text:
    636 A.2d 1179
    Grace and Daniel TROXEL, Administrators of the Estate of Trevor Troxel, Deceased v. A.I. duPONT INSTITUTE, Ches-Penn Health Services, Inc. and Kevin Browngoehl, M.D. Appeal of: Kevin BROWNGOEHL, M.D. Grace and Daniel TROXEL, Administrators of the Estate of Trevor Robert Troxel, Deceased, Appellants, v. A.I. duPONT INSTITUTE, Ches-Penn Health Services, Inc. and Kevin Browngoehl, M.D., Appellees, Grace and Daniel TROXEL, Administrators of the Estate of Trevor Troxel, Deceased v. A.I. duPONT INSTITUTE, Ches-Penn Health Services, Inc. and Kevin Browngoehl, M.D. Appeal of CHES-PENN HEALTH SERVICES, INC.
    Superior Court of Pennsylvania.
    Argued Nov. 9, 1993.
    Filed Feb. 4, 1994.

      Joseph H. Foster, Philadelphia, for Browngoehl.
    Nancy L. Goldstein, Philadelphia, for Troxel.
    Fred A. Greenberg, Media, for A.I. duPont Institute.
    John L. Aris, Philadelphia, for Ches-Penn Health Services, Inc.
    Before WIEAND, OLSZEWSKI and POPOVICH, JJ.
   WIEAND, Judge:

In this medical malpractice action against Pennsylvania and Delaware health care providers, the trial court entered summary judgment in favor of A.I. duPont Institute, a Delaware hospital. The plaintiffs and the Pennsylvania health care providers have appealed. After careful review of the complex issues in this appeal, we affirm.

On October 30, 1987, Mary Siple, a non-party, gave birth to a female child, Ashley. Because Ashley was born with microcephaly and a pes cavus deformity of the leg, she was taken for treatment to Ches-Penn Health Services, Inc., a Pennsylvania medical services center, where she was examined by Dr. Kevin Browngoehl, a Pennsylvania physician. Dr. Browngoehl suspected that Ashley was suffering from cytomegalovirus (CMV) and referred her to duPont for additional tests. At duPont, Ashley was seen by Dr. Borkowski, a Delaware neurologist. The tests conducted at duPont, under Dr. Borkowski’s supervision, confirmed a diagnosis of CMV. In the meantime, Ches-Penn discovered that Ashley’s mother, Mary Siple, was also suffering from CMV.

Grace Troxel was a long time Mend of Mary Siple, and, in November, 1987, she became pregnant. During her pregnancy she frequently visited Mary Siple and often assisted in feeding and bathing Ashley and in changing her diapers. In May, 1988, Mary Siple learned, allegedly for the first time, that CMV was contagious and posed a special danger to pregnant women. By this time, Grace Troxel had entered the third trimester of her pregnancy and was already infected with CMV. On August 19, 1988, she gave birth to a son, Trevor. Unfortunately, Trevor had acquired CMV from his mother in útero and died from the disease on November 17, 1988.

Grace and Daniel Troxel filed wrongful death and survival actions on behalf of their deceased son and also for the infection of Grace Troxel with CMV. They named as defendants duPont and Ches-Penn, which subsequently joined Dr. Browngoehl as an additional defendant. The essence of plaintiffs’ claim was that defendants had failed to inform Mary Siple of the contagious nature of CMV and of the risk to pregnant women who might come into contact with her infant. Dr. Browngoehl filed a cross-claim against the remaining defendants pursuant to Pa.R.C.P. 2252(d).

In determining whether it is the substantive law of Pennsylvania or the substantive law of Delaware which is applicable, we apply Pennsylvania conflict of laws principles. In Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964), the Supreme Court abandoned the rule of lex loci delicti, which had applied the law of the place where the tort was committed, and adopted a methodology which is a combination of the “government interest'-’ analysis and the “significant relationship” approach of Section 145 of the Restatement (Second) of Conflicts. See: Normann v. Johns-Manville Corp., 406 Pa.Super. 103, 108, 593 A.2d 890, 893 (1991), allocatur denied, 530 Pa. 645, 607 A.2d 255 (1992); Giovanetti v. Johns-Manville Corp., 372 Pa.Super. 431, 436, 539 A.2d 871, 873 (1988); Lacey v. Cessna Aircraft Co., 932 F.2d 170, 187 (3rd Cir.1991). This more flexible rule allows the courts to conduct an “analysis of the policies and interests underlying the particular issue before the court.” Griffith v. United Air Lines, Inc., supra, 416 Pa. at 21, 203 A.2d at 805. See also: Miller v. Gay, 323 Pa.Super. 466, 470, 470 A.2d 1353, 1354-1355 (1983).

In determining which state has the greater interest in the application of its law, one method is to see what contacts each state has with the accident, the contacts being relevant only if they relate to the “policies and interests underlying the particular issue before the court.” Griffith, supra 416 Pa. at 21, 203 A.[2d] at 805. When doing this it must be remembered that a mere counting of contacts is not what is involved. The weight of a particular state’s contacts must be measured on a qualitative rather than quantitative scale. Tooker v. Lopez, 24 N.Y.2d 569, 576, 301 N.Y.S.2d 519, 524, 249 N.E.2d 394, 398 (1969).

Cipolla v. Shaposka, 439 Pa. 563, 565, 267 A.2d 854, 856 (1970). The relevant inquiry, therefore, is not the number of contacts each litigant has had with a state. Instead, a court must evaluate “the extent to which one state rather than another has demonstrated, by reason of its policies and their connection and relevance to the matter in dispute, a priority of interest in the application of its rule of law.” Normann v. Johns-Manville Corp., supra, 406 Pa.Super. at 108, 593 A.2d at 893.

After careful review and study, we conclude that insofar as the instant claim is focused upon duPont because of services rendered to a Pennsylvania resident in Delaware by a Delaware health care provider, the State of Delaware has the greater interest in the application of its law. Although it must be conceded that Pennsylvania, in this case the forum state, has an interest in providing redress for wrongs committed against its citizens, here that interest is superseded by Delaware’s interest in regulating the delivery of health care services in Delaware. DuPont is a Delaware hospital, and Dr. Borkowski, who treated Ashley, is licensed to practice medicine in Delaware, not Pennsylvania. The patient, who was a resident of Pennsylvania, was taken to Delaware for treatment and was treated by duPont exclusively in Delaware. No services were rendered by duPont in Pennsylvania. The services rendered and the persons delivering those services in Delaware were regulated by the laws of Delaware, not the laws of Pennsylvania. In treating Ashley, therefore, the hospital was required to follow and abide by the laws of Delaware. As such, duPont and Dr. Borkowski were entitled to rely on the duties and protections provided by Delaware law. Pennsylvania law did not follow Ashley and her mother when they traveled to Delaware to obtain medical care. Any other rule would be wholly unreasonable, for it would require hospitals and physicians to be aware of and be bound by the laws of all states from which patients came to them for treatment. This is not the law.

In Levin by Levin v. Desert Palace, Inc., 318 Pa.Super. 606, 465 A.2d 1019 (1983), an action based on allegedly negligent omissions by a Nevada hotel which catered to large numbers of Pennsylvania residents, the Superior Court observed that the alleged omissions had occurred in Nevada and said:

Obviously, Pennsylvania has an important interest in protecting the welfare of its citizens. We conclude, however, that this interest is outweighed by Nevada’s interest in regulating the conduct and prescribing the liability of hotel owners within its jurisdiction. A hotel owner relies on the laws of the state in which the hotel is located to determine the standard of conduct required of him. It could not be expected that a hotel should comply with the laws of all the states of which its guests are citizens.

Id., 318 Pa.Super. at 610-611, 465 A.2d at 1021. See also: Kabo v. Summa Corp., 523 F.Supp. 1326 (E.D.Pa.1981).

In Blakesley v. Wolford, 789 F.2d 236 (3rd Cir.1986), a Pennsylvania resident had travelled to Texas to undergo surgery. When the patient was injured, allegedly as a result of the surgeon’s negligence, the court was required to determine whether Pennsylvania’s plaintiff friendly law or Texas’ defendant protecting law was applicable. Holding that the defendant could properly rely on Texas law, the Court said:

It is true, as the district court states, that “Pennsylvania has an interest in protecting its citizens who are injured by out of state physicians and surgeons who come to Pennsylvania to practice their profession, and in requiring those individuals to satisfy its standards of care and consent.” App. at 239-40. However, it does not follow, as the district court stated, that “Pennsylvania’s interest is just as strong when its residents travel to other states for surgical procedures prescribed by out of state surgeons during their visits to Pennsylvania.” App. 240.
While we may agree with the district court in the former instance, we cannot agree with the district court’s later conclusion that would have Pennsylvania law travel with Pennsylvania residents when they arrange to undergo surgical procedures in sister states.

Id. at 242 n. 11.

In Shuder v. McDonald’s Corp., 859 F.2d 266 (3rd Cir.1988), a Pennsylvania resident had fallen in the parking lot of a McDonald’s restaurant in Virginia. A verdict for plaintiff based on Pennsylvania law was reversed by the Third Circuit, which applied Virginia law. As to plaintiffs argument that Pennsylvania’s liberal laws were “more just,” the Court said:

We, however, cannot regard the alleged justness of Pennsylvania law as a valid reason for applying it. The relative liberality to plaintiffs of Pennsylvania law simply demonstrates that application of Pennsylvania law would further the policies of that state. This is a consideration quite separate from the contacts of Pennsylvania to the accident. Indeed, the Pennsylvania Courts have not hesitated to apply foreign over domestic law even though they thereby bar claims by their residents.

Id. at 272 (citation omitted). See also: Kunreuther v. Outboard Marine Corp., 715 F.Supp. 1304 (E.D.Pa.1989) (Jamaica has a stronger interest in determining the standards that govern boats in its territorial waters than Pennsylvania’s interest in protecting its citizens); Tonkon v. Denny’s, Inc., 650 F.Supp. 119 (E.D.Pa.1986) (Mexican law applicable to action by Pennsylvania resident who fell on sidewalk in Mexico); Kabo v. Summa Corp., supra (Because of Nevada’s greater interest in regulating its hotel industry, Nevada law applicable to action by Pennsylvania resident for loss of personal property in Nevada hotel).

Health care providers in Delaware are licensed and regulated by the State of Delaware and must comply with the laws of that state. This is not altered merely by the fact that a substantial number of its patients come from other states. Therefore, we reject appellants’ argument that Pennsylvania law is applicable either because duPont solicited patients from Pennsylvania or because it accepted referrals from Pennsylvania doctors. Mary Siple elected to travel with her infant child to the duPont children’s hospital in Delaware to obtain treatment for her child. This treatment was rendered entirely in Delaware. Under these circumstances, the qualitative contacts of Delaware were greater and more significant than those of Pennsylvania.

Appellants argue that Pennsylvania law should be applied because Grace Troxel may have contracted CMV following contacts with Ashley in Pennsylvania. We reject this argument. In Griffith v. United Air Lines, Inc., supra, the Court held that little significance attached to the “purely fortuitous” fact that the plane on which the decedent was riding happened to crash in Colorado. (It could have crashed in any state). Id., 416 Pa. at 23-24, 203 A.2d at 806. Here, too, the place where the wife-plaintiff came into contact with the infected child was merely fortuitous. Contacts between the child and third persons could have occurred in any number of jurisdictions. For all these reasons, therefore, we look to the law of Delaware to determine the duties and obligations owed by Delaware health care providers who render treatment to Pennsylvania residents in Delaware.

It follows that the decision of the Pennsylvania Supreme Court in DiMarco v. Lynch Homes-Chester County, 525 Pa. 558, 583 A.2d 422 (1990), even if factually similar- — it is not — is not controlling of our decision in this case. In DiMarco, the Supreme Court held that a physician could be held liable to a third person for incorrect advice given a patient regarding a communicable disease (hepatitis) when the physician knew of the patient’s sexual partner and should have foreseen that the third party would rely upon the physician’s advice to the patient. Id., 525 Pa. at 563-564, 583 A.2d at 425. The Court relied, in part, upon a Pennsylvania statutory requirement that hepatitis, as well as certain other communicable diseases, be reported to local and state boards of health. See: Crosby by Crosby v. Sultz, 405 Pa.Super. 527, 539, 592 A.2d 1337, 1343 (1991). The plaintiff’s infection, the Court held, was foreseeable in the event the physician’s patient was not properly instructed regarding the contagious nature of her malady. DiMarco v. Lynch Homes-Chester County, supra, 525 Pa. at 563-564, 583 A.2d at 425.

Neither counsel nor our own research has disclosed a decision of the highest court of Delaware which is on all fours with the facts of this case. In general, however, the liability of a physician or health care provider for malpractice is limited to those persons who are a part of the physician-patient relationship. See: Delaware Health Care Malpractice Insurance Litigation Act, 18 DehCode § 6801(7) and (8).

Delaware, it appears also, has followed the general principles set forth in the Restatement (Second) of Torts § 315. Pursuant thereto, “[tjhere is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless (a) a special relation exists between the actor and the third person ..., or (b) a special relation exists between the actor and the other....” Pursuant to section 319 of the Restatement (Second) of Torts, a special relationship exists where one “takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled----” In Naidu v. Laird, 539 A.2d 1064 (Del.Supr.1988), the Superior Court of Delaware found a special relationship between a psychiatrist and his patient which imposed an affirmative duty on the psychiatrist to persons other than his patient to exercise reasonable care in the treatment and discharge of a psychiatric patient. Id. at 1072. Therefore, the Court held, a jury could impose liability upon a psychiatrist who had negligently discharged the driver of a vehicle, who, while in a psychotic state, intentionally drove into plaintiffs husband and killed him.

A comparable relationship did not exist between duPont, on the one hand, and Mary Siple and her infant child, on the other. CMV is a common, but relatively harmless, disease. It becomes dangerous, in general, only if communicated to a pregnant woman who passes it along to the unborn child whom she is carrying. CMV is not a disease which, under Delaware Board of Health regulations for the control of communicable diseases, must be reported to county health officers. The relationship between doctor and patient, therefore, did not alone require duPont or its physician to take steps to prevent Mary Siple or her child from coming into contact with other persons. The transmission of ubiquitous diseases, such as influenza and CMV, may seriously compromise the health of special classes of persons, such as the elderly or the pregnant, but the treatment of such diseases does not impose liability upon the treating physician or health care provider in the event that the disease is communicated by the patient to a third person. The treatment of the disease does not impose a duty on the health care provider to protect any and all persons, known and unknown, from “catching” the disease from the patient.

Section 324A of the Restatement (Second) of Torts also cannot be made the basis for imposing liability on duPont under the circumstances of this case. This section of the Restatement is as follows:

§ 324A. Liability to Third Person for Negligent Performance of Undertaking
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 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 to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

Here, there has been neither averment nor evidence that wife-appellant or her child relied on services rendered or advice given by the hospital for their specific protection. Indeed, there is no basis for finding that Grace Troxel relied on any medical advice given to Mary Siple to guide her conduct toward Mary Siple and her child. Similarly, there is no basis for believing that duPont undertook to perform any duty owed by Mary Siple or her child to the wife-appellant or the child she was carrying. There was no physician-patient relationship between them. Finally, there is no basis for finding that duPont increased the risk of harm to appellant or her child. “At best, defendant’s conduct merely ‘permitted the continuation of an existing risk,’ an inadequate basis upon which to impose liability under section 324A(a).” Ricci v. Quality Bakers of America Co-op, Inc., 556 F.Supp. 716 (D.Del.1983) (applying Delaware law).

Here, the hospital did not give incorrect advice regarding the communicable nature of CMV. There is no evidence that the treatment of Ashley was other than of the highest quality. There also is no evidence or averment from which the hospital can be charged with notice of the persons who might touch or come into contact with the child. Under such circumstances, Delaware would not impose liability on the provider merely because the disease was communicated to a friend of Mary Siple and the friend’s child. Indeed, it is doubtful that the Pennsylvania courts would expand the holding in DiMarco v. Lynch Homes-Chester County, supra, to impose liability upon a provider under the circumstances of this case.

Affirmed.

      . Microcephaly describes a condition by which the patient suffers from an abnormally small head and/or brain. Schmidt, 2 Attorney’s Dictionary of Medicine M-123 (1993).

        . Pes cavus deformity, more commonly known as a club foot, is marked by an excessive curvature of the arch of the foot and by permanent abnormal elevation of the heel. Schmidt, 3 Attorney’s Dictionary of Medicine P-142 (1993).

      . CMV is a ubiquitous disease which is a member of the herpetoviruses group that causes an enlargement of the cells of various organs. In infants, it may result in jaundice, enlargement of the spleen and liver, thrombocytopenic purpura, and possibly mental retardation. The disease is spread by prolonged intimate contact with infected body fluids. Ausman and Snyder, 7 Medical Library — Lawyers Edition § 17:29 (1991).


source: Caselaw Access Project

author: WIEAND, Judge.

license: Public Domain

text:
    636 A.2d 1184

    COMMONWEALTH of Pennsylvania v. Maurice JONES, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 30, 1993.
    Filed Feb. 7, 1994.

      Bernard L. Siegel, Philadelphia, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Commonwealth, appellee.
    Before WIEAND, HUDOCK and MONTGOMERY, JJ.
   WIEAND, Judge.

Maurice Jones was tried non-jury and was found guilty of first degree murder, possession of an instrument of crime, abuse of a corpse, escape and resisting arrest. Post-trial motions were denied, and Jones was sentenced to life imprisonment for murder and to concurrent terms of imprisonment for possessing an instrument of crime and escape. Sentence was suspended on the convictions for abuse of a corpse and resisting arrest. On direct appeal from the judgment of sentence, Jones asserts that: (1) the evidence at his trial was insufficient to sustain a conviction of murder; and (2) his trial counsel provided ineffective assistance by failing to call character witnesses on his behalf. Because there is no merit in either of these contentions, we affirm the judgment of sentence.

In reviewing a challenge to the sufficiency of the evidence, an appellate court must determine “whether, viewing all the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offense[ ] charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.” Commonwealth v. Jackson, 506 Pa. 469, 472-473, 485 A.2d 1102, 1103 (1984). “This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt.” Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988), cert. denied, 493 U.S. 1093, 110 S.Ct. 1169, 107 L.Ed.2d 1072 (1990). However, “where a conviction is based entirely on circumstantial evidence, ‘the theme of guilt must flow from the facts and circumstances proved, and be consistent with them all.’ If the conviction is based wholly on ... suspicion and conjecture, it cannot stand.” Commonwealth v. Simpson, 436 Pa. 459, 464, 260 A.2d 751, 754 (1970), quoting Commonwealth v. Clinton, 391 Pa. 212, 218, 137 A.2d 463, 466 (1958). Nonetheless, the facts and circumstances established by the Commonwealth “need not be absolutely incompatible with [the] defendant’s innocence, but the question of any doubt is for the [trier of fact] unless the evidence ‘be so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances.’ ” Commonwealth v. Sullivan, 472 Pa. 129, 150, 371 A.2d 468, 478 (1977), quoting Commonwealth v. Libonati, 346 Pa. 504, 508, 31 A.2d 95, 97 (1943).

When the evidence in this case is viewed in the light most favorable to the Commonwealth, which won the verdict, the following facts appear. Appellant, also known as Kelsey Jones and “Dream,” was second in command of a cocaine distribution organization known as “Strictly Business.” The organization was run by the victim, Marcellus Griffin, who was known as “Marty” or “Polo,” and its other members included Gerald Butler (“Terminator X” or “Ex”) and Kevin Weeks (“Homicide”). All four members of “Strictly Business” resided at 7801 Williams Avenue in the Mount Airy section of Philadelphia. Testimony was that appellant and Griffin had been close friends and that Griffin had treated appellant like a little brother. Problems had developed, however, and the relationship had begun to sour. In fact, Griffin had planned to put appellant out of the organization because he was “messing up money”.

Some time in early April, 1989, Griffin disappeared. He was last seen by his sister, Valerie Ringgold, during the first week of April, 1989, and by his girlfriend, Theresita Outlaw, on April 6, 1989. Outlaw also said that she had talked with Griffin by phone on April 7, 1989, but had not heard from him thereafter. On April 10, 1989, at or about 2:00 a.m., Sherman Paige and his girlfriend, Sarah Davis, were driving past 7801 Williams Avenue when they observed appellant dragging a rolled-up rug, shaped like a human body, towards the driveway. When appellant saw them, he put his hands behind his back and looked towards the sky. Thinking this to be suspicious, Paige and Davis drove around the block, and upon their return saw that appellant was continuing to drag the rug. When appellant again saw them, he reacted as he had before, by folding his hands behind his back and looking skyward. A few days later, appellant came to Paige’s home and Paige asked him what he was doing with the body the other night. Appellant replied that it had not been a body, but that he had wrapped his trash to keep the dogs from getting into it.

After Griffin disappeared, appellant responded to inquiries about Griffin’s whereabouts by telling some people that Griffin was vacationing in Florida. Others he told that Griffin had gone to New York to raise money to pay a large debt. During this time, appellant was observed wearing Griffin’s clothing and jewelry, and he drove Griffin’s car, a blue Jetta, which Griffin had never allowed anyone else to drive. Appellant also assumed control of the drug business, telling Gerald Butler that Griffin had left him in charge while he was away. Visitors to the residence at 7801 Williams Avenue found the home to be in disarray. Griffin had always kept the house neat, but now it was a mess. Appellant was constantly spraying air freshener and burning incense in an attempt to hide an odor which witnesses described as being like spoiled meat. There was also testimony that appellant had obtained a false driver’s license which had his picture on it, but which contained Griffin’s name.

As appellant continued his efforts to hide Griffin’s whereabouts, others became suspicious. On May 5, 1989, Kevin Weeks removed the lock and entered Griffin’s bedroom. There he observed that a portion of the rug had been cut out and that there was a large stain on the wall which went from head level to the floor and appeared to be blood and pus mixed together. In the bathroom there were numerous ah' fresheners, and two fans were blowing air into the bedroom. Later, Weeks went into the garage and found what appeared to be a body wrapped in plastic trash bags, along with the rug from Griffin’s room and sheets from his bed. They were tied together with a plastic clothesline. There was a strong odor of rotting meat and there were flies hovering around the body. Upon making this discovery, Weeks contacted his mother and told her what he had found. Weeks also told Griffin’s sister, and, on May 13, 1989, the police were contacted. Griffin’s body was then found by police in the garage of 7801 Williams Avenue.

After the body was discovered, sixteen year old Andre Davis contacted appellant and told him that the police were at appellant’s house. Appellant replied that he had not killed Griffin, but that Jamaican drug dealers had killed him because Griffin owed them a large sum of money. Appellant also told Davis that he had attempted to dispose of the body by taking it to New Jersey to burn it, but had been unable to lift it into the trunk of the Jetta; and, therefore, he had put the body in the garage.

An autopsy was performed on Griffin’s body on May 14, 1989. The body was in an advanced state of decomposition and was covered with maggots and pupae cases. It was estimated that Griffin may have been dead for as long as five weeks. The cause of death was determined to be four gunshot wounds to the chest. Recovered from Griffin’s chest were four .22 caliber bullets. Appellant was known to carry a .22 caliber handgun.

Finally, there was evidence that appellant, after Griffin’s body had been discovered, went to great lengths to avoid being arrested. On May 13, 1989, he removed the license plate from the victim’s blue Jetta and put a car cover over it. When the police found him on May 14, 1989 and attempted to arrest him, appellant fled and thereby eluded capture. He was not located by police until November 3,1989, when he was arrested at 439 East Washington Lane. He tried to escape and cut his hands by attempting to exit through a second story window. The police, therefore, took him to a hospital for medical treatment; and, while there, appellant again escaped by pushing a police officer and fleeing the hospital in handcuffs. The following day, November 4, 1989, he was recaptured at the Richard Allen Housing Project. During a struggle with police, appellant was shot in the stomach as he attempted to gain possession of a policeman’s gun.

Although there were no eyewitnesses to the murder of Marcellus Griffin, the trial court found that appellant’s guilt had been established by overwhelming circumstantial evidence. Appellant argues, however, that the Commonwealth’s evidence proved only that he had known of the victim’s death and had capitalized on it, but not that he had committed the murder. There was no evidence, he contends, that he had participated in the murder, only that he had attempted to cover up the crime after the victim was already dead. This, appellant argues, is insufficient to sustain his conviction for murder.

We have reviewed carefully the evidence offered in this case and are satisfied that, although circumstantial, it was sufficient to permit the trial court to find, beyond a reasonable doubt, that appellant was criminally responsible for Griffin’s death. A motive for the killing was established by evidence that Griffin and appellant had been having a dispute and that Griffin contemplated the removal of appellant from the organization. There was also evidence that appellant had assumed control of the enterprise after Griffin’s disappearance and had taken possession of Griffin’s property. From this evidence, the fact finder could find that appellant had a motive for killing Griffin because his place in Griffin’s drug organization had no longer been secure and, with Griffin out of the way, appellant, as second in command, could take control of the organization. The evidence also disclosed that appellant had been known to carry a .22 caliber pistol, the type of gun used to kill Griffin. Thus, appellant had the means by which to carry out the killing.

The evidence at appellant’s trial was also sufficient to permit an inference that appellant had the opportunity to commit the murder, even though the date and time of the crime could not be established precisely because of the advanced state of decomposition of Griffin’s body. From the blood stains on the wall of Griffin’s bedroom and from appellant’s admission that he had used a portion of the rug to drag Griffin’s body from that room, a clear inference could be drawn that Griffin had been killed in his bedroom. Appellant lived in the same house and was Griffin’s second in command. Thus, the evidence showed logically that appellant would have had access to Griffin’s bedroom, and, as such, had the opportunity to kill Griffin. Certainly, appellant’s access to Griffin’s bedroom can more logically be inferred from the evidence than access by members of a rival Jamaican drug gang.

Finally, appellant’s actions following Griffin’s death indicate that he was conscious of guilt and took elaborate steps to avoid detection and apprehension. Appellant attempted to conceal the fact that Griffin was dead by telling friends and relatives of the victim that he had gone to New York or Miami. Appellant also tried to mask the odor caused by the victim’s decomposing body and hid the body by wrapping it in trash bags and moving it to the garage. Moreover, when the body was finally discovered, appellant fled and concealed his whereabouts from police. Upon being captured, he escaped from custody; and when re-apprehended, he resisted arrest and was shot during a struggle with police. All of these actions on appellant’s part, the trial court could find, combined with other circumstances surrounding the death of Marcellus Griffin to permit an inference of guilt. See: Commonwealth v. Manchas, 430 Pa.Super. 63, 70, 633 A.2d 618, 622 (1993); Commonwealth v. Pestinikas, 421 Pa.Super. 371, 387-388, 617 A.2d 1339, 1347-1348 (1992) (en banc). Appellant’s conviction for first degree murder, therefore, will not be disturbed.

“Because the law presumes that counsel is effective, the burden of establishing ineffectiveness rests with appellant.” Commonwealth v. House, 371 Pa.Super. 23, 28, 537 A.2d 361, 363 (1988). The standard used to evaluate claims of ineffective assistance of counsel has been stated by the Pennsylvania Supreme Court in the following manner:

The threshold inquiry in such claims is whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit; for counsel cannot be considered ineffective for failing to assert a meritless claim. Commonwealth v. Pursell, 508 Pa. 212, 495 A.2d 183 (1985). If this threshold is met, it must next be established that the particular course chosen by counsel had no reasonable basis designed to effectuate his client’s interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Finally, we require that the defendant establish how counsel’s commission or omission prejudiced him. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

Commonwealth v. Durst, 522 Pa. 2, 4-5, 559 A.2d 504, 505 (1989). “To establish prejudice under this standard ‘requires [a] showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.’ ” Commonwealth v. Carter, 409 Pa.Super. 184, 187-188, 597 A.2d 1156, 1157 (1991), quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). Moreover,

“( bjefore a claim of ineffectiveness can be sustained, it must be determined that, in light of all the alternatives available to counsel, the strategy actually employed was so unreasonable that no competent lawyer would have chosen it.” Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981). We inquire whether counsel made an informed choice, which at the time the decision was made reasonably could have been considered to advance and protect defendant’s interests. See Commonwealth v. Hill, 450 Pa. 477, 301 A.2d 587 (1973). Thus, counsel’s assistance is deemed constitutionally effective once we are able to conclude the particular course chosen by counsel had some reasonable basis designated to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349 (1967).

Commonwealth v. Dunbar, 503 Pa. 590, 596, 470 A.2d 74, 77 (1983).

Appellant argues that trial counsel was ineffective for failing to call at trial several character witnesses who would have testified to his reputation for being a non-violent person. At the hearing on his post-trial motions, appellant testified that he had informed counsel that the following persons would have been willing to testify as character witnesses on his behalf: Mary Jones, his mother; William Coleman, a friend; Mark Jones, another friend; Bobbi Reservich, a school counselor; and a woman named Erica, whose last name he did not know. On cross-examination, however, appellant admitted that all of his potential character witnesses were aware that he was selling drugs. Trial counsel, James Murray Lynn, Esquire, an experienced criminal lawyer, who has since been elevated to a seat on the Court of Common Pleas, testified that he had discussed with appellant the possibility of using character witnesses and, based upon his experience as an attorney, determined that appellant could not present a viable defense of good character. However, counsel was not able to recall the specific basis for his making this decision.

The failure to call character witnesses on behalf of a criminal defendant may, under some circumstances, be deemed ineffective assistance of counsel. See, e.g.: Common wealth v. Weiss, 530 Pa. 1, 606 A.2d 439 (1992); Commonwealth v. Gillespie, 423 Pa.Super. 128, 620 A.2d 1143 (1993); Commonwealth v. Glover, 422 Pa.Super. 543, 619 A.2d 1357 (1993). The Superior Court has explained:

A lawyer has a duty to “keep the accused fully informed of all options throughout the proceedings.” Commonwealth v. Saxton, 516 Pa. 196, 200, 532 A.2d 352, 354 (1987). Additionally, the failure by counsel “to investigate potentially meritorious defenses, and/or to interview witnesses whose testimony could prove beneficial and exculpatory to the defendant’s case, can constitute ineffective assistance of counsel if no reasonable basis otherwise exists for counsel’s failure.” Commonwealth v. Anderson, 501 Pa. 275, 287, 461 A.2d 208, 214 (1983). Therefore, a lawyer who fails to use character evidence on a defendant’s behalf can indeed be deemed constitutionally ineffective if there is no reasonable basis for such failure. See, e.g.: Commonwealth v. Simler, 320 Pa.Super. 342, 467 A.2d 355 (1983); Commonwealth v. Luther, 317 Pa.Super. 41, 463 A.2d 1073 (1983). However, “[a] decision by counsel not to take a particular action does not constitute ineffective assistance if that decision was reasonably based, and was not the result of sloth or ignorance of available alternatives.” Commonwealth v. Collins, 519 Pa. 58, 65, 545 A.2d 882, 886 (1988). “The decision not to present a particular defense is a tactical one and will not be deemed ineffective stewardship if there is a reasonable basis for that position.” Commonwealth v. Blair, 491 Pa. 499, 506, 421 A.2d 656, 660 (1980).

Commonwealth v. Mickens, 409 Pa.Super. 266, 279-280, 597 A.2d 1196, 1203 (1991). Thus, it is well settled that “ ‘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.’ ” Commonwealth v. Lee, 401 Pa.Super. 591, 600-601, 585 A.2d 1084, 1089 (1991), quoting Strickland v. Washington, supra, 466 U.S. at 690-691, 104 S.Ct. at 2068, 80 L.Ed.2d at 695.

In Commonwealth v. Peterkin, 511 Pa. 299, 513 A.2d 373 (1986), cert. denied, 479 U.S. 1070, 107 S.Ct. 962, 93 L.Ed.2d 1010 (1987), the Pennsylvania Supreme Court observed that “[ajlthough evidence of good character may not be rebutted by evidence of specific acts of misconduct, a character witness may be cross-examined regarding his knowledge of particular acts of misconduct by the defendant to test the accuracy of his testimony and the standard by which he measures reputation.” Id. at 318, 513 A.2d at 382-383. Thus, in the instant case, counsel may well have concluded that potential cross-examination of appellant’s character witnesses regarding the drug activity in which appellant was engaged offered dangers which outweighed the doubtful value of their testimony regarding appellant’s alleged reputation for non-violence. See: Commonwealth v. Peterkin, supra at 319, 513 A.2d at 383. Because the record discloses a reasonable basis for trial counsel’s decision not to present character evidence on appellant’s behalf, counsel will not be deemed ineffective.

The judgment of sentence is affirmed.

      . Jones was found not guilty of robbery.

      . None of the character witnesses identified by appellant testified at the post-trial evidentiary hearing.


author: McEWEN, Judge.

text:
    636 A.2d 1190
    In re TRUST ESTATE OF Ethel JAMISON, Settlor.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1993.
    Filed Feb. 7, 1994.

      Arthur L. Jenkins, Jr., Norristown, for appellant.
    Bernice J. Koplin, Philadelphia, for appellee.
    Before ROWLEY, President Judge, and McEWEN and KELLY, JJ.
   McEWEN, Judge.

This appeal has been taken from a final decree which dismissed the exceptions and objections to a ruling that the “Slayer’s Act” effected the forfeiture of the share of appellant to the trust of Ethel Jamison, settlor of the inter vivos trust which is the focus of the appeal. While the trial court undertook a perceptive expression of the basis for its decree of forfeiture, and while we affirm that final decree and conclude that appellant is not entitled to any share of the trust res, we rely upon a rationale which differs somewhat from that employed by the trial court.

The brief of appellant recounts in succinct and able fashion the factual and procedural history underlying this appeal:

On August 10, 1988, Bernice’s mother, Ethel Jamison (Ethel), created an irrevocable inter vivos trust (trust) and transferred all her property to her trustees named therein. Appellant is one of the trustees named and appellees are the two surviving co-trustees, William Jamison having died January 2, 1990. Under the terms of the trust, trustees were given discretion to use income and principal for the benefit of Ethel and Bernice’s sister, Leslie Jamison (Leslie), during their lifetimes, and upon the last to die of Ethel and Leslie, the trust terminated and the trustees were directed to pay the remaining trust principal in shares, Bernice’s share set forth as one-half. On July 30, 1991, Ethel died and thereafter, on the same day, Leslie committed suicide. Bernice pleaded guilty to third degree murder in the death of her mother.
The first and final account of trustees was filed by Floyd and Florence, and Bernice filed objections to the proposed distribution since Floyd and Florence did not propose that one-half of the remaining trust principal be distributed to her. Thereafter, the lower court filed its adjudication and memorandum opinion determining that in accordance with Sections 8802 and 8804 of the Probate, Estate & Fiduciaries Code (“Slayer’s Act”), the share for Bernice passed to her surviving issue because she was sentenced for the third degree murder of Ethel. Bernice filed exceptions to the adjudication and, after oral argument, the lower court en banc issued a final decree dismissing her exceptions, from which Bernice has filed this appeal.

Appellant urges this Court to vacate the decree, contending that the Chancellor committed an error of law in concluding that appellant’s share of the trust res passed to her issue since:

Ethel transferred her property to the trustees under the inter vivos trust dated August 10, 1988. She did not retain any interest in the trust property. When Ethel died, the trust did not terminate but continued for the life of Leslie. It was Leslie’s suicide which caused the trust to terminate and required the trustees to distribute the remaining principal. Thus, the Slayer’s Act does not apply to require a forfeiture of Bernice’s share of trust principal since she has not acquired property or received any benefit as a result of her mother’s death.

The statutory proscription of the Slayer’s Act is not a subject of dispute:

No slayer shall in any way acquire any property or receive any benefit as the result of the death of the decedent, but such property shall pass as provided in the sections following.

20 Pa.C.S. § 8802.

However, both of the parties, as well as the trial court, focused for disposition of the property upon Section 8804 of the Slayer’s Act:

Property which would have passed to or for the benefit of the slayer by devise or legacy from the decedent shall be distributed as if he had predeceased the decedent.

20 Pa.C.S. § 8804. We find this provision to be inapplicable to disposition of the property in the present case — an irrevocable inter vivos trust — since the provision exclusively addresses the disposition of property by devise or legacy.

Our analysis must, of course, pursue the course which the Supreme Court has defined:

Where a party seeks to invoke the protections available under the Slayer’s Act, a court must determine whether the slayer acquired any property or benefit by slaying the decedent, keeping in mind that the sections of the statute are to be construed broadly to effect the policies of the State.

Drumheller v. Marcello, 516 Pa. 428, 438, 532 A.2d 807, 809 (1987). The primary policy that the Pennsylvania Slayer Act • seeks to enforce is found in the maxim “Nullus commodum capere potest de injuria sua propia — No man can take advantage of his own wrong.” Restatement of Restitution, § 187, j comment a (1937). The legislature clearly so declared in. Section 8815: “This chapter shall not be considered penal in: nature, but shall be construed broadly in order to effect the ‘ policy of this State that no person shall be allowed to profit by his own wrong, wherever committed.” 20 Pa.C.S. § 8815.

When any person participates in the “willful and unlawful killing of any other person”, and when property, if events had taken their natural course, would have been distributed from the decedent’s estate to the slayer, the Slayer’s Act focuses on the manner in which the transfer of property was disrupted in order to identify which types of property interests the law should deny to the slayer.

[A] felonious and intentional killing potentially disrupts property transfers in three ways: (1) the victim loses personal enjoyment of property; (2) the victim loses the opportunity to make an alternative estate plan; and (8) survivor-ship becomes unascertainable because the order of deaths was determined by the survivor’s heinous act. The victim’s lost personal enjoyment of the property cannot be retrieved, and therefore, the law need not address this disruption. The property transfer law ... should determine whether the two potential disruptions to property transfers are ameliorated if the slayer, or the slayer’s estate, is denied the right to succeed to a property interest. If the slayer’s forfeiture of the property interest does not ameliorate either of those two potential disruptions to a property transfer, the analysis concludes that forfeiture is not essential to regulate property transfers.

Fellows, The Slayer Rule: Not Solely a Matter of Equity, 71 Iowa L.R. 489, 504 (January 1986) (footnote omitted).

The initial inquiry then is whether the decedent retained any right to alter disposition of the relevant property during his/her lifetime. The Slayer’s Act will always apply to any types of transfer where the decedent retained the ability to alter the disposition of property because the killing deprived the victim of the opportunity to change that disposition. Consequently, the Slayer’s Act will always deprive a slayer of the right to acquire property under a will, a revocable inter' vivos trust, or an insurance policy where the insured retained j the right to change beneficiaries. See: 20 Pa.C.S. § 8804 ¡ (slayer denied property which would have passed to the slayer; by devise or legacy from decedent); 20 Pa.C.S. § 8811 (slayer, denied insurance proceeds payable to the slayer as the beneficiary or assignee of insurance policy on the life of decedent).! Cf. Restatement of Restitution, § 189, comment c (1937) (rule denying slayer rights to insurance proceeds as a result of: death of decedent/insured applies regardless of whether or not; insured retained right to change beneficiary).

However, the Slayer’s Act restricts application of the| Act to those instances where the slayer acquires any property, or benefit “as the result of the death of the decedent ”. 20i Pa.C.S. § 8802. Thus, a slayer will not be deprived of property to which he/she is otherwise entitled. See: Restatement of Restitution, § 188, comment a (1937). Our Supreme Court! recognizes such a notion and has stated:

By its express terms, the [Slayer’s] Act attempts to insure: that a person will not benefit from his misdeed, but there isj no indication, express or implied, that the Act is meant to; extinguish any property right enjoyed by the slayer at the time of his misdeed nor should it be construed to have that] effect unless necessary. The balance struck by the legisla-; ture is that between the prevention of the slayer’s self-enrichment by his crimes on the one hand, and the right tci retain that property which he possessed immediately before! the slaying, on the other hand. ¡

In re Estate of Larendon, 439 Pa. 535, 538-539, 266 A.2d 763; 765 (1970).

Accordingly, the Slayer’s Act should not deprive i slayer of property over which the felonious killing had np effect. For example, a slayer who owns property as a joint tenant with the decedent may retain his/her property interest where the slayer obtains severance or a partition of the ^property. 20 Pa.C.S. § 8806(a), (b). See also: In re Estate of Larendon, supra at 540, 266 A.2d at 766-67. Based on this same principle, the Slayer’s Act will not deprive a slayer, who feloniously kills his/her spouse, of the slayer’s one-half interest for life in property owned by the entireties. 20 Pa.C.S. § 8805.

The second inquiry is whether the property is conditioned on survivorship. If an interest in property is conditioned on survivorship and survivorship becomes unascertainable because the order of deaths was determined by the survivor’s heinous act, it is doubtful whether or not a slayer would have had any interest in the property. The premise of the Slayer’s Act thus requires that the probability that the slayer would acquire an interest in the property should be resolved against the slayer. Restatement of Restitution, § 188, comment a (1937). The chances that the slayer would have outlived the decedent, given their respective ages or states of health, is immaterial in resolving the uncertainty. Id.

We turn now to the facts of the present case and first look to see whether the decedent retained any right to alter disposition of the relevant property during her lifetime. The trust designated Bernice J. Cottar, William Jamison, Floyd Jamison, and Florence Jamison as trustees. The trustees were empowered to:

use so much of the income and principal for the benefit of either of them [the trust beneficiaries, Ethel Jamison and Leslie Jamison] as they, in their sole and absolute discretion, after considering other available resources, deem appropriate to supplement, but not supplant, any governmental assistance or benefit available to either of them.

Ethel Jamison retained no power in which she could alter the disposition of either the principal of the trust or the income derived therefrom. Furthermore, the trust did not afford Ethel Jamison the right to invade either the principal or the income generated by it. By its very terms, only th§ designated trustees, “in their sole and absolute discretion”, could invade the principal or income of the trust. Finally, section six of the trust designated the trust as “irrevocable” and not “subject to further alteration or amendment.” Based upon the clear and unambiguous language of the trust, it is evident that Ethel Jamison did not retain any right to alter disposition of the trust property during her lifetime.

We turn now to the second inquiry: whether the property is conditioned on the survivorship of the victim. Section 1(D) of the trust provided as follows:

Upon the last to die of ETHEL JAMISON and LESLIE JAMISON, the trust shall terminate and the Trustees shall pay over all remaining principal in the following shares:
1. One-half thereof to BERNICE J. COTLAR, if then living, and if not then living, to her then living issue, per stirpes.

Thus, appellant’s entitlement to her share of the remaining trust was clearly conditioned upon her surviving both Ethel Jamison and Leslie Jamison. .Sections 8808 and 8809 of the Pennsylvania Slayer’s Act provide:

§ 8808. Interests dependent on survivorship or continuance of life
Any interest in property, whether vested or not, held by the slayer, subject to be divested, diminished in any way or extinguished, if the decedent survives him or lives to a certain age, shall be held by the slayer during his lifetime or until the decedent would have reached such age, but shall then pass as if the decedent had died immediately thereafter.

20 Pa.C.S. § 8808 (emphasis supplied).

§ 8809. Contingent remainders and executory or other future interests
As to any contingent remainder or executory or other future interest held by the slayer, subject to become vested in him or increased in any way for him upon the condition of the death of the decedent:
(1) If the interest would not have become vested or increased if he had predeceased the decedent, he shall be deemed to have so predeceased the decedent.

20 Pa.C.S. § 8809 (emphasis supplied).

It is clear that the effect of application of the Slayer’s Act is to deny appellant her share of the trust. The share to which appellant now claims she is entitled is a direct result of appellant’s felonious and intentional, and thereby heinous, act of the murder of her mother. The Slayer’s Act functions to deny a slayer any property which she acquires any interest in as a result of her atrocious act. 20 Pa.C.S. § 8802. Appellant’s interest in the transfer of the trust property was specifically conditioned upon her surviving the decedent. By altering the natural course of events upon which this condition rested, the Slayer’s Act operates to deprive appellant of her interest in the trust. See: 20 Pa.C.S. § 8808. This goal is accomplished through Section 8809, which presumes, for purposes of the disposition of the relevant property, that the slayer predeceased the decedent. 20 Pa.C.S. § 8809(1). Accordingly, since appellant is deemed to have predeceased the decedent, the trust provides that her share is to be distributed to her then living children, per stirpes. Thus, the trial court properly proceeded to distribute the appellant’s share of the trust to appellant’s then living children, Floyd Cotlar and Bree Cottar.

Order affirmed.

      . Act of June 30, 1972, P.L. 508, No. 164, §§ 2 et seq., effective July 1, 1972, 20 Pa.C.S. §§ 8801 et seq.

      . The Slayer’s Act defines the term “slayer” as "any person who participates, either as a principal or as an accessory before the fact, in the willful and unlawful killing of any other person.” 20 Pa.C.S. § 8801.

      . In re Estate of Larendon, supra, applied sections of the predecessor of the current Slayer's Act, Act of August 5, 1941, P.L. 816, § 1, 20 P.S, §§ 3441 et seq., repealed by the Act of June 30, 1972, P.L. 508, No. 164] §§ 2 et seq., effective July 1, 1972, 20 Pa.C.S. §§ 8801 et seq.

      . The benefits and powers enumerated in the trust on behalf of Ethel Jamison were identical to those enumerated for Leslie Jamison. Likewise, the trust did not terminate until the deaths of both Ethel Jamison and Leslie Jamison.

      . Appellant argues that she is entitled to her share of the trust because it was the death of Leslie Jamison, not Ethel Jamison, that terminated the trust. Appellant contends that Leslie Jamison’s suicide occurred after the death of Ethel Jamison and, consequently, appellant’s conviction of third degree murder for the death of Ethel Jamison should have no effect on appellant’s property rights. We cannot agree. It is conceivable that Ethel Jamison, had she not been murdered, may have outlived appellant. Had this course of events occurred, appellant would have had no interest whatsoever in the trust property. It is therefore irrelevant upon whose death the trust terminated since the order of deaths was rendered unnatural by appellant’s own hand. As we previously noted, the policy underlying the Slayer’s Act requires that we resolve the question of who may have outlived whom against appellant.


author: HUDOCK, Judge.

text:
    636 A.2d 1195
    COMMONWEALTH of Pennsylvania, Appellee, v. Clarence RICHARDSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 20, 1993.
    Filed Feb. 8, 1994.

      John W. Packel, Asst. Public Defender, Philadelphia, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Commonwealth, appellee.
    Before WIEAND, HUDOCK and MONTGOMERY, JJ.
   HUDOCK, Judge.

This is an appeal from the judgment of sentence imposed upon Appellant following his conviction for simple assault at the conclusion of a bench trial. Timely filed post-verdict motions were denied, and Appellant was sentenced to two years probation. This direct appeal followed in which the sole issue raised is whether the Commonwealth presented sufficient evidence to support his conviction. We affirm.

In reviewing a challenge to the sufficiency of the evidence, this Court must determine whether, viewing the evidence in the light most favorable to the verdict winner and drawing all reasonable inferences favorable to the Commonwealth, the jury reasonably has determined all elements of the crime to be established beyond a reasonable doubt. Commonwealth v. Hardcastle, 519 Pa. 236, 546 A.2d 1101 (1988), cert. den., 493 U.S. 1093, 110 S.Ct. 1169, 107 L.Ed.2d 1072 (1990). When so viewed, the facts may be summarized as follows: On August 11, 1992, Officer Ronald Grisler of the Fourth Police District of Philadelphia received a radio call to respond to a disturbance at 1603 South 7th Street, the address of a three-story apartment complex. Upon arriving at the residence, Officer Grisler observed Appellant’s girlfriend, Jean Ransom (Ransom), lying on her back and moaning at the top of the stairs, with Appellant standing over her. He began to climb the steps to further assess the situation when Ransom fell off the landing and tumbled towards him. Officer Grisler managed to catch her, whereupon Appellant charged down the steps shouting profanities and then reared back with his right hand and punched the officer in the face with his fist. The blow broke Officer Grisler’s eyeglasses and caused him to drop Ransom and to stumble down the stairs himself. The punch to the face caused Officer Grisler to suffer a sore jaw for a couple of days but did not require him to go to a hospital or to miss work.

After hearing the above facts, the trial court concluded that the blow delivered to Officer Grisler’s face, and the pain he felt over the next few days, were sufficient evidence of an attempt to cause bodily injury, and, therefore, sufficient evidence of simple assault. Additionally, the trial court concluded that Appellant intentionally threw the punch by inferring same from Appellant’s own testimony that he was angry and ran down the stairs telling Officer Grisler “to get out of here and go to hell.” Trial Court Opinion, 8/27/93, at p. 4, citing N.T., 2/1/93, at p. 32. Appellant argues that the evidence presented by the Commonwealth was insufficient to sustain his conviction for simple assault. His claim is based on: (1) insufficient bodily injury to Officer Grisler, and (2) lack of intent on Appellant’s part to injure the officer. As we find these claims to be meritless, we affirm Appellant’s judgment of sentence.

In order to sustain its burden of proof for a simple assault, the Commonwealth must show that Appellant “attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another[.]” 18 Pa.C.S. § 2701(a)(1). “Bodily injury” is defined as “[ljmpairment of physical condition or substantial pain.” 18 Pa.C.S. § 2301. The Commonwealth need not establish that the victim actually suffered bodily injury; rather, it is sufficient to support a conviction if the Commonwealth establishes an attempt to inflict bodily injury. This intent may be shown by circumstances which reasonably suggest that a defendant intended to cause injury. Commonwealth v. Polston, 420 Pa.Super. 233, 616 A.2d 669 (1992), alloc. den., 534 Pa. 638, 626 A.2d 1157 (1993).

Appellant first argues that Officer Grisler did not suffer bodily injury because he did not receive any medical treatment or miss any work as a result of the blow to the face. Such a claim is frivolous. Appellant cites no authority which states that such consequences are necessary to sustain a simple assault conviction. Officer Grisler testified that Appellant’s punch broke his glasses, caused him to stumble backwards, and caused pain for the next few days. Such testimony was sufficient to sustain a finding that Appellant actually caused bodily injury to Officer Grisler. See Commonwealth v. Ogin, 373 Pa.Super. 116, 540 A.2d 549 (1988) (en banc), alloc. den., 521 Pa. 611, 557 A.2d 343 (1989) (substantial pain may be inferred from the circumstances surrounding the physical force used, even in the absence of significant injury); Commonwealth v. Jorgenson, 341 Pa.Super. 550, 492 A.2d 2 (1985), rev’d. on other grounds, 512 Pa. 601, 517 A.2d 1287 (1986) (jury may infer that twice striking a person across the face causes pain even if there is not testimony of pain).

The trial court, however, did not conclude that Appellant caused bodily injury to Officer Grisler. Rather, as noted above, the trial court concluded that Appellant attempted to cause bodily injury. “To show an ‘attempt’ to inflict bodily injury, it must be shown that the actor had a specific intent to cause bodily injury[,]” Interest of J.L., 327 Pa.Super. 175, 177, 475 A.2d 156, 157 (1984). “A person acts intentionally with respect to a material element of an offense” if “it is his conscious object to engage in conduct of that nature or to cause such a result[.]” 18 Pa.C.S. § 302(b)(l)(i). As noted above, this intent may be shown by circumstances which reasonably suggest that a defendant intended to cause bodily injury. Polston, supra.

In his second claim, Appellant argues that the trial court erred in concluding that his conduct was intentional because, while his conduct “may have been an act stemming from grief, anger and/or frustration, it was not an intentional act to injure.” Appellant’s Brief at p. 6. We find this claim wholly devoid of merit. The trial court found credible the Commonwealth’s evidence which demonstrated that Appellant, angered by the officer’s conduct, ran to the officer, yelled “get out of here and go to hell,” and reared his arm back and swung at the officer’s face. From this evidence it was reasonable for the trial court to conclude that Appellant acted with an intent to cause bodily injury. Appellant’s motivation for his conduct does not negate the fact that it was an intentional act. See Commonwealth v. Manlin, 270 Pa.Super. 290, 411 A.2d 532 (1979) (evidence showed at least an attempt to cause bodily injury and thus was sufficient to sustain conviction for simple assault where appellant struck the victim in the face with his fist and the victim felt pain as a result of the blow); Commonwealth v. Barnett, 253 Pa.Super. 39, 45, 384 A.2d 965, 968 (1978) (where appellant struck one officer with his fists and struggled with another officer, evidence was sufficient to prove appellant “at least attempted a simple assault upon both officers”).

Appellant’s reliance on both Interest of J.L., supra, and Commonwealth v. Kirkwood, 360 Pa.Super. 270, 520 A.2d 451 (1987), is misplaced as these cases are clearly distinguishable from the facts of the instant matter In Interest of J.L., a juvenile used her elbow to push her two-year-old nephew away from her because he apparently was begging for candy. The toddler did not cry or exhibit any sign of pain. In concluding that this act did not rise to the level of criminal assault, this Court stated: “Within the confines of the family, it is difficult to attach criminality to the pushing, shoving, slapping, elbowing, hair-pulling, perhaps even punching and kicking, that not infrequently occur between siblings or other members of the same family.” Interest of J.L., at 178, 475 A.2d at 157. In Kirkwood, the appellant was charged with assault when he danced violently with an acquaintance thereby causing her bruises and slight cuts on her arms. This Court, in a plurality decision, found that this conduct did not constitute an assault because appellant’s dance partner merely experienced “temporary hurts resulting from trivial contacts which are a customary part of modern day living.” Kirkwood, at 275, 520 A.2d at 454. Appellant’s conduct in striking a police officer cannot be equated to a family squabble between children or violent dancing. Rather, it was an intentional act upon a police officer which rose to the level of simple assault.

Judgment of sentence is affirmed.

      . 18 Pa.C.S. § 2701(a).

      . Appellant testified that, after his girlfriend had fallen down the stairs, he rushed down after her and that his forward momentum caused him to unintentionally come into contact with Officer Grisler. As fact-finder, the trial court passes upon the credibility of witnesses and is free to believe all, some or none of the evidence. Commonwealth v. Tate, 485 Pa. 180, 401 A.2d 353 (1979). The trial court disbelieved this testimony. See Trial Court Opinion, 8/27/93, at p. 2, n. 2.


text:
    636 A.2d 1197
    Edward J. MONAHAN, Appellant, v. Richard A. McGRATH, Appellee.
    Superior Court of Pennsylvania.
    Argued Nov. 8, 1993.
    Filed Feb. 8, 1994.

      Michael Coughlin, Blue Bell, for appellant.
    Robert O. Baldi, New Hope, for appellee.
    Before WIEAND, OLSZEWSKI and POPOVICH, JJ.
   WIEAND, Judge.

In this action to recover the down money paid pursuant to an agreement to purchase real estate, the trial court heard the evidence non-jury when the defendant failed to appear for trial and entered a verdict in favor of the plaintiff. Without giving any reason for so doing, the trial court subsequently ordered a new trial. The plaintiff appealed.

Edward J. Monahan entered into an agreement to purchase from Richard A. McGrath, who agreed to sell, a certain piece of real estate situated in Warrington Township, Bucks County. Pursuant to the terms thereof, Monahan made a down payment of $32,100.00. Following unsatisfactory engineering studies of the property, however, Monahan sought to terminate the agreement pursuant to an escape clause and recover the down payment because of structural and environmental defects found in the property. McGrath denied the request for a refund of the down payment, and Monahan, on July 6, 1988, filed suit to recover the same.

Trial of the action, after one continuance, was scheduled for November 30, 1992. At the time set for trial, however, neither McGrath nor his counsel appeared. The trial proceeded in their absence; and, following a relatively informal hearing, the court returned a verdict for the plaintiff which, with interest, was in the amount of $41,654.00. Within ten days thereafter, McGrath filed a motion for new trial. He alleged in support thereof the following: (1) lack of jurisdiction because the amount in controversy made the claim subject to compulsory arbitration; (2) a failure to record all the testimony, thus making it impossible for an appellate court to review the sufficiency of the evidence; (3) inadequate notice of trial; and (4) equitable considerations. To supplement McGrath’s post-trial motion, extensive depositions were taken and documented by copies of correspondence generated by the litigation. On April 27, 1993, the trial court, without making findings of fact and without any opinion or statement of reasons, entered an order granting a new trial and directing that the case be submitted to compulsory arbitration. When Monahan appealed, the trial court filed a short statement in which it suggested that its order granting a new trial was interlocutory and not appealable but without stating any reason for the new trial.

The trial court was incorrect in assuming that its order was not appealable. Although interlocutory, an order in a civil action awarding a new trial is appealable as a matter of right. Pa.R.App.P. 311(a)(5).

A trial court is required, upon receipt of a notice of appeal, to file of record a brief statement of its reasons for the order complained of on appeal. Pa.R.App.P. 1925(a). This assists an appellate court in conducting meaningful review. Pendleton v. Philadelphia Transportation Co., 376 Pa. 598, 600, 103 A.2d 724, 725 (1954); Beal v. Reading Co., 370 Pa. 45, 49, 87 A.2d 214, 216 (1952). Here, the trial court has failed to comply with this requirement and has thereby denied to this Court any insight as to the reason or reasons for its order.

The legislature, at 42 Pa.C.S. § 7361, has authorized local courts of common pleas, in the absence of general rule adopted by the Supreme Court, to require that certain civil actions, in which the amounts in controversy do not exceed $50,000.00, be submitted to compulsory arbitration. The Supreme Court, although adopting rules applicable to compulsory arbitration, has left it to the local courts to determine the availability of compulsory arbitration. See: Pa.R.C.P. 1301. Pursuant thereto, Bucks County has adopted a rule requiring compulsory arbitration of civil actions in which the amount in controversy does not exceed $50,000.00.

The overall objective of compulsory arbitration is the expeditious disposition of pending litigation. McGonigle v. Currence, 387 Pa.Super. 511, 515, 564 A.2d 508, 510 (1989). Compulsory arbitration provides the parties with a more expeditious and inexpensive alternative to trial. 3 P.L.EArbitration § 5. The adoption of a system of compulsory arbitration, however, does not deprive a common pleas court of jurisdiction to hear civil matters otherwise subject to arbitration. “[T]he test of jurisdiction is the competency of the court to determine controversies of the general class to which the case presented for consideration belongs.” Capozzi v. Antonoplos, 414 Pa. 565, 569, 201 A.2d 420, 422 (1964). Local rules of court pertaining to compulsory arbitration do not affect the competency of a court of common pleas to hear civil matters subject to compulsory arbitration. “Such rules are intended as aids to the orderly administration of justice as well as to effective procedure.” Jones Motor Co. v. Pennsylvania Public Utility Commission, 202 Pa.Super. 134, 141, 195 A.2d 125, 128 (1963). See also: Werts v. Luzerne Borough Authority, 15 Pa.Commw. 631, 634, 329 A.2d 335, 336 (1974). Moreover, a court has the power to waive or suspend its own rules. Jones Motor Co. v. Pennsylvania Public Utility Commission, supra, 202 Pa.Super. at 141, 195 A.2d at 128. The failure of a court to order a case on the list for compulsory arbitration does not deprive the court of jurisdiction to hear and decide the case. It merely deprives the parties of a speedier and less expensive means for resolving their dispute. Thus, it cannot be said that an action which is tried directly by a court without prior submission to compulsory arbitration is jurisdictionally defective and null and void. It does not per se entitle either party to new proceedings before a board of arbitrators. Such a result would run counter to the whole purpose of compulsory arbitration, which is the expeditious and inexpensive disposition of pending cases.

We have also reviewed the record of the trial held in this matter and find no inadequacy in the record that would entitle the appellee-defendant to a new trial per se.

Appellee’s third and fourth reasons for a new trial cannot be reviewed in any meaningful way without findings of fact by the trial court.

When the case was called for trial, the defendant-appellee failed to appear. The rule applicable to such an event appears at R.C.P. 218(b) as follows:

(b) If without satisfactory excuse a defendant is not ready, the plaintiff may
(1) proceed to trial, or,
(2) if the case called for trial is on appeal from compulsory arbitration, either proceed to trial or request the court to dismiss the appeal and reinstate the arbitration award.

Pursuant to this rule, the trial court could properly proceed with the trial on the date set therefor when the defendant and his counsel failed to appear. After the trial court’s decision was entered the defendant properly used a motion for new trial as the vehicle for presenting to the court his excuse for failing to appear for trial. If the court deemed the excuse “satisfactory,” it could then vacate its decision and award a new trial.

Here, although the defendant-appellee proceeded properly, the trial court did not fulfill its responsibility. It did not make findings, and it did not decide whether defendant’s excuse was satisfactory. Without these determinations, this Court cannot conduct meaningful review. It cannot make its own findings; and, therefore, without findings by the trial court, it cannot possibly determine whether defendant offered a “satisfactory” excuse for failing to appear for trial. Without an adequate excuse, the trial court’s order awarding a new trial cannot be sustained. There is no other possible basis for awarding a new trial. Under the circumstances of this case, therefore, we deem it necessary to remand to the trial court to make findings of fact and prepare a statement of its reasons for awarding a new trial.

Remanded to the trial court to make findings of fact and to prepare a statement of reasons for its order within sixty (60) days. Jurisdiction is retained meanwhile.

      . At the time the instant action was commenced, Bucks County Rule of Civil Procedure 1301(a) required that cases with an amount in controversy of less than $20,000.00 be heard and decided by a board of arbitrators. On May 31, 1992, the rule was amended to increase the amount to $50,000.00. The amendment was made applicable to pending actions.

      . Pa.R.C.P. 218 was amended March 1, 1993, effective July 1, 1993, by the addition of subsection (c) as follows:
      (c) A party who fails to appear for trial shall be deemed to be not ready without satisfactory excuse.
      This amendment was intended to overrule Superior Court decisions which had incorrectly interpreted the prior rule. This is explained in the Explanatory Comment — 1993 as follows:
      Explanatory Comment — 1993
      Rule of Civil Procedure 218 provides certain procedural consequences when a party is not ready "without satisfactory excuse" when a case is called for trial. Two recent cases had interpreted the rule so that a failure to appear for trial was not sufficient to invoke the provisions of the rule unless the court made a determination that the failure to appear was without satisfactory excuse. See Elcomp,

        Inc. v. Drolet, 398 Pa.Super. 421, 581 A.2d 203 (1990) and Christopher’s Auto Parts v. Gilmore, 410 Pa.Super. 541, 600 A.2d 585 (1991).
      These cases added a procedural step which was both absent from the rule and unnecessary. As stated in the dissent to the Christopher’s Auto Parts case, 410 Pa.Super. at 548, 600 A.2d at 589:
      the trial court must first ascertain the absent party's reason or reasons for failing to appear. How this is to be done without the presence of the absent party the Court did not explain. Presumably, it would require an additional hearing, with full notice to the parties and findings of fact by the hearing court.
      Consequently the rule has been amended by adding new subdivision (c) which provides that a "party who fails to appear for trial shall be deemed to be not ready without satisfactory excuse." The trial court may grant relief under the rule without a separate determination that the failure to appear was without satisfactory excuse.
      Of course, if the court has before it information which demonstrates that the failure to appear is satisfactorily excused, then the presumption of subdivision (c) would not be warranted and the court would not exercise its powers under the rule.
      If the court enters a nonsuit or a judgment of non pros or dismisses an appeal and there exists a sufficient excuse, the aggrieved party may present the excuse through a motion to remove the nonsuit or a petition to open the judgment or reinstate the appeal. The petition or post-trial procedure will result in a record which will enable an appellate court to review the trial court’s action to determine if there has been an abuse of discretion.
      The revised procedure was characterized by the dissent in the Christopher’s Auto Parts case as follows, 410 Pa.Super. at 548, 600 A.2d at 589:
      neither an innocent party who is present for trial nor the trial court will be prevented from proceeding at the time set for trial, and the burden will be placed upon the party who has failed to appear to show cause why the trial court should reopen the proceedings.


author: WIEAND, Judge:

text:
    636 A.2d 1201
    Dorothea Ann BROOKS, Appellant, v. Randall SAGOVIA, D.D.S., Appellee.
    Superior Court of Pennsylvania.
    Argued Nov. 9, 1993.
    Filed Feb. 15, 1994.

      Raymond M. Bily, Philadelphia, for appellant.
    Peter A. Callahan, Norristown, for appellee.
    Before WIEAND, OLSZEWSKI and POPOVICH, JJ.
   WIEAND, Judge:

In this dental malpractice action based upon an alleged failure to make a prompt diagnosis of periodontal disease, the trial court entered summary judgment in favor of the defendant-dentist because the action was barred by the two year statute of limitations contained in 42 Pa.C.S. § 5524(2). On appeal, the plaintiff-patient contends that the trial court failed to apply the discovery rule properly. After careful review, we affirm the judgment entered by the trial court.

Dorothea Ann Brooks was a dental patient of Randall Sagovia, D.D.S., from October 21,1985, through May 11,1987. During this period she received regular examinations, care and treatment of her teeth. On March 16, 1988, Brooks was examined by Barry Sockel, D.D.S. Within a week of that exam, Dr. Sockel called Brooks to inform her that she was suffering from extensive periodontal disease which had caused a 50% loss of bone. Dr. Sockel referred Brooks to a periodontist. Brooks did not immediately make an appointment with the recommended periodontist but, instead, sought a second opinion from Harold Marcus, D.D.S. On March 26, 1988, Dr. Marcus confirmed the diagnosis of periodontal disease and referred Brooks to Saul Rosenberg, D.M.D., a periodontist. Brooks began treatment with Dr. Rosenberg on May 4, 1988.

On June 20, 1990, more than two years later, Brooks commenced an action by writ of summons against Dr. Sagovia. She filed a complaint on January 15, 1992, in which she averred that Dr. Sagovia had been negligent for failing to diagnose her periodontal disease. Dr. Sagovia filed an answer and new matter to the complaint in which he alleged, inter alia, that the cause of action was barred by the statute of limitations. On April 30, 1993, the trial court entered summary judgment in favor of the defendant-dentist on the basis that Brooks’ claim was barred by the applicable two year statute of limitations. Brooks appealed.

In E.J.M. v. Archdiocese of Philadelphia, 424 Pa.Super. 449, 622 A.2d 1388 (1993), the Superior Court stated:

On review of an order granting summary judgment, we must determine whether the moving party has established that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. In making this determination, we must examine the record in the light most favorable to the non-moving party, who is entitled to the benefit of all reasonable inferences. All doubts as to the existence of a factual dispute must be resolved in favor of the non-moving party and the entry of summary judgment is appropriate only in the clearest of cases.

Id., 424 Pa.Super. at 453, 622 A.2d at 1390, quoting Mentzer v. Ognibene, 408 Pa.Super. 578, 583-584, 597 A.2d 604, 607 (1991) (citations omitted). See also: Hayward v. Medical Center of Beaver County, 530 Pa. 320, 324, 608 A.2d 1040, 1042 (1992). Summary judgment may properly be entered in favor of a defendant when the plaintiffs cause of action is barred by the statute of limitations. A. McD. v. Rosen, M.D., 423 Pa.Super. 304, 307, 621 A.2d 128, 130 (1993).

The statute of limitations applicable to the present dental malpractice action is found at 42 Pa.C.S. § 5524(2). This section provides that “[a]n action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another” must be commenced within two years. Generally, “a party asserting a cause of action is under a duty to use all reasonable diligence to be properly informed of the facts and circumstances upon which a potential right of recovery is based and to institute suit within the prescribed statutory period.” Pocono Int’l Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 84, 468 A.2d 468, 471 (1983). The statutory period begins to run “as soon as the right to institute and maintain a suit arises; lack of knowledge, mistake or misunderstanding do[es] not toll the running of the statute of limitations.” Id. See also: Nesbitt v. Erie Coach Co., 416 Pa. 89, 96, 204 A.2d 473, 476 (1964); Bradley v. Ragheb, M.D., 429 Pa.Super. 616, 620, 633 A.2d 192, 194 (1993); A. McD. v. Rosen, M.D., supra, 423 Pa.Super. at 307-308, 621 A.2d at 130. As a general rule, the statute of limitations will begin to run on the date the injury is sustained. Pounds v. Lehman, M.D., 384 Pa.Super. 358, 361, 558 A.2d 872, 873, allocatur denied, 523 Pa. 643, 565 A.2d 1167 (1989). Unless an exception applies, a plaintiff is barred from commencing suit once the statute of limitations has expired. Pocono Int’l Raceway, Inc. v. Pocono Produce, Inc., supra, 503 Pa. at 85, 468 A.2d at 471.

The “discovery rule” is an exception which can serve to toll the running of the statutory period. Application of the discovery rule arises from the inability of the injured party, despite the exercise of due diligence, to know of his or her injury or its cause. Id. The Superior Court recently discussed the discovery rule in Bradley v. Ragheb, M.D., supra. There, the court stated:

“In those circumstances where the plaintiff cannot reasonably be expected to be aware of the injury or of its cause, the discovery rule may apply to toll the running of the [statutory period].” A McD. v. Rosen, M.D., supra[, 423 Pa.Super.] at 308, 621 A.2d at 130. See also: Hayward v. Medical Center of Beaver County, 530 Pa. 320, 325, 608 A.2d 1040, 1043 (1992); E.J.M. v. Archdiocese of Philadelphia, supra [424 Pa.Super.] at 454, 622 A.2d at 1391. The discovery rule provides that where the existence of the injury is not known to the complaining party and such knowledge cannot reasonably be ascertained within the prescribed period, the period of limitation does not begin to run until discovery of the injury is reasonably possible. Hayward v. Medical Center of Beaver County, supra [530 Pa.] at 325, 608 A.2d at 1043. Under the discovery rule, the limitations period will be tolled until the “plaintiff knows, or in the exercise of reasonable diligence should have known, (1) that he has been injured, and (2) that his injury has been caused by another’s conduct.” MacCain v. Montgomery Hospital, 396 Pa.Super. 415, 419-420, 578 A.2d 970, 972-973 (1990), allocatur denied, 527 Pa. 624, 592 A.2d 45 (1991). When presented with an assertion of applicability of the discovery rule, a court must, before it applies the exception, “address the ability of the damaged party, exercising reasonable diligence, to ascertain the fact of a cause of action.” Pocono International Raceway, Inc. v. Pocono Produce, Inc., supra[, 503 Pa.] at 85, 468 A.2d at 471. The plaintiffs conduct is to be evaluated in terms of what she should have known at a particular time by following a course of reasonable diligence. “If a party has the means of discovery within his [or her] power but neglects to use them, his [or her] claim will still be barred.” Burnside v. Abbott Laboratories, 351 Pa.Super. 264, 292, 505 A.2d 973, 988 (1985). See also: DeMartino v. Albert Einstein Medical Center, N.D., 313 Pa.Super. 492, 508, 460 A.2d 295, 303 (1983). As this court said in DeMartino, supra:
[O]nce the patient is aware or should reasonably have become aware that medical treatment is causing [her] personal injury the statute begins and the prospective plaintiff is required to begin doing those things for which the statute of limitations specifically provides time: “an opportunity to select and consult with a lawyer, investigation, initiation of suit, discovery, joinder of additional parties, etc.”
Id., 313 Pa.Super. at 502, 460 A.2d at 300, quoting Keating v. Zemel, 281 Pa.Super. 129, 134 n. 4, 421 A.2d 1181, 1184 n. 4 (1980).

Id., 429 Pa.Super. at 620-621, 633 A.2d at 194-195. See also: Ingenito v. AC & S, Inc., 430 Pa.Super. 129, 633 A.2d 1172 (1993) (en banc).

In most cases, whether a plaintiff has made a timely discovery of his or her injury is an issue of fact to be decided by the jury. A. McD. v. Rosen, M.D., supra, 423 Pa.Super. at 308, 621 A.2d at 130; Carns v. Yingling, M.D., 406 Pa.Super. 279, 285, 594 A.2d 337, 340 (1991). However, summary judgment may properly be entered by the court when the undisputed facts lead unerringly to the conclusion that the time it took to discover an injury or its cause was unreasonable as a matter of law. A. McD. v. Rosen, M.D., supra, 423 Pa.Super. at 308, 621 A.2d at 130. See also: Carns v. Yingling, M.D., supra; MacCain v. Montgomery Hospital, 396 Pa.Super. 415, 578 A.2d 970 (1990), allocatur denied, 527 Pa. 624, 592 A.2d 45 (1991).

A review of the record in the present case discloses that appellant possessed the requisite degree of knowledge prior to June, 1988. In March, 1988, Brooks had been diagnosed and was informed that she had extensive periodontal disease. In her deposition testimony, she admits that when Dr. Sockel informed her that the disease had caused a 50% bone loss she “assumed that [it] wasn’t something that just happened.” Her testimony also indicated that at the time she learned of her disease, she wondered, if she had been receiving dental care and the disease was detectable, why hadn’t she been informed that she had it. Moreover, Dr. Sockel informed Brooks that the bone loss was visible on x-rays which Dr. Sagovia had taken in October, 1985. Brooks testified that this upset her because “if it was there, [she thought she] should have been told it was there.” It is clear, therefore, that already in March, 1988, appellant possessed the requisite degree of knowledge needed to commence suit against Dr. Sagovia. She knew or reasonably should have known that she had had the disease while she had been a patient of the appellee-dentist and that appellee had failed to tell her of it. Because the plaintiff-appellant had this information in March, 1988, the statute of limitations began to run at that time.

Whether the plaintiff-appellant then knew that the defendant-dentist’s failure to diagnose her disease was a result of negligence is of no consequence. The two year period afforded by the statute of limitations is the time in which a plaintiff is expected to exercise reasonable diligence in seeking the medical and legal advice necessary to determine whether an action should be brought. Bradley v. Ragheb, M.D., supra, 429 Pa.Super. at 625, 633 A.2d at 196; Levenson v. Souser, 384 Pa.Super. 132, 149, 557 A.2d 1081, 1089, allocatur denied, 524 Pa. 621, 571 A.2d 383 (1989). See also: Cochran v. GAF Corp., 430 Pa.Super. 175, 633 A.2d 1195 (1993) (en banc). Thus, the fact that appellant did not acquire knowledge of Dr. Sagovia’s negligence, if any, did not prevent the running of the statute of limitations after she learned that the disease was present while she had been Dr. Sagovia’s patient.

The order entering summary judgment is affirmed.


author: CIRILLO, Judge:

text:
    637 A.2d 296
    Wayne SNARE v. EBENSBURG POWER COMPANY and UE & C Catalytic v. UNITED ENGINEERS & CONSTRUCTORS, INC. v. SAUER, INC. Appeal of UE & C CATALYTIC and United Engineers & Constructors, Inc.
    Superior Court of Pennsylvania.
    Argued Oct. 19, 1993.
    Filed Dec. 20, 1993.
    Reargument Denied Feb. 23, 1994.

      Michael Yablonski, Pittsburgh, for appellant.
    Michael F. Nerone, Pittsburgh, for Sauer, Inc., appellee.
    Before CIRILLO, FORD ELLIOTT and CERCONE, JJ.
   CIRILLO, Judge:

This is an appeal from an order of the Court of Common Pleas of Blair County sustaining the preliminary objections in the nature of a demurrer filed by additional defendant Sauer, Inc. (Sauer) and dismissing the third party complaint filed by United Engineers & Constructors, Inc. (United) and UE & C Catalytic (Catalytic). We affirm.

United and Catalytic contend that Sauer’s preliminary objections were improperly granted and present one issue for our review:

Whether the Workers’ Compensation Act, 77 P.S. § 1 et seq., bars appellants’ claim for contractual indemnity against an indemnitor/employer whose negligence allegedly caused or contributed to personal injuries by its employer?

Plaintiff, Wayne Snare, filed a complaint against Ebensburg Power Company (Ebensburg) and Catalytic. Snare alleged that on May 29, 1990, he was injured during the course of his employment as a pipefitter for Sauer at the Ebensburg Power Company in Ebensburg, Pennsylvania. At that time, Sauer was engaged as a subcontractor on a power plant construction project for which Ebensburg was the owner and. Catalytic was the general contractor. Snare, while operating a crane on a turbine floor, averred that he fell into a hole two feet deep and two feet wide and that Ebensburg and Catalytic were negligent in failing to provide a safe worksite.

On August 5, 1992, Ebensburg filed a third party complaint against United on the basis of an indemnity contract with United. On October 30, 1992, Catalytic and United filed a third party complaint against subcontractor Sauer. In the complaint, Catalytic and United alleged that they were sister corporations and were seeking indemnification or contribution in the event that they would be found liable to plaintiff; this allegation was based on the indemnity provisions in the written subcontract between United and Sauer. United and Catalytic denied any negligence and averred that if Snare was injured as he had alleged, then his injuries were caused by Sauer’s negligence and the contract between United and Sauer, requires Sauer, as subcontractor, to indemnify United and Catalytic for personal injuries caused by its negligence. It is the dismissal of this latter third party action that is the subject of this appeal.

Sauer filed preliminary objections to the third party complaint filed by Catalytic and United, alleging that the complaint should be dismissed under section 481 of the Workers’ Compensation Act (the Act), 77 P.S. § 481. Sauer averred that in order to hold an employer (Sauer) liable to a third party (United and Catalytic) for negligence committed by an employee (here, subcontractor United and Catalytic) of that employer (Sauer), the employer, pursuant to section 481(b) of the Act, must expressly agree to assume liability in a written contract. In other words, the Act does not bar an action by a third party (i.e., United and Catalytic) against the employer (Sauer), if the employer has complied with the provisions in section 481(b).

The trial court, based upon the relevant law and the applicable provision in the contract between United and Sauer, found that Sauer, the employer, had not expressly agreed to assume liability for a third party’s negligence. The court granted Sauer’s preliminary objections and dismissed the complaint, prompting this appeal by United and Catalytic.

In reviewing preliminary objections, only facts that are well pleaded, material, and relevant will be considered as true, together with such reasonable inferences that may be drawn from those facts; preliminary objections will be sustained only if they are clear and free from doubt. Santiago v. Pennsylvania National Mutual Casualty Insurance Co., 418 Pa.Super. 178, 183, 613 A.2d 1235, 1238 (1992). Preliminary objections should be sustained only where it appears -with certainty that, upon the facts averred, the law will not allow the plaintiff to recover. International Union of Operating Engineers, Local No. 66, AFL-CIO v. Linesville Construction Co., 457 Pa. 220, 322 A.2d 353 (1974).

Under the Pennsylvania system of fact pleading, the pleader must define the issues; every act or performance essential to that end must be set forth in the complaint. See Pa. R.C.P. 1019; 4 Standard Pennsylvania Practice § 21:82; see also Pike County Hotels Corporation v. Kiefer, 262 Pa.Super. 126, 396 A.2d 677 (1978) (at a minimum, the pleader must set forth facts upon which his cause of action is based). When ruling on preliminary objections, a court must generally accept as true all well and clearly pleaded facts, but not the pleader’s conclusions or averments of law. See 5 Standard Pennsylvania Practice § 25:8. See also Keirs v. Weber National Stores, Inc., 352 Pa.Super. 111, 507 A.2d 406 (1986).

Santiago, 418 Pa.Super. at 185, 613 A.2d at 1238-39.

The Workers’ Compensation Act (the Act) is the sole and exclusive means of recovery against employers for all injuries arising out of accidents occurring within the course of employment. 77 P.S. § 481(a). The exclusivity provision of the Workers’ Compensation Act essentially “bars tort actions flowing from any work-related injury.” Kline v. Arden H. Verner Co., 503 Pa. 251, 256, 469 A.2d 158, 160 (1983). An employer may, however, consistent with the indemnification provision in the Act, 77 P.S. § 481(b), enter into an indemnity contract with a third party; the employer, then, may expressly assume liability for the negligence of a third party which results in injury to the employer’s employee.

The relevant portion of the Act provides:

In the event injury or death to an employe is caused by a third party, then such employe, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to receive damages by reason thereof, may bring their action at law against such third party, but the employer, his insurance carrier, their servants and agents, employes, representatives acting on their behalf or at their request shall not be liable to a third party for damages, contribution, or indemnity in any action at law, or otherwise, unless liability for such damages, contributions or indemnity shall be expressly provided for in a written contract entered into by the party alleged to be liable prior to the date of the occurrence which gave rise to the action.

77 P.S. § 481(b) (emphasis added).

Though specifically provided for in the statute, indemnification contracts in this context are not favored in the law and every intendment must be construed against the party seeking protection from liability or indemnification from the employer. See Pittsburgh Steel Co. v. Patterson-EmersonComstock, Inc., 404 Pa. 53, 171 A.2d 185 (1961); Gerard v. Penn Valley Constructors, Inc., 343 Pa.Super. 425, 495 A.2d 210 (1985); see generally Standard Pennsylvania Practice § 167:297. The language in such contracts must be clear and unequivocal; the parties to the contract must specifically provide that a named employer agrees to indemnify a named third party from liability for the acts of that party’s negligence which cause harm to the named employer’s employees. Bester v. Essex Crane Rental Corp., 422 Pa.Super. 178, 619 A.2d 304 (1993). Furthermore, the burden of proving the applicability of an indemnification provision is on the party seeking relief from liability, and the burden increases if the party seeking such relief has drafted the agreement. Donaldson v. Commonwealth, Department of Transportation, 141 Pa.Commw. 474, 596 A.2d 269 (1991).

The contractual language to which United refers is found in a document marked with United’s logo, entitled “Subcontractor’s Release and Certificate.” The relevant provision reads:

5. [Subcontractor/Sauer] Agrees to indemnify and hold harmless the Owner [Ebensburg Power Company] and Contractor [United] their successors and assigns, from and against any and all claims, demands, suits, actions, losses, liens, damages, or expenses and attorneys’ fees, however caused, resulting from, arising out of or in any way connected with the Contract....

Relying upon this contractual language and this court’s decision in Remas v. Duquesne Light Co. v. Gregg Security Services, Inc., 371 Pa.Super. 183, 537 A.2d 881, appeal denied, 520 Pa. 598, 552 A.2d 252 (1988), the trial court determined that the law would not allow United and Catalytic to recover. In Remas, this court held that contractual language, similar to that at issue here, did not amount to an express agreement by the employer (Gregg) to indemnify the contractor (Duquesne Light). The language in Remas provided:

INDEMNIFICATION — To hold harmless and indemnify the Company [original defendant] from and against any liability, loss, damages, cost and expense which the Company may suffer from any claim, demand, action, suit or cause of action which may be made or had against the Company by reason of any act committed by the Contractor [additional defendant], its agents, servants or employees other than an act performed by the Contractor, its agents, servants or employees at the specific instruction of the Company.

Id., 371 Pa.Super. at 186, 537 A.2d at 882. From this language the Remas court determined that the employer did not expressly assume an indemnity obligation for injury to its own employees. After a careful scrutiny and a strict construction of the language, the court found that the absence of an express statement that the employer agreed to waive its statutory protection and assume unlimited liability for damages suffered by its own employees resulted in a finding that the employer had not intended to forego statutory immunity. Thus, the complaint against the employer, Gregg, was dismissed.

The language in Remas and the language disputed here does not rise to the level of specificity required to provide a third party with indemnification protection by the employer. Blanket indemnity clauses will not create liability. The parties must specifically utilize language which indicates that the employer/alleged indemnitor intends to indemnify the third party against claims by employees of the alleged indemnitor; this must clearly appear from the terms of the agreement.

This principle was recently illustrated in this court’s en banc decision in Bester, supra. There, the court reaffirmed “strict scrutiny” and “strict construction” as interpretation guides, and required'that “such a clause contain plain language which would avoid the employer’s protection from double responsibility which is afforded by the Work[er]’s Compensation Act.” Bester, 422 Pa.Super. at 187, 619 A.2d at 308.

Finding no explicit expression of Sauer’s intent to waive its protection under the Workers’ Compensation Act, 77 P.S. § 481(b), we conclude that the law provides that United is unable to recover. Bester, supra. The order granting Sauer’s preliminary objections and dismissing the third party complaint is, therefore, affirmed.

Order affirmed.

      . Sauer filed a motion to quash this appeal, which was denied.