 3007.

In the instant case, the trial court correctly created the “coverture fraction”. The numerator was found to be 5.917, the number of years that Appellee participated in the plan from the date of marriage until the date of separation. The denominator was yet to be determined by the court since it represented Appellant’s total number of years as a participant in the plan. However, the court erred when it stated that this fraction equaled “Defendant’s % share of pension.” The coverture fraction does not determine one spouse’s share of that pension. The coverture fraction is to be multiplied by the actual benefits. The resulting figure will equal, not Mrs. Mantell’s share but, the portion of the pension which is marital property.

The task of equitable dividing the actual portion of the pension which is marital property is a separate matter for the court to determine. In some cases this task too is done . at a latter date, when the plan enters pay status. However, I believe it would be a better practice for the court, at the time of equitable distribution to assign the nonemployeespouse a percentage to be received from whatever amount is latter determined to represent the marital property portion of the pension. By predetermining the nonemployeespouse’s percentage share, the trial court will be one step further in ending the parties legal entanglements. At the time of retirement all that will remain for the court is an exercise in simple mathematics. The potential for lengthening the hostilities between the parties will be minimized. I hasten to point out that the use of the “deffered distribution” method in pension matters should be a last resort tactic. Trial court’s should seek immediate offset of pensions and utilize actuarial values whenever possible. These methods would have the salutary benefit of ending the parties’ litigation and of providing certainty for the nonemployee-spouse. See: Flynn v. Flynn, supra (Concurring and Dissenting Opinion by Beck, J. 491 A.2d at, 164).

The master in this ease recommended such a percentage. He suggested that wife be entitled to receive one-half of the monthly retirement pay which is determined to be marital property. Under the circumstances of this case, I believe that such an award would be fair and equitable. Accordingly, I believe the court should set forth a percentage, such a the 50% recommended by the master. This figure can later be applied to the coverture fraction multiplied by Mr. Man-tell’s monthly retirement benefits to calculate the amount Mrs. Mantell shall receive each month.

In conclusion, I believe the case should be remanded to the trial court to correct the pension award which will ultimately be received by Mrs. Mantell. It is also my position that the trial court should, at the time when it sets forth the known figures for the pension calculation, determine what percentage Mrs. Mantell is equitably entitled to enjoy for that portion of the pension which is eventually determined to be marital property.

WIEAND, Judge:

I agree with President Judge Cirillo that, except for the trial court's award of counsel fees in the Texas action, the decree of divorce and order of distribution must be affirmed. The award of counsel fees in the Texas action, however, was improper and must be vacated.

In 1982, Francis P. Mantell, husband, filed a divorce action against his wife, Eiko Mantell, in Cumberland County, Pennsylvania. While that action was pending, the husband moved to Texas and there commenced a second divorce action. Wife challenged the jurisdiction of the Texas court, and that court eventually dismissed the divorce action there filed on grounds that it lacked subject matter jurisdiction. When a divorce decree was subsequently entered in Pennsylvania, the Cumberland County court made an award to wife for counsel fees which she had incurred in defending the action in Texas. This was unwarranted and improper.

The general rule is that the parties to litigation are responsible for their own counsel fees and costs unless otherwise provided by statutory authority, agreement of the parties, or some other recognized exception. Chatham Communications, Inc. v. General Press Corp., 463 Pa. 292, 300-301, 344 A.2d 837, 842 (1975); Shapiro v. Magaziner, 418 Pa. 278, 280, 210 A.2d 890, 892 (1965). Section 401(b) of the Divorce Code in Pennsylvania authorizes a court to award reasonable counsel fees in a divorce action. However, such fees must arise as a direct result of the divorce action under consideration by the court. See generally: McNulty v. McNulty, 347 Pa.Super. 363, 374, 500 A.2d 876, 882 (1985). See also: Padezanin v. Padezanin, 341 Pa.Super. 26, 491 A.2d 130 (1985) (counsel fees attributable to present divorce action may be recovered, but fees arising from prior support action and prior divorce action are not recoverable). Section 401(b) does not authorize an award for counsel fees incurred in a separate action.

Whether counsel fees were recoverable in the Texas action was determinable according to Texas law. If they were recoverable, they could be allowed only as an incident of the action in Texas. They could not be awarded by the courts of another state in a separate action. See: Williams v. Williams, 373 Pa.Super. 143, 540 A.2d 563 (1988) (Concurring and Dissenting Opinion by Wieand, J.).

It is elementary that the judgment of every court on matters within its jurisdiction is conclusive on every other court. See: 20 P.L.E. Judgments § 251. “The doctrine of res judicata precludes the parties from relitigating controversies which have been settled by a valid final judgment of a court of competent jurisdiction____” Id. The final judgment of a court having competent jurisdiction is final not only as to matters which were actually raised therein but also as to matters which might have been raised. The right to recover counsel fees, where recoverable, is a part of the principal action and must be asserted therein. A separate action to recover counsel fees is not permitted; it constitutes an impermissible splitting of a single cause of action. Goldberg v. Goldberg, 306 Pa.Super. 504, 506, 452 A.2d 838, 839 (1982); Leomporra v. American Baking Co., 198 Pa.Super. 545, 549-550, 178 A.2d 806, 807 (1962). “A single claim or demand cannot be divided and made the subject of several actions, and if actions are brought for different parts of a single demand a judgment on the merits in one is available as a bar to the others.” 20 P.L.E. Judgments § 258. See: Spinelli v. Maxwell, 430 Pa. 478, 243 A.2d 425 (1968). So it is with a claim for counsel fees. It is a part of the claim which inures to a party, where permitted, as a part of the principal action. It cannot be split from the principal action. If counsel fees are not claimed in the principal action, the judgment entered therein is a bar to a subsequent action for such counsel fees.

This is particularly so where a second action for counsel fees is brought in a state different from that in which the principal action was litigated. The allowance of counsel fees in the principal action must be determined by the law of the state in which that action was brought, and when that issue has been determined, whether in contested-proceedings or because a claim therefor was not made, the determination is final. It cannot be relitigated in collateral proceedings brought in another state.

There is neither statutory authorization nor principle of common law which permits a Pennsylvania divorce court to award counsel fees incurred by a party in prosecuting or defending a separate action in another jurisdiction. For this Court to adopt a rule permitting “Pennsylvania courts to second guess the courts of another jurisdiction with respect to counsel fees incurred in litigation pursued in the courts of such other jurisdiction would be improvident, unwieldy, and unwise and would violate principles of res judicata.” Williams v. Williams, supra, 373. Pa.Superior Ct. at 163, 540 A.2d at 573 (Concurring and Dissenting Opinion by Wieand, J.). There is no good reason for allowing a cause of action to be split and a separate action maintained for counsel fees. Counsel fees must be recovered, if at all, in the action in which such fees were incurred by a party.

Even if counsel fees incurred in Texas could be recovered in this action, the wife-appellee failed to introduce evidence sufficient to sustain the court’s award. The only evidence offered in support of the wife-appellee’s claim was a copy of a bill prepared by Texas counsel in the amount of $7,762.50. There was no testimony regarding the nature of the services rendered, the time spent, or the reasonableness of the charges. The trial court deemed the charges excessive and reduced the amount by one-half. The allowance of this amount, however, was arbitrary and wholly unsupported by evidence.

For these reasons, the part of the trial court’s order which made an award to the wife-appellee for counsel fees incurred in the separate action in Texas must be and is reversed. The case will not be remanded for another hearing to permit the wife-appellee a second opportunity to prove the reasonable amount of counsel fees incurred in such action.

CIRILLO, President Judge, files a dissenting opinion.

CIRILLO, President Judge,

dissenting:

I respectfully dissent to Judge Wieand’s opinion with respect to the issue of counsel fees as stated in my separate opinion.

      . This numerator, assumed that Mr. Mantell would buy back his lost time in the plan. The trial court' declined -to adopt this figure as it judged it to be improper for the court to force Mr. Mantell to buy back the time.

      . In addressing this issue, I would not decide whether the trial court’s order was proper insofar as it ordered payment of fees charged by out-of-state counsel in defense of the jurisdictionally defective Texas action. The authority of Pennsylvania courts to grant such relief is an open question in light of this court’s divided decision in Williams v. Williams, 373 Pa.Super. 143, 540 A.2d 563 (1988). However, Mr. Mantell has not challenged, either in the trial court or on appeal, the trial court’s authority to order payment of the out-of-state fees, focusing instead on the reasonableness of the fees assessed against him. Accordingly, I would leave for another day the resolution of the questions of statutory interpretation and application of principles of res judicata and collateral estoppel which are suggested by Williams.

      . Act of April 2, 1980, P.L. 63, No. 26, § 101, 23 P.S. § 101 et seq.


author: CIRILLO, President Judge:

text:
    559 A.2d 544
    Don G. LAMPARSKI, Executor of the Estate of Henry C. Lamparski, Jr., Deceased v. SIKOV, LAMPARSKI & WONCHECK, a Professional Corporation, Appellant. Don G. LAMPARSKI, Executor of the Estate of Henry C. Lamparski, Jr., Deceased, Appellant v. SIKOV, LAMPARSKI & WONCHECK, a Professional Corporation.
    Superior Court of Pennsylvania.
    Argued March 2, 1989.
    Filed May 15, 1989.

      Seymour A. Sikov, Pittsburgh, for appellant (at 465) and appellee (at 540).
    Maureen D. Harvey, Pittsburgh, for appellee (at 465) and appellant (at 540).
    Before CIRILLO, P.J., and TAMILIA and JOHNSON, JJ.
   CIRILLO, President Judge:

These cross appeals are from an order entered in the Court of Common Pleas of Allegheny County dated February 26, 1988 which adopted the recommendations and conclusions of an appraiser and directed Sikov, Lamparski & Woncheck (“SLW”), a professional corporation engaged in the practice of law, to pay Don Lamparski, executor of the estate (“executor”) of Henry C. Lamparski, (“decedent”) a sum of $53,085.50.

Executor appeals from the order which valued decedent’s shares of SLW at $53,685.50. Executor contends that the trial court erred in its valuation because it did not place a value on the contingent fee cases which were referred to Sikov and Love, P.A., another law firm. The referral occurred prior to the time of decedent’s death but the cases were not disposed of until after the date of death, and consequently the fees generated therefrom were not collected until after the date of death. SLW also appeals from this order which valuated decedent’s shares.

The decedent was an attorney and a holder of fifteen shares of SLW on the date of his death, September 3, 1984. At that time, there were thirty shares of stock in SLW outstanding. Executor filed a complaint in equity against SLW, Irving Sikov and William Woncheck, in which he asked the court to order an accounting, appoint a receiver and marshal to account for the assets of SLW, dissolve SLW, and pay the decedent’s estate fifty percent of the net value determined of SLW.

Pursuant to 15 Pa. § 2901 et seq., the court appointed an appraiser to hear testimony and to determine the value of decedent’s fifteen shares. The court appointed Edwin Martin, Esquire, and, following a three day hearing, he submitted his conclusions and recommendations to the court. The report reveals that the ultimate issue to be determined was the value of the fifteen shares of stock held by decedent, and that the parties disagreed over the proper treatment of numerous pending personal injury cases which had been referred to the professional corporation of Sikov & Love, P.A., prior to decedent’s death. According to the appraiser’s report, these cases were subject to contingent fee arrangements, and any fee recovered by Sikov & Love would be divided equally with SLW.

After hearing testimony, the appraiser determined that the net asset method of valuation should be used to establish the value of decedent’s shares as of September 4,1984. The appraiser stated that notwithstanding the executor’s contention that future referral fees should be classified as assets of SLW and so valued, he must value the stock as of September 3, 1984, and consequently he would place no value on these cases.

Furthermore, he stated that while he was making his valuation as of the date of decedent’s death, most of the evidence relating to net asset value was generated from financial documents which related to the year ending December 31, 1984. He stated that the balance sheet of SLW for the year ending December 81, 1984, showed that the thirty shares of SLW had a value of $52,751.00. In a footnote to his report, the appraiser noted that neither party presented a financial statement of SLW for the period ending August 81, 1984. He stated that this would have been helpful because decedent’s date of death was only several days thereafter. The appraiser also noted that the evidence presented of the corporate accounts as of September 3, 1984 did not contain sufficient facts from which a net asset value could be calculated. To calculate the fair value of the shares as of September 8, 1984, the appraiser added $53,420.00, an amount representing the bonuses paid to Sikov and Woncheck on December 21,1984 to the December 31,1984 value. The report thus concluded that the value of SLW as of September 3, 1984 was $106,171.00 and that decedent’s fifteen shares had a value of $53,085.50.

On February 26, 1988, the Honorable Raymond Scheib adopted the appraiser’s recommendations and ordered SLW to pay executor $53,085.50. Both parties then filed appeals from the order dated February 26, 1988.

Executor raises one issue for our consideration. He claims that the trial court erred in failing to include the attorney’s fees from the cases referred to Sikov and Love, in its valuation of the decedent’s shares in SLW.

SLW, in its appeal, raises two issues for our review. First, SLW argues that the trial court erred by adopting the appraiser’s evaluation because it was not made as of September 3, 1984. SLW also argues that the trial court erred in using the balance sheet of SLW dated December 31, 1984, a document prepared three and one-half months subsequent to decedent’s death, in its valuation. Second, SLW contends that it was erroneous for the trial court to include, in its valuation, the amount of monies paid to Sikov and Woncheck, in the form of bonuses, on December 21, 1984, which was approximately three and one-half months following the date of decedent's death.

With respect to the issue regarding the fees received from the referral cases, executor states that 15 Pa.S. § 2911 provides for the appraisal of decedent’s shares and directs the appraiser to proceed in accordance with 15 Pa.S. § 1515, the section of Business Corporation Law pertaining to the rights of dissenting shareholders. Further, he states that the parties and the appraiser agreed that the net asset value method should be implemented in determining the value of decedent’s shares. He claims that the net asset value must take into consideration the value of the contingent fees generated from cases not yet settled or reduced to judgment at the time of his death. In support of this proposition, executor attempts to distinguish this court’s decision in Beasley v. Beasley, 359 Pa.Super. 20, 518 A.2d 545 (1986), which held that contingent fees could not be considered when determining the present value or good will of a law firm for the purposes of equitable distribution. SLW then asks us to examine the Estate of Curry, 74 T.C. 540 (1980), in which the tax court assigned a value to contingent fee cases, which had not yet been reduced to settlement or judgment, in determining the gross estate of a decedent. Executor concedes that the valuation of the referred cases which are subject to contingent fee arrangements is a difficult task, but believes that the estate should not be deprived of the fair value of decedent’s shares because of that difficulty.

SLW, on the other hand, argues that the contingent fee cases referred to Sikov and Love had no determinable value on the date of decedent’s death and therefore can only be valued at the time of settlement or judgment. SLW states that executor produced no evidence of the value of these cases as of September 3, 1984, but produced evidence only of the amount of the settlements, judgments or the monies received by SLW subsequent to decedent’s death. SLW contends that the value of a case a year or two after decedent’s death is irrelevant to the valuation of decedent’s stock as of the date of his death. Moreover, SLW finds the Beasley case to be instructive on the issue before us and the decision in Curry to be distinguishable and irrelevant.

In addressing the propriety of including the value of the contingent fee cases referred to Sikov and Love in the valuation of decedent’s shares, we point out that both parties and the appraiser agreed that the net asset valuation method should be implemented in this case. We emphasize this in order to make it clear that the choice of valuation methods is not in dispute. What is disputed is whether contingent fee cases referred to Sikov and Love prior to the date of decedent’s death, should be included in the valuation of decedent’s shares as of the date of his death when as of that date these cases had not been settled or reduced to judgment, and no fees had been collected by SLW. We agree with the appraiser that the fees were not net assets of the corporation as of September 3, 1984, the date of decedent’s death, and find that they were properly excluded from the valuation.

It appears that this is an issue of first impression in this Commonwealth and as such we look to existing case law for guidance. We believe that the Beasley case is instructive on the nature of contingent fees, notwithstanding the fact that the court in Beasley discussed contingent fees in the context of equitable distribution principles. One issue the court in Beasley addressed was whether the contingent fee cases of the husband’s legal practice which were not yet settled or tried had a present value so as to constitute assets of that legal practice.

The court stated the following:

It is tenuous and risky to attempt to evaluate the likely return on contingent fees and as such, no value can be placed on them for purposes of equitable distribution. However, the Divorce Code is flexible and in this respect, the income producing capacity reflected by such cases can be estimated on the basis of compensation for completed cases and, therefore, that record should be sufficient to project the earning capacity of the attorney without speculating on the nebulous return that might be derived from examining active contingent fee cases. Permanent alimony, as support, is modifiable, and should the expectations vary either upward or downward, adjustments can be made by the court in an expeditious and reasonable manner.
Contingent fees, while having a degree of similarity to pensions, do not have the same expectation of vesting which permits greater certainty in fixing value and for establishing present worth. Of course, in those cases wherein the professional is paid for service performed, a clear appraisal of the value of uncompensated work in progress can be made upon which a determination of marital property and division of that property can be based. This can be ascertained through bookkeeping records, which do not involve the evaluation of confidential files.

Beasley, 359 Pa.Super. at 39, 41, 518 A.2d at 554-555. The very nature of contingent fees is their uncertainty of return and consequently we believe that they have no place in the valuation of SLW as of September 3, 1984. The court in DeMasi v. DeMasi, 366 Pa.Super. 19, 530 A.2d 871 allocatur denied 517 Pa. 631, 539 A.2d 811 (1987) stated “before collection, no value can be assigned to the attorney’s work as payment of the fee is uncertain.” Id., 366 Pa.Superior Ct. at 41, 530 A.2d at 881.

Moreover, the appraiser in the present case does not have the flexibility, provided by the Divorce Code, to estimate the value of the contingent fee cases on the basis of compensation received from other similar completed cases and then adjust his estimation should the actual compensation received vary substantially. Beasley, 359 Pa.Super. at 39, 518 A.2d at 554. Here, the valuation must be made as of the date of decedent’s death. Any valuation of these cases as of that date would involve pure speculation. These are not the type of cases where fees are fixed based upon the services to be rendered, whereby an appraisal can be made establishing the value to the time of distribution as a recoverable asset. Id.

Finally, we note that Leonard A. Storch, C.A., a witness called by SLW testified that SLW utilized a cash basis method of accounting. He stated the balance sheets he had prepared for SLW did reflect any accounts receivable, that is, monies due. Further, he noted that he never had any discussion with the members of SLW about monies due and “[did not] know for a fact that there was an accounts receivable.” The appraiser’s recommendation to exclude the uncollected fees from his valuation is consistent with Storch’s testimony on the accounting procedures utilized by SLW. Based on the foregoing discussion, we agree with the appraiser’s recommendation to exclude the referral cases from the valuation of SLW as of September 3, 1984.

We now turn to the issues raised by SLW. In their first argument, SLW contends that the trial court erred in adopting the appraiser’s valuation because the valuation was not made as of the date of decedent’s death, Sept. 3, 1984. In reviewing such a claim our standard of review is whether the recommendation made by the appraiser “was supported by competent and substantial evidence; ‘substantial evidence is more than a scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” In re Watt & Shand, Appeal of O’Conner, 444 Pa. 206, 283 A.2d 279, 280 (1971) (citing Davis, Administrative Law Treatise, Vol. 4 at 118 (1958)); see also In re Jones & Laughlin Steel Corp., 328 Pa.Super. 442, 477 A.2d 527 (1985).

We find that the appraiser’s numerous references to September 3, 1984 as the valuation date, together with his adjustment of the December 31, 1984 value of SLW to reflect the value of the corporation as of September 3,1984, illustrates that he did use the proper valuation date. The appraiser stated:

It is undisputed that certain accounts on hand as of September 4, 1984 are assets of the defendant corporation. The evidence revealed that there was $19,200.00 in a money market account and $4,625.18 in the firm checking account as of that date. Defendants also place a value of $3,270.00 on furniture and supplies which plaintiff asserts is higher. There is no evidence as to the liabilities of the corporation on September 4, 1984.

The defendants called Leonard A. Storch, C.A., accountant for the professional corporation as a witness. He had been the accountant for the corporation prior to 1984, as well as at the time of the death of the decedent, and still was at the time of hearing.

Mr. Storch reviewed in detail the balance sheets of the corporation. He stated, inasmuch as the corporation was on a cash basis, that no value could be given to matters which were pending, to work in progress, or to accounts receivable but not paid. He testified extensively from Exhibit 26, which was the balance sheet of the corporation for 1983, from Exhibit 27, which was the balance sheet for the corporation for 1984, as well as from Exhibits S and R, the corporation’s Pennsylvania Corporate Stock Tax Reports for the years 1983 and 1984 respectively. The accountant testified that each of these documents reflected the value of the then issued and outstanding shares of stock in the professional corporation as of December 31st of each year. These documents, after correction of an error, reflected that the total value of the issued and outstanding thirty (30) shares of stock as of December 31, 1984 was in the amount of $52,751.00, or the sum of $1,758.36 per share. This consisted, as of December 31, 1984, of the following:

(1) Retained Earnings $49,751.00

(2) Issued and outstanding stock (30 shares at $100.00 per

value each) $ 3,000.00

$52,751.00

Mr. Storch then went on to testify that the book value and net asset value of this professional corporation were the same. No value was ever given to work in progress or to accounts receivable inasmuch as this corporation worked and reported on a cash basis only.

Based upon our review of the appraiser’s report and the record, we conclude that he did value decedent’s shares as of September 3, 1984.

Moreover, we dismiss SLW’s argument that the appraiser erroneously relied upon financial documents relating to the December 31 value notwithstanding the evidence regarding the value of the assets of SLW as of September 3,1984. The appraiser noted in a footnote to his report that neither party presented a financial statement of SLW for the period ending August 31, 1984, and that the evidence presented of the corporate accounts as of September 3,1984 did not contain sufficient facts from which a net asset value could be calculated. Our review of the record reveals that the appraiser’s determination to use the financial documents for the year ending December 31, 1983, was supported by competent and substantial evidence.

Finally, we find that the appraiser’s addition of $53,-420.00, the amount representing the bonuses paid to Sikov and Woncheck in December of 1984, to its determination of the net asset valuation of SLW as of the year ending in 1984, was supported by substantial and competent evidence.

The appraiser stated:

There was also testimony that it was the practice of defendant corporation to pay bonuses to its employees in December of each year. This practice was followed on December 31,1984 when total bonuses were authorized in the amount of $53,420.00 (Exhibit P). Attorney Won-check received a bonus of $45,000.00 in December 1984, and the remaining bonus amounts were paid to office personnel. Neither Henry Lamparski nor his estate received a bonus payment in 1984. These payments necessarily reduced the total value of stock shares on December 31, 1984, by reducing retained earnings.

Appraiser believed that the monies paid to Sikov and Woncheck following decedent’s death were reflected in the financial statements of SLW dated December 31, 1984, and thus depleted the value of decedent’s shares, as of September 3, 1984.

Based upon the foregoing discussion, we affirm the order of the trial court.

      . The appeals have been consolidated at No. 465 Pittsburgh 1988. For purposes of Pa.R.A.P. 2136, SLW has been designated as appellee.

      . A review of the record reveals that in the complaint, SLW, Sikov, and Woncheck were named as defendants. However, some of the documents included in the record, for example, the notice of appeal and the full caption on the official docket sheet, contain captions which name only SLW as a defendant.

      . The appraiser noted that both parties agreed that the net asset method of valuation should be implemented to determine the value of the shares.

      . Each item in decedent’s estate must be valued as of the date of decedent’s death. 72 Pa.C.S. § 1721(a).

      . 15 Pa.S. § 2911(c) states:
      (c) if the corporation shall not otherwise have the right to acquire all the shares of a shareholder who becomes a disqualified person or of a deceased shareholder, the corporation shall nevertheless have an option to acquire such shares, subject to the provisions of subsection (b) of this section, at a price which is agreed upon by the parties, or if no agreement is reached then at the fair value as determined by the court of common pleas of the county in which the registered office of the corporation is located. In order to determine fair value, the court may appoint an appraiser to receive evidence and report to the court his findings and recommendations as to fair value. The appraiser shall have such powers and shall proceed, so far as applicable, in the same manner as appraisers appointed under section 515 of the Business Corporation Law.

      . Recently, in In re Glosser Brothers, Inc., 382 Pa.Super. 177, 555 A.2d 129 (1989), a panel of this court approved of the Weinberger v. UOP, Inc., 457 A.2d 701 (Del.1983) approach to valuation. In Glosser, our court addressed the issue of whether it was erroneous for the trial court to refuse to assign any weight to market value of the stock in its valuation of stock under 15 Pa.S. § 1515, and held that the trial court erred by totally disregarding the market value because it had some relevance. The Weinberger approach allows courts to use a more liberal approach to valuation and requires that they consider any generally acceptable valuation methods in their appraisal of the fair value of the stock. Because the choice of valuation method is not in dispute, our approval in Glosser of the Weinberger method of valuation is not relevant to this case.

      . Although decedent died on September 3, 1984, appraiser occasionally refers to September 4, 1984 as the date of death because September 3 was Labor Day.


author: WIEAND, Judge:

text:
    559 A.2d 550
    Bonnie B. LIRA and Jose Lira, h/w v. ALBERT EINSTEIN MEDICAL CENTER. Appeal of Jose LIRA in his own Right and as Administrator of the Estate of Bonnie B. Lira. Bonnie B. LIRA and Jose Lira, h/w v. Gary PEARLSTEIN, M.D. Appeal of Jose LIRA. Bonnie B. LIRA and Jose Lira, h/w, Appellees, v. Gary PEARLSTEIN, M.D., Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 11, 1989.
    Filed May 25, 1989.

      Jayne A. Piarulli, Philadelphia, for appellant (at Nos. 2090 and 2091) and appellee (at No. 2338).
    Charles A. Fitzpatrick, III, Philadelphia, for appellee (at Nos. 2090 and 2091) and appellant (at No. 2338).
    Before CAVANAUGH, WIEAND and MELINSON, JJ.
   WIEAND, Judge:

In this medical malpractice action, the trial court awarded a new trial on motion of the defendant-health care providers because of an erroneous evidentiary ruling which permitted a witness to testify that when the plaintiff-patient was examined by a non-testifying physician, the physician asked, “Who’s the butcher who [did] this?” On appeal, the plaintiffs argue that the physician’s declaration was properly received and did not warrant a new trial. In a cross-appeal, the defendant-health care providers argue that the trial court should have entered a judgment n.o.v. in their favor. We affirm the order awarding a new trial.

In January, 1981, Bonnie Lira, a young homemaker and professional singer, was admitted to the Albert Einstein Medical Center (AEMC) with complaints of abdominal pain. Exploratory surgery was performed, and Lira was diagnosed as having Crohn’s disease, an acute gastrointestinal illness. During this hospital stay, which lasted approximately a month, a nasogastric tube was inserted through Mrs. Lira’s nose to suction fluids from her stomach, and two surgical procedures were performed by which the patient was intubated with endotracheal tubes.

On May 13, 1981, Mrs. Lira was taken to the emergency room at AEMC because of diarrhea, abdominal pain, and distension. Dr. Stanton Carroll was on duty at that time and was assisted by Dr. Gary Pearlstein, a surgical resident. Pearlstein inserted a nasogastric tube into the patient’s throat via the right nostril in order to make use of a suction machine. Mrs. Lira testified in a deposition that she felt the tube become stuck in the area of her Adam’s Apple while it was being inserted and that she then experienced a jabbing, cutting pain. By the time the insertion had been completed she began spitting up blood and experienced severe pain. The tube remained in place until Mrs. Lira was discharged, following which she continued to experience pain and discomfort of the throat. Early in 1982, she suffered respiratory distress, and an emergency tracheotomy was performed. She remained dependent upon her tracheotomy tube until she died three and a half years later.

During her lifetime, Mrs. Lira and her husband, Jose, commenced actions against AEMC, Dr. Carroll, Dr. Pearl-stein and several other physicians. Ultimately, however, the other physicians were removed as party defendants, and the consolidated action went to trial against AEMC and Drs. Carroll and Pearlstein. The trial court directed a verdict in favor of Dr. Carroll, and the jury returned a verdict against AEMC and Dr. Pearlstein in favor of Bonnie Lira (deceased) for $150,000.00 and in favor of Jose Lira, her husband, for loss of consortium in the amount of $125,000.00.

A judgment n.o.v. may be entered only in a clear case where the facts are such that no two reasonable persons can fail to agree that the verdict is improper. Fleck v. Durawood, Inc., 365 Pa.Super. 123, 127, 529 A.2d 3, 5 (1987); Northwest Savings Ass’n. v. Distler, 354 Pa.Super. 187, 191, 511 A.2d 824, 825 (1986). In ruling upon a defendant’s motion for judgment n.o.v., the trial court is required to consider the evidence, as well as all reasonable inferences which may be drawn therefrom, in the light most favorable to the plaintiff who won the verdict. Vernon v. Stash, 367 Pa.Super. 36, 45-46, 532 A.2d 441, 445-446 (1987), quoting Maravich v. Aetna Life & Casualty Co., 350 Pa.Super. 392, 396, 504 A.2d 896, 898 (1986) and Kearns v. Clark, 343 Pa.Super. 30, 34-35, 493 A.2d 1358, 1360 (1985). In determining whether the evidence is sufficient to support the verdict, a reviewing court must consider all the evidence received, whether the trial court’s evidentiary rulings thereon were correct or incorrect. See: Niles v. Fall Creek Hunting Club, Inc., 376 Pa.Super. 260, 265, 545 A.2d 926, 929 (1988); Dorn v. Stanhope Steel, Inc., 368 Pa.Super. 557, 565, 534 A.2d 798, 802 (1987).

To establish a case of professional negligence, the plaintiffs were required to show that the professional conduct of Dr. Pearlstein fell below the standards of reasonable medical practice and that Mrs. Lira’s injuries were caused by the failure to adhere to such standards. Brannan v. Lankenau Hospital, 490 Pa. 588, 595, 417 A.2d 196, 199 (1980); Corbett v. Weisband, 380 Pa.Super. 292, 551 A.2d 1059, 1064 (1988). As a general rule, expert testimony is required to establish the standard of reasonable medical care. Brannan v. Lankenau Hospital, supra 490 Pa. at 595-596, 417 A.2d at 199-200; Brophy v. Brizuela, 358 Pa.Super. 400, 405, 517 A.2d 1293, 1296 (1986). The standard by which an expert witness is qualified is a liberal one. “If a witness has any reasonable pretension to specialized knowledge on the subject under investigation he may testify, and the weight to be given to his [testimony] is for the jury.” Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 338, 319 A.2d 914, 924 (1974); Vernon v. Stash, supra, 367 Pa.Superior Ct. at 51, 532 A.2d at 448. The admission of expert testimony is a matter which rests largely in the discretion of the trial court, and its ruling thereon will not be reversed absent an abuse of discretion. Pirches v. General Accident Insurance Co., 354 Pa.Super. 303, 307, 511 A.2d 1349, 1351 (1986). Moreover, there is an exception to the general rule requiring expert testimony where the matter is so simple and the lack of skill so obvious as to be within the comprehension of non-professional persons. See: Brannan v. Lankenau Hospital, supra 490 Pa. at 598, 417 A.2d at 201; Chandler v. Cook, 438 Pa. 447, 451 n. 1, 265 A.2d 794, 796 n. 1 (1970).

In this case, Dr. Maurice Romy testified as plaintiffs’ expert. He explained that forcing the tube into the patient’s trachea while attempting to insert it into the esophagus had caused a traumatic “dislocation of the, what we call the arytenoid cartilage, and swelling and laceration of the vocal cord.” This, he said, was “likely to happen if an NG tube is placed in a traumatic fashion.” In his opinion, Mrs. Lira had “received medical care falling below the standard ... expected ... in [the] medical community.” He had personally examined Mrs. Lira’s throat and had also examined her hospital records, as well as the deposition testimony which she gave prior to death. Mrs. Lira had testified as follows:

When he got to my throat, it got stuck and he was hurting me, and I felt him jabbing with the plastic. And it was hurting until he finally pushed it through and then I coughed up blood.

The testimony of Mrs. Lira and Dr. Romy was sufficient to establish that it was professional negligence by Dr. Pearl-stein which had caused the wife-plaintiffs injury. The trial court properly denied defendants’ motion for judgment n.o.v.

Appellants argue, however, that Dr. Romy was not an otolaryngologist and, therefore, should not have been permitted to testify. We disagree. Romy was a licensed physician who was board certified in neurology. He had also had several months’ training in otolaryngology, the specialty dealing with the larynx and trachea. Dr. Romy had initially examined Mrs. Lira for the purpose of determining whether there was a neurological basis for her throat problem. He had ruled this out and concluded that the problem was associated with the traumatic forcing of the nasogastric tube into the patient’s trachea. The trial court determined that Romy had sufficient skill, knowledge, and experience and that his opinion would aid the jury in its search for truth. See: McDaniel v. Merck, Sharp & Dohme, 367 Pa.Super. 600, 608, 533 A.2d 436, 440 (1987); Dambacher v. Mallis, 336 Pa.Super. 22, 35-36, 485 A.2d 408, 415 (1984). We find in the trial court’s ruling no abuse of discretion. Experts in one area of medicine may be found qualified to address other areas of specialization where the specialties overlap in practice or where the specialist has had experience in a related field of medicine. McDaniel v. Merck, Sharp & Dohme, supra 367 Pa.Super. at 612, 533 A.2d at 442. See: Kearns v. Clark, supra; Ragan v. Steen, 229 Pa.Super. 515, 331 A.2d 724 (1974).

When Jose Lira was called as a witness, he testified as follows:

[MR. LIRA]: I remember the day I take my wife to see [Dr. Silberman], and we wait like everybody else; and as our turn to sit there and see what’s wrong, he put my wife in the chair—
[PLAINTIFF’S COUNSEL]: Were you in the room with your wife with the doctor?
[MR. LIRA]: I was with my wife in the room, yes, I was. [PLAINTIFF’S COUNSEL]: And tell us what you observed.
[MR. LIRA]: My wife was following the instructions from the doctor, open your mouth, and the doctor is looking inside with some kind of instruments and lights, and he said: Who’s the butcher who do this!
[DEFENSE COUNSEL]: Objection, Your Honor. In fact, I move for a mistrial with that statement, Your Honor.
THE COURT: Overruled.

Dr. Silberman was not present in court and did not testify. During closing argument to the jury, plaintiff’s counsel referred to Lira’s testimony, saying: “You will remember that Dr. Silberman examined her throat and asked Bonnie Lira, ‘Who butchered you?’ ” A defense objection to the argument by plaintiff’s counsel was sustained, and the jury was told that the testimony “was not proper testimony for you to consider.” A motion for mistrial, however, was denied. In response to a defense motion for new trial, the trial court, with commendable candor, determined that its evidentiary ruling had been erroneous and, despite the subsequent sustaining of a defense objection to a reference to the testimony by plaintiff’s counsel, may have contributed to the verdict. Therefore, a new trial was awarded. Plaintiffs argue on appeal that the physician’s declaration was admissible as an excited utterance or present sense impression exception to the hearsay rule. We disagree.

Dr. Silberman’s statement was clearly hearsay. It was an extrajudicial statement offered to prove the truth of the matter asserted, i.e., that Mrs. Lira had been “butchered.” See: Hreha v. Benscoter, 381 Pa.Super. 556, 565, 554 A.2d 525, 528 (1989); Spotts v. Reidell, 345 Pa.Super. 37, 42, 497 A.2d 630, 633 (1985); Commonwealth v. Cassidy, 315 Pa. Super. 429, 433, 462 A.2d 270, 272 (1983). Hearsay evidence is inadmissible unless it falls within a recognized exception to the exclusionary rule. Kemp v. Qualls, 326 Pa.Super. 319, 327, 473 A.2d 1369, 1373 (1984). See also: Niles v. Fall Creek Hunting Club, Inc., supra 376 Pa.Super. at 273, 545 A.2d at 933. Even if it falls within an exception to the rule, however, hearsay evidence may not be received unless it is relevant and not excluded under another rule of evidence.

Appellants contend that Dr. Silberman’s declaration was admissible under the “res gestae” exception. More specifically, they argue that it was admissible as an excited utterance or a present sense impression. An excited utterance is a spontaneous declaration by a person whose mind has been suddenly made subject to an overpowering emotion caused by some unexpected and shocking occurrence. Allen v. Mack, 345 Pa. 407, 410, 28 A.2d 783, 784 (1942). When Dr. Silberman, an ear, nose and throat specialist, examined a patient who was complaining of a sore throat and difficulty in breathing, it cannot be said that his discovery of a throat abnormality was a shocking occurrence causing the specialist to be overcome with emotion. See: Reichman v. Wallach, 306 Pa.Super. 177, 194, 452 A.2d 501, 510 (1982) (“In view of the fact that the declarant was a physician and the supervisor of the hospital recovery room, one searches in vain for the ingredients of an ‘excited utterance.’ ”). Dr. Silberman’s declaration in this case simply was not an excited utterance.

Similarly, Dr. Silberman’s extrajudicial declaration was not admissible as a present sense impression.

Under this exception the necessity for the presence of a startling occurrence or accident to serve as a source of reliability is not required. The truthfulness of the utterance is dependent upon its spontaneity. It must be certain from the circumstances that the utterance is a reflex product of immediate sensual impressions, unaided by retrospective mental processes. Restated, the utterance must be “instinctive, rather than deliberate.”

Commonwealth v. Farquharson, 467 Pa. 50, 68, 354 A.2d 545, 554 (1976), citing Commonwealth v. Coleman, 458 Pa. 112, 117, 326 A.2d 387, 389 (1974). See also: McCormick on Evidence, § 298 (3d ed.1984). Here, the evidence failed to establish that the declaration of Dr. Silberman, a throat specialist, was “instinctive, rather than deliberative — in short, the reflex product of immediate sensual impressions, unaided by retrospective mental action.” Commonwealth v. Coleman, supra. See: Reichman v. Wallach, supra 306 Pa.Super. at 194-195, 452 A.2d at 510. It was, rather, an expression of opinion based on medical training and experience.

To permit a physician’s extrajudicial statement of medical opinion, made upon examination of a patient, to be received in evidence as an excited utterance or under the present sense impression exception to the hearsay rule would run afoul not only of the hearsay exclusion but also of the rule which holds that expressions of medical opinion are generally inadmissible unless the physician expressing the opinion is available for cross-examination. See: Commonwealth v. DiGiacomo, 463 Pa. 449, 345 A.2d 605 (1975). In Ganster v. Western Pennsylvania Water Co., 349 Pa. Super. 561, 504 A.2d 186 (1985), the Superior Court said, in holding that the business records exception to the hearsay rule did not encompass opinion testimony:

“Cross-examination,” it has been said, “is a vital and fundamental part of a fair trial.” Commonwealth v. Shirey, 333 Pa.Super. 85, 151, 481 A.2d 1314, 1350 (1984). Although the right of cross-examination is not absolute and although hearsay evidence may be received upon proof of exceptional circumstances, including factual evidence received under the business records in evidence exception (Commonwealth v. Scatena, 332 Pa.Super. 415, 438, 481 A.2d 855, 867 (1984) [rev’d, 508 Pa. 512, 498 A.2d 1314 (1985) ]), cross-examination is particularly important where it is the only means for testing the reliability of an opinion regarding disputed facts.

Id. 349 Pa.Super. at 573, 504 A.2d at 192.

Finally, we reject plaintiffs’ contention that defendants waived the right to argue this issue post-trial. Defendants objected and moved for a mistrial when Jose Lira testified to Dr. Silberman’s exclamation. The objection and mistrial were overruled. They objected again and moved for a mistrial when plaintiff’s counsel referred to the evidence during closing argument to the jury. Thus, they objected and moved for a mistrial on every occasion when the improper declaration by Dr. Silberman was mentioned in the presence of the jury. The trial court, although giving a cautionary instruction on the occasion of the second objection, realized that it had given conflicting signals on this issue and that the jury had heard incompetent and prejudicial evidence. Because this incompetent evidence may have influenced the jury’s decision, the court determined that a new trial was necessary. We find neither error of law nor abuse of discretion in the trial court’s decision.

Affirmed.

      . Bonnie Lira died prior to trial because of complications from Crohn’s disease. Her deposition was used at trial.