author: OLSZEWSKI, Judge: EAKIN, Judge,

text:
    675 A.2d 295
    COMMONWEALTH of Pennsylvania v. Michael P. WEBER, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 31, 1996.
    Filed April 11, 1996.

      Richard J. Makoul, Allentown, for appellant.
    Victoria Coyle, Assistant District Attorney, Bethlehem, for Commonwealth, appellee.
    Before CAVANAUGH, EAKIN and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

On January 20, 1994, appellant Michael Weber was arrested and charged with numerous counts of rape, statutory rape, involuntary deviate sexual intercourse, aggravated indecent assault, indecent assault, and corruption of minors. These charges stemmed from his daughter’s (Daughter’s) accusations that Weber had continuously forced her to engage him in sexual relations during the ten years following her eighth birthday. The Honorable Jack A. Panella presided over Weber’s four-day trial and the jury returned guilty verdicts on all charges. Judge Panella sentenced Weber to 20-to-64 years imprisonment. In his timely appeal, Weber asks us to the review the following issues:

1. Whether the trial court erred in applying the Rape Shield Law to preclude the defendant from introducing, and commenting upon during summation, testimony concerning a fabrication defense.
2. Whether trial counsel was ineffective for failing to object to certain sidebar comments made by the trial court in a voice audible to the jury.
3. Whether trial counsel was ineffective for failing to object to testimony concerning the defendant’s illicit thoughts regarding other minor children.

We find merit in Weber’s first contention and vacate his judgment of sentence and remand this case for retrial. Thus, we need not address his remaining claims of error.

Pennsylvania’s Rape Shield Law reads as follows:

§ 3104 Evidence of victim’s sexual conduct.
(a) General Rule. — Evidence of specific instances of the alleged victim’s past sexual conduct, opinion evidence of the alleged victim’s past sexual conduct, and reputation evidence of the alleged victim’s past sexual conduct shall not be admissible in prosecutions under this chapter except evidence of the alleged victims past sexual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence.

18 Pa.C.S.A. § 3104.

At trial, Weber sought to introduce evidence that Daughter was pregnant and planning an abortion but was afraid that Weber would find out and physically punish her. This evidence, Weber asserts, establishes Daughter’s motive to fabricate the sexual abuse story: a pre-emptive strike to avoid the impending beating.

In arguing that the evidence should have been properly admitted, Weber first contends that Daughter’s planned abortion constitutes a “clinical procedure” rather than “sexual conduct” and, thus, our state’s Rape Shield Law does not apply. We disagree. While no Pennsylvania case has addressed this specific issue, we are mindful that the Pennsylvania Supreme Court has demonstrated a preference for broadly construing our state’s Rape Shield Law. In Commonwealth v. Berkowitz, 537 Pa. 143, 641 A.2d 1161 (1994), defendant, who had been charged with rape, sought to introduce evidence that his alleged victim had previously argued with her boyfriend about her fidelity. The defendant, who claimed that intercourse with the victim had been consensual, alleged that the proffered evidence was relevant to establish that the victim’s fear of her boyfriend’s jealousy motivated her to claim that sex with the defendant had been forced. In finding that the trial court had properly excluded this evidence, our Supreme Court wrote:

The purpose of the Rape Shield Law is to prevent a sexual assault trial from degenerating into an attack upon the victim’s reputation for chastity. The allegation that the victim and her boyfriend had argued over the issue of her infidelity is so closely tied to the issue of the victim’s fidelity itself that, for the purposes of the Rape Shield Law, they are one and the same. This is precisely the type of allegation regarding past sexual conduct from which the Rape Shield Law is specifically designed to protect victims.

Id. at 151, 641 A.2d at 1165 (citations omitted).

Likewise, we find that the issue of Daughter’s planned abortion is so closely tied to the issue of Daughter’s chastity that, for the purposes of the Rape Shield Law, they are one and the same. In reaching this conclusion, we echo the sentiments of our fellow jurist in Indiana:

A pregnancy which has been aborted can only be the result of “past sexual conduct.” This is what the Rape Shield Statute proscribes. The statute ... should ... exclude evidence of termination of pregnancy. Any reference to a prior abortion inherently contains a reference to past sexual conduct.

Razo v. Indiana, 431 N.E.2d 550, 554-555 (Ind.App.1982) (by Hoffman, J., with two judges concurring). Consequently, we find that evidence concerning a victim’s abortion is properly encompassed within our state’s Rape Shield Law.

The fact that our Rape Shield Law applies, however, does not necessarily mean that the offered evidence must have been excluded at trial. As noted above, the purpose of the Rape Shield Law is to prevent a sexual assault trial from degenerating into an attack upon the victim’s reputation for chastity. Berkowitz, 537 Pa. at 149-51, 641 A.2d at 1165.

At common law, and to some extent even today, a rape victim often suffered secondary abuse at the hands of the judicial system through aggressive defense counsel who essentially put the victim on trial. In response to these abuses, the federal government and the states enacted rape shield laws which were intended to end the abuses by limiting the harassing and embarrassing inquiries] of defense counsel into irrelevant prior sexual conduct of sexual assault complainants.

Commonwealth v. Smith, 410 Pa.Super. 363, 368, 599 A.2d 1340, 1342 (1991) (citation and quotations omitted). Thus, our Rape Shield Law is needed to “prevent irrelevant testimony relating to the victim’s past involvement in sexual activities from being presented to the trier of fact in order to protect the victim from being prejudiced because of unwarranted perception as to her moral character rather than based upon the facts of the case.” Commonwealth v. Riley, 434 Pa.Super. 414, 420, 643 A.2d 1090, 1093 (1994).

Pennsylvania appellate courts have also recognized, however, that “[tjhough laudable and long-overdue, Rape Shield [L]aws, if rigidly construed, could impermissibly encroach upon a defendant’s right to confront and cross-examine witnesses which is secured by the United States and Pennsylvania Constitutions.” Commonwealth v. Nieves, 399 Pa.Super. 277, 287, 582 A.2d 341, 346 (1990). In Commonwealth v. Wall, 413 Pa.Super. 599, 609-14, 606 A.2d 449, 454-57 (en banc), alloc. denied, 532 Pa. 645, 614 A.2d 1142 (1992), this Court reconciled these competing interests as follows:

The battle waged between the legislatively created Rape Shield Law and the constitutional right to confront and cross-examine witnesses is by now a familiar one in Pennsylvania. Both this Court and our Supreme Court have served as battlegrounds in this conflict many times before. The task of resolving such disputes, however, remains difficult____
On their face, the two authorities at issue herein may seem to share no common interests.... Examined more closely, however, the purposes of the authorities may be, at least in part, reconciled---- The search for truth, therefore, is a common bulwark upon which both the Rape Shield Law and the Confrontation Clause are built. Thus, in many cases, the intent of both the Rape Shield Law and the Confrontation Clause may be advanced without encroaching upon the other’s domain. We must recognize that the defense attorney who kindles the “great engine of cross-examination” to harass or embarrass the victim/witness does so to conceal rather than unveil the truth. Nothing within either the terms or the history of the Confrontation Clause could in any way be interpreted to protect such misguided defense strategy, and thus the operation of the Rape Shield Law in such cases remains unhindered....
It is only where the truth determining process is not forwarded by the exclusion of past sexual history that the Rape Shield Law and the Confrontation Clause may not be reconciled---- In such rare cases, the Rape Shield Law must bow to the need to permit an accused an opportunity to present genuinely exculpatory evidence.

Id. at 609-14, 606 A.2d at 454-57 (citations and quotations omitted).

Thus, “the protection afforded to the complainant by the Rape Shield Law does not act to prohibit relevant evidence which may exculpate a defendant of the crime with which he is charged.” Commonwealth v. Spiewak, 533 Pa. 1, 8, 617 A.2d 696, 699 (1992). Consequently, “[wjhen the evidence of prior sexual conduct might tend to prove that the victim had a motive to fabricate the accusation, it should be admitted.” Commonwealth v. Reed, 435 Pa.Super. 36, 51, 644 A.2d 1223, 1230 (1994), alloc. denied, 540 Pa. 580, 655 A.2d 512 (1995). “Admitting such evidence for the limited purpose of denying the act charged properly balances the goals of the Rape Shield Law with an accused’s fundamental right to present in defense his own version of the facts.” Spiewak, supra.

Our state’s appellate courts have developed an elaborate procedure through which potentially exculpatory evidence, which would otherwise be excluded by the Rape Shield Law, must pass before being admitted at trial.

The process begins with the defendant submitting a specific proffer to the court of exactly what evidence he or she seeks to admit and precisely why it is relevant to the defense. This procedure forces the defendant to frame the precise issues and interests involved, and prevents him or her from embarking upon “fishing expedition style intrusions on the Rape Shield law protections.” Where the proffer is but vague and conjectural, evidence of the victim’s past sexual conduct will be excluded and no further inquiry need be entertained.

Wall, 413 Pa.Super. at 614, 606 A.2d at 457 (emphasis original) (citations omitted).

Instantly, Weber filed pre-trial motions on May 6,1994. On September 7, 1994, Weber submitted supplemental pre-trial motions which contained his proffer concerning Daughter’s abortion. Specifically, Weber stated that he sought to introduce the following fact at trial:

B. The Complainant had an abortion at Temple University Health Center in Philadelphia, PA in September, 1993.
1. This act of abortion is an act that would not be condoned by the Defendant. Furthermore this act would cause great tension between the Complainant and the Defendant.
2. This fact would show bias by the Complainant towards the Defendant.
3. This evidence is relevant to the defense of fabrication that will be presented at trial.

Supplemental Pre-trial Motion, 9/7/94 at 2-3.

While Weber’s proffer may have been brief, we cannot find that it was vague or conjectural. Weber set forth the specific evidence sought to be introduced, ie., Daughter’s September 1993 abortion, and the relevance of this evidence to the defense, ie., Daughter’s fabricating the sexual assault charges in order to avoid a potential clash with Weber once he learned of the abortion. As such, we find that Weber’s proffer in support of admitting evidence of the abortion was adequate. Wall, supra. Cf. Commonwealth v. Sanders, 420 Pa.Super. 479, 617 A.2d 5 (1992) (proffer which failed to state specific acts of prior sexual contact held insufficient).

Submitting a proper proffer, however, is but the first step in conquering the procedural rigors of admitting this evidence. “Where the proffer is sufficiently specific, the court must then undertake a three part analysis of the substance of the proffer.” Wall, 413 Pa.Super. at 615, 606 A.2d at 457. In completing this analysis, the trial court is required to conduct an in camera hearing at which it must

determine the following as a matter of record to be preserved for appellate review: (1) whether the proposed evidence is relevant to show bias or motive or to attack credibility; (2) whether the probative value of the evidence outweighs its prejudicial effect; and (3) whether there are alternative means of proving bias or motive to challenge the credibility.

Commonwealth v. Black, 337 Pa.Super. 548, 557-58, 487 A.2d 396, 401 (1985) (en banc). Thus, where “the proffered evidence excluded by the Rape Shield law is relevant, noncumulative, and more probative than prejudicial, it must be admitted.” Wall, 413 Pa.Super. at 615, 606 A.2d at 457.

The first element of the Black test, relevance, is met where the evidence “logically or reasonably tends to prove or disprove a material fact in issue, tends to make such a fact more or less probable, or affords the basis for or supports a reasonable inference or presumption regarding the existence of a material fact.” Commonwealth v. Boyles, 407 Pa.Super. 343, 353, 595 A.2d 1180, 1185 (1991), alloc. denied, 531 Pa. 651, 613 A.2d 556 (1992).

Instantly, Weber sought to introduce the testimony of Michael Weber, Jr. (appellant’s son and Daughter’s brother) and Michelle LeBar (Michael, Jr.’s girlfriend) concerning a telephone conversation they had had with Daughter on the evening of September 20,1993. During the course of this conversation, Daughter revealed to the couple that she was pregnant and planning to have an abortion. More importantly, Daughter pled with the couple not to disclose this information to the appellant because she feared being beaten once Weber became aware of the news. Appellant argues, and we agree, that Daughter’s fear of the potential beating was relevant as it established a motive for her to fabricate the sexual assault charges. The timing of her phone conversation is crucial. The conversation occurred September 20, 1993, and Daughter first reported the alleged sexual abuse two months later, on November 20, 1993. The sequential order and proximity in time of these events clearly lend themselves to the logical conclusion that the sexual assault allegations were motivated by Daughter’s fear of potential punishment.

Further, Daughter carries a history of submitting false reports to the police in order to avoid expected beatings by her father. In April of 1990, Daughter reported to the Pen Argyl Police Department that she had been kidnapped by two Puerto Rican males in a black van. It was not until the next morning that, under intense questioning by the police, Daughter admitted that she had fabricated the story in an attempt to avoid her father’s anger concerning her poor report card grades.

In light of the above, we find that evidence of Daughter’s fear of Weber’s reaction to her planned abortion was clearly relevant in establishing her motive for fabricating the sexual assault allegations. See Black, supra (evidence of daughter’s sexual relationship with her brother was held relevant in establishing a motive for her to fabricate sexual abuse charges against their father where father had recently thrown the brother out of the family home); Wall, supra (evidence that victim had previously participated in the successful prosecution of a former abuser which resulted in her removal from her mother’s home was held relevant in establishing her motive to fabricate sexual assault charges against her uncle where victim sought removal from her disciplinarian aunt and uncle’s house).

The second prong of the Black test is whether the probative value of the evidence outweighs its prejudicial effect. Instantly, we do not doubt that the offered evidence would have, had a prejudicial impact on Daughter independent of the purpose for which it was offered.

[TJhere is ... a persistent belief among some people that a woman or girl would not be assaulted unless she provoked the assault by acting promiscuously or deliberately placed herself in a situation where an assault could be anticipated. This is particularly so when the parties are known to each other. We have not yet completely disabused the public mind perception that an assault victim is somehow to blame for the assault, and this is even more so with child victims who, due to naivete or poor supervision, find themselves unprotected and dangerously vulnerable.

Smith, 410 Pa.Super. at 372-73, 599 A.2d at 1344 (quotation omitted).

While evidence of Daughter’s pregnancy and planned abortion would unfortunately raise issues concerning her moral character, this evidence was also critical in establishing her motive for fabricating the charges against the defendant. While the Commonwealth did present witnesses who testified that they had observed bruises upon Daughter’s body, no-one directly corroborated Daughter’s testimony concerning the years of alleged sexual abuse. In fact, every family member testified that they never witnessed, nor suspected, Weber acting sexually towards his daughter. Moreover, Weber took the witness stand and flatly denied the acts his daughter had accused him of committing. As such, Daughter’s credibility was the foundation for the Commonwealth’s case against Weber. Under these circumstances, evidence of Daughter’s motive to lie may have very well been the difference between Weber’s freedom or incarceration. Consequently, we find that the offered evidence’s significant probative value outweighed any prejudicial effect it may have had in this case.

The final prong of the Black test is whether other evidence, which would not otherwise be precluded by the Rape Shield Law, exists to prove the witness’s bias or motive. Instantly, as conceded by the Commonwealth, an abundance of evidence was introduced at trial which reflected poorly upon Daughter’s credibility. Particularly damaging were Daughter’s own inconsistencies regarding important dates and her prior false kidnapping report to the police. This evidence, however, remains distinct from the motive of avoiding a beating specifically concerning Daughter’s pregnancy and planned abortion. Thus, we cannot say that any of the existing evidence, which subjected Daughter’s credibility to question, was cumulative of the evidence of her fear of being beaten once her father learned of her pregnancy and planned abortion.

In sum, we find that Weber has successfully established all of the elements of the Black test. Despite this finding, we note that the Commonwealth makes much of the fact that, at trial, Weber testified that he only slapped Daughter a few times and denied that any continued physical abuse had occurred. As such, the Commonwealth concludes that it would have been inconsistent to allow the defense to present evidence that Daughter was motived to fabricate the sexual abuse charges in order to avoid a beating by her father. We disagree.

Establishing a witness’s motive to lie is essentially an examination of the witness’s state of mind. Here, Weber contends that Daughter fabricated the allegations out of fear. Fear, however, is subjective. Thus, whether a history of physical abuse actually existed is an independent question from whether Daughter genuinely feared a beating. While evidence of a history of physical abuse would clearly lend itself to the conclusion that Daughter actually feared being beaten, absence of such evidence does necessarily mean that genuine fear did not exist. Weber presented direct evidence as to Daughter’s subjective state of mind concerning her fear of being beaten by appellant. Not only did she demonstrate such fear in 1990 when she admitted to the police that she submitted a false report of kidnapping in order to avoid her father’s anger with her poor grades, Daughter also admitted to two witnesses that she specifically feared being beaten by Weber once he learned of her pregnancy and planned abortion. As such, we cannot find that the direct evidence of Daughter’s subjective fear was inconsistent with Weber’s testimony that no history of abuse existed. Consequently, we find that the proffered evidence should have been properly admitted at trial.

The fact that Weber’s proffered evidence should have been properly admitted at trial, however, does not serve to terminate our review of the present case. Although appellate counsel for the defendant characterizes this case as a violation of Weber’s constitutional right to confront his accuser, a review of the record reveals that Judge Panella did allow defense counsel to question Daughter concerning her admissions to Michael Weber, Jr. and Michelle LeBar. Specifically, defense counsel questioned Daughter as follows:

Q. Now, at some time in September of 1993, you had an abortion; is that correct?
A. Yes, it is.
Q. And after you had that abortion, which was done in Philadelphia, correct—
A. Yes.
Q. —you called Mike Weber and Michelle — Mike Weber Junior, your brother, and his girlfriend about that; isn’t that correct?
A. I called them when I found out I was pregnant.
Q. And, in fact, I think you called them, if I’m not mistaken, on or about September the 20th, right around your birthday; isn’t that correct?
A. I found out on my birthday that I was pregnant.
Q. And you talked to them on the phone that night?
A. Yes.
Q. Didn’t you tell them, Miss Weber, that please don’t tell my parents, please don’t especially tell my father that I’m pregnant, that I’m going to have an abortion because I know he’ll beat me if you tell him?
A. Yes, I did.

N.T., 5/9/95 at 201-202.

In light of this questioning, we cannot find that Weber’s right to confront was infringed upon. What is problematic, however, is the fact that after allowing the above cross-examination to occur, Judge Panella precluded Weber’s defense counsel from 1) presenting the testimony of Michael Weber, Jr. and Michelle LeBar concerning Daughter’s admissions, and 2) commenting on Daughter’s fear of being beaten as a result of her pregnancy and planned abortion during summation. These prohibitions constitute error by the trial court.

The error of refusing to allow Michael Weber, Jr. and Michelle LeBar to testify about their conversation with Daughter, however, is not fatal. While it was a mistake to preclude this testimony, nevertheless, Daughter, herself, admitted to the contents of the conversation. As such, the testimony of Michael, Jr. and his girlfriend would have been merely cumulative and we deem its prohibition harmless. See Commonwealth v. Hradesky, 170 Pa.Super. 24, 29, 84 A.2d 393, 396 (1951) (“Any error that may have resulted from the exclusion of defense testimony at one point was harmless as appellant was given full opportunity to make denials and explanations at another.”); Commonwealth v. Balles, 163 Pa.Super. 467, 471-72, 62 A.2d 91, 93 (1948) (“under the circumstances we feel that no reversible error was committed insomuch as the answers sought to be elicited by the defendant from [the witness] did actually come from her elsewhere in the course of her examination or were testified to positively by the defendant.”). See also Commonwealth v. Neill, 362 Pa. 507, 516, 67 A.2d 276, 280 (1949) (it was error to preclude certain public records from evidence, “but their partial exclusion worked no substantial damage to defendant because all the material portions of their contents were brought out in the testimony of defendant himself or of other witnesses.”).

The fact that defense counsel was limited in his closing argument, however, does constitute a fatal error. Statements which have been properly placed into evidence can be “referred to, quoted, or emphasized by either counsel during closing arguments.” Commonwealth v. Stark, 363 Pa.Super. 356, 373, 526 A.2d 383, 392 (1987), alloc. denied, 517 Pa. 622, 538 A.2d 876 (1988). Further, counsel may argue inferences which reasonably derive from evidence properly admitted at trial. Commonwealth v. Lawson, 519 Pa. 175, 180, 546 A.2d 589, 596 (1988). Instantly, we have found that evidence that Daughter feared being beaten by Weber as a result of her pregnancy and planned abortion was properly admitted at trial. Consequently, defense counsel should have been allowed to comment upon this evidence and to draw for the jury the logical inference that Daughter fabricated her story in an attempt to avoid this specific beating. Moreover, the prejudicial effect of this omission cannot be overstated. “There can be no doubt that closing argument for the defense is a basic element of the adversary fact-finding process in a criminal trial.” Herring v. New York, 422 U.S. 853, 858, 95 S.Ct. 2550, 2553, 45 L.Ed.2d 593, 598 (1975). As previously found by this Court,

[i]t could very well be the case that a fact finder will have a definite opinion on a witness’s credibility immediately after hearing the witness testify but change that opinion when, during oral argument, counsel points out something to the fact finder that causes him to change that opinion. It is often impossible to state with certainty the exact point when one forms an opinion on any matter.

Commonwealth v. Lowery, 276 Pa.Super. 569, 581, 419 A.2d 604, 610 (1980). Thus, we find that the trial court committed a prejudicial error in prohibiting defense counsel from commenting upon Daughter’s fear of being beaten once Weber learned of her pregnancy and planned abortion. This error clearly deprived Weber of a fair trial, and, consequently, we must vacate Weber’s judgment of sentence and remand this case for retrial.

Judgment of sentence vacated, case remanded for retrial. Jurisdiction relinquished.

EAKIN, J., filed a dissenting opinion.

EAKIN, Judge,

dissenting.

I respectfully dissent from the ruling of my colleagues, which reverses appellant’s conviction and grants a new trial.

I agree completely that evidence of an abortion is necessarily evidence of prior sexual activity, so as to bring it within the scope of the Rape Shield Law. Abortion does not arise without sexual activity, and if the latter is inadmissible, to treat evidence of the former differently would defeat the law’s intent. Commonwealth v. Berkowitz, 537 Pa. 143, 641 A.2d 1161 (1994). Thus, the evidence of abortion should have been excluded, unless it had probative value outweighing its inherent prejudice. See, e.g., Commonwealth v. Black, 337 Pa.Super. 548, 487 A.2d 396 (1985).

In this case, the defense posits a theory that the victim fabricated the charges, motivated by fear of being beaten by appellant should he learn she had an abortion. Evidence of such a motive to falsify would be probative. Commonwealth v. Reed, 435 Pa.Super. 36, 644 A.2d 1223 (1994). Therefore, to determine the admissibility of evidence of the abortion, the trial court must weigh the probative value of the otherwise excludable testimony against the prejudice toward the victim that admission would cause.

My colleagues determine that any prejudice was outweighed by the probative value, and that the evidence should have been admitted, thus finding error. I do not find that the trial court was in error in excluding the evidence, as I believe appellant himself directly negated the theory that made the abortion testimony potentially relevant in the first place.

This issue did not arise suddenly at trial. It was the subject of a pretrial proceeding and ruling, whereby the court stated it would consider the evidence of abortion only if there was independent evidence of the victim’s fear that physical abuse would ensue. That is, the relevance of the abortion is nonexistent unless the fear of a retaliatory beating is otherwise established. Without that fear, there is no probity in the proffered evidence.

The trial judge ruled that if this theory (fear of beating from her father) was not established by independent evidence, rather than merely alleging the theory, the manifestly prejudicial testimony of abortion would not be allowed. To rule otherwise would allow any self-serving theory from a defendant to bootstrap all sorts of slander into evidence without corroboration or any hint of trustworthiness of the prejudicial allegations.

Had appellant admitted thrashing his daughter over the years, his “theory” might hold water; the other evidence of bruising might be corroborative enough to allow admission of the evidence he sought to introduce. However, he denied such abuse at trial; appellant took the stand and personally repudiated any physical abuse that would cause his daughter to fear a beating. When he personally disavowed the factual basis of his theory, he took any wind of probative value out of the sails of admissibility.

The law clearly allows one to present multiple and inconsistent defenses, but the introduction of highly prejudicial and otherwise inadmissible evidence should not be countenanced when the defense theory of relevance is specifically refuted by the proponent himself. See, e.g., Commonwealth v. Mayfield, 401 Pa.Super. 560, 585 A.2d 1069 (1991) (while a defendant has no burden to prove claim of self-defense, he may not testify inconsistently with, or negate an element of, the defense and still avail himself of it).

As such, I would affirm the trial court’s decision that appellant not only failed to make out the victim’s fear of a beating, he negated its very existence under oath and nullified any probative value in the evidence of abortion. That this evidence came in at all through cross-examination of the victim is more than the defense was entitled to.

My colleagues find the court in error, but find that error to be harmless (a question I need not reach), as the evidence came in despite the ruling, under cross-examination of the victim. They reverse because of the trial court’s purported preclusion of closing argument on the issue. Appellant states his issue thusly;

DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN DENYING DEFENDANT’S REQUEST TO INTRODUCE TESTIMONY CONCERNING A FABRICATION DEFENSE THROUGH A MISAPPLICATION OF THE RAPE SHIELD LAW?

This issue has not been raised before us. Appellant has not heretofore complained of preclusion of closing argument, and if he wished us to consider that ruling, he should have raised it timely in his Statement of Matters Complained of on Appeal. Thus he has chosen not to appeal that issue, which is therefore waived. The Commonwealth has not been alerted to address the issue, nor has the trial court had the opportunity to provide its insight into this. As we have answered the issue raised, I would not endeavor to consider matters not complained of.

      . 18 Pa.C.S.A. § 3121(1).

      . 18 Pa.C.S.A. § 3122.

      . 18-Pa.C.S.A. § 3123(1).

      . 18 Pa.C.S.A. § 3125(1).

      . 18 Pa.C.S.A. § 3126(A)(1).

      . 18 Pa.C.S.A. § 6301.

      . We note that Weber also contends that the Daughter was motivated to fabricate the sexual assault allegations by her fear of losing her father’s monetary support once he learned of her pregnancy and planned abortion. This argument is nonsensical. Clearly, filing false sexual assault claims against her father would inevitably result in his refusing any continued financial support. Moreover, the record is devoid of any evidence that Daughter did, in fact, fear loss of financial support as a consequence of her father discovering her pregnancy and planned abortion.

      . We do not intend our ruling as a declaration that a defendant may now introduce every instance the child/victim’s past sexual conduct under the guise that the child’s allegations of sexual assault were motivated by fear of punishment. To do so would "effectively remove children from the protections of the [R]ape [S]hield [L]aw by finding child victims likely to cry ‘rape’ when confronted by evidence of sexual activity, rather than deal with the possible anger of parents or guardians.” Smith, 410 Pa.Super. at 373, 599 A.2d at 1345. Rather, in most cases the prejudicial effect of this evidence will outweigh its probative value. Nevertheless, where, at the in camera hearing, the defendant offers independent evidence that the victim genuinely feared punishment, and that such fear was so great that the child would take the extraordinary step of fabricating sexual assault charges to avoid the punishment, we find that the probative value of the victim’s past sexual conduct outweighs its prejudicial effect. Weber has met this heavy burden in the instant case.

      . Judge Panella took these steps upon finding that such evidence would have been inconsistent with Weber’s testimony that he had not physically abused Daughter. As noted above, however, we find that Weber’s testimony was, in fact, consistent with Daughter’s subjective fear of being beaten.

      . We note that Pennsylvania courts have only adopted the above standards in cases where the prosecution’s closing argument was in question. This fact is not surprising because, as noted by our brethren in Massachusetts,
      [o]pinions discussing acceptability of particular jury arguments usually involve challenges to prosecutor’s closing arguments. Because the Commonwealth may not appeal from any possible adverse consequences of a defendant's improper jury argument, the propriety of a defense counsel’s jury argument usually arises only when a convicted defendant challenges some ruling or jury instruction by the trial judge concerning defense counsel’s argument.

        Commonwealth v. Murchison, 418 Mass. 58, 59, 634 N.E.2d 561, 562 (1994).
      In any event, we find that these standards apply equally to the closing arguments of both the defense and the prosecution. As stated by the Supreme Court of our land, "it should be accepted that both the prosecutor and defense counsel are subject to the same general limitations in the scope of their argument.” United States v. Young, 470 U.S. 1, 8-10, 105 S.Ct. 1038, 1042-43, 84 L.Ed.2d 1, 9 (1985).

      . Even if properly before us, my resolution of the primary issue would make the question of closing argument moot, and my result would still be to affirm conviction.


source: Caselaw Access Project

author: JOHNSON, Judge:

license: Public Domain

text:
    675 A.2d 306
    In re ESTATE OF Helen U. GENIVIVA, Deceased. APPEAL OF Nick A. FRISK, Jr. In re ESTATE OF Helen U. GENIVIVA, Deceased. Appeal of Cosmo S. GENIVIVA, Jr., Executor of the Estate of Helen U. Geniviva.
    Superior Court of Pennsylvania.
    Argued Feb. 6, 1996.
    Filed April 15, 1996.

      Frank G. Verterano, New Castle, for Frisk.
    Robert C. Tourek, Pittsburgh, for Estate of Geniviva.

      Mark F. Geary, Washington, for Brian and Marilyn Geniviva, participating parties.
    Before TAMILIA, JOHNSON and HESTER, JJ.
   JOHNSON, Judge:

In these consolidated appeals, we are asked to determine whether a former attorney for the executor of an estate may appeal from a decree which sanctioned the executor of that estate for mismanagement. We also consider whether an executor may be excused from liability for any surcharges that resulted from his alleged reliance upon advice of counsel. Because we find that the attorney could not properly appeal from the present decree, we dismiss his appeal. Further, we conclude that the Orphans’ Court did not err when it sanctioned the executor for mismanagement of the decedent’s estate. Accordingly, we affirm.

Helen U. Geniviva (decedent) died testate on April 24, 1981, with an estate valued in excess of $600,000. Soon thereafter, her son, Cosmo S. Geniviva (the executor) was granted letters testamentary naming him executor of her estate. The executor retained Nick A. Frisk, Jr. as counsel for the estate and, before any substantial work had been done on the administration of the estate, paid him a fee of $40,000. In addition, the executor immediately paid himself a like sum of $40,000 as executor’s compensation/ Neither the executor nor Frisk timely filed an accounting, an inventory of the estate, or the required Pennsylvania and federal estate tax returns. In 1989, decedent’s other children, Brian and Marilyn Geniviva (the beneficiaries), petitioned the Lawrence County Orphans’ Court to issue a citation ordering the executor to file an amended inventory and a full accounting of the estate. In their petition, the beneficiaries alleged that Frisk and the executor were fraudulently delaying the final disposition of the decedent’s estate. Following a hearing, the court issued the citation and ordered the executor to comply within 60 days. However, the executor did not comply; rather, through new counsel, he petitioned the court to permit him to withdraw as executor of the estate. The court denied his petition, noting that the executor could not withdraw until he complied with the citation.

Thereafter, the executor filed a document that he styled as the final accounting of the estate, and the beneficiaries filed exceptions to that accounting. On April 19, 1994, the court filed a Memorandum Opinion and Decree Nisi, ordering the executor to reimburse the estate for all sums that the estate was required to pay in back taxes, interest, and penalties due to his mismanagement of the estate. The court also ordered the executor to reimburse the estate for the majority of his executor’s fee as well as most of the counsel fees that he paid to Frisk. The executor and the beneficiaries filed exceptions to the decree nisi. Although Frisk no longer represented the estate or its executor, and did not file his own exceptions, he filed a brief in support of the executor’s exceptions. At a hearing on the beneficiaries’ exceptions, the court heard oral argument from the beneficiaries, the executor, and Frisk. On June 26, 1995, the court entered a final decree that denied the executor’s exceptions, awarded the beneficiaries counsel fees, awarded the estate interest on the surcharge applied to the executor, and finalized in all other respects the decree nisi. The court noted, however, that it was unable to determine the exact amount of counsel fees to award because the relevant evidence was not included in the transcribed notes of testimony. Frisk then appealed to this Court. After the missing notes of testimony were transcribed and filed with the court, the Orphans’ Court amended the final decree and directed the executor to pay the beneficiaries $20,675.66 in counsel fees. Subsequently, the executor appealed the amended final decree to this Court.

Frisk’s Appeal Docketed at No. 1329 Pittsburgh, 1995

On appeal, Frisk, in essence, contends that the Orphans’ Court erred in calculating the damages sustained due to his failure to timely liquidate the estate’s stocks. Frisk also claims that the Orphans’ Court did not have jurisdiction to amend its final decree after an appeal had been lodged from that decree to this Court.

We are precluded from reaching the merits of Frisk’s claims, however, because he does not have standing to bring this appeal. Rule 501 of the Pennsylvania Rules of Appellate Procedure provides, in pertinent part, that “any party who is aggrieved by an appealable order ... may appeal therefrom.” A party is defined by the Judicial Code as “[a] person who commences or against whom relief is sought in a matter.” 42 Pa.C.S. § 102. In an action relating to the administration of an estate, the only party is the estate.

Here, Frisk does not represent the estate. The mere fact that Frisk filed a brief in support of the executor’s exceptions and appeared at oral argument on those exceptions does not make him a party to this action. See Silver Spring Twp. v. Pennsy Supply, Inc., 149 Pa.Cmwlth. 314, 319-20, 613 A.2d 108, 111 (1992) (“[0]ne, who is not a named party to an action ... cannot become a party to an action by the simple expedience of walking into the office of the prothonotary and filing his appearance in any one or more of the multitude of open actions on file.”) Thus, we conclude that Frisk is not a party to this appeal.

Even if Frisk were a party to the instant case, he would not be an aggrieved party. “The requirements of ‘aggrievement’ are that a party have a direct interest in an immediate consequence of the judgment from which an appeal is taken.” Tripps Park Civic Ass’n. v. Pennsylvania Pub. Utility Commission, 52 Pa.Cmwlth. 317, 322, 415 A.2d 967, 970 (1980). See also Venango Newspapers v. Unemployment Compensation Bd. 158 Pa.Cmwlth. 379, 383, 631 A.2d 1384, 1386 (1993) (“If the order causes direct harm, the party is aggrieved and has a right to appeal.”); Green by Green v. SEPTA, 380 Pa.Super. 268, 271, 551 A.2d 578, 579 (1988) (“To be ‘aggrieved’ a party must have been adversely affected by the decision from which the appeal is to be taken.”) The Orphans’ Court decree does not direct Frisk to take any action whatsoever with respect to the decedent’s estate. Only the executor is surcharged by the court order and final decree. Thus, Frisk is not an aggrieved party. Accordingly, we will not entertain the issues raised in his brief.

The appeal at No. 1329 Pittsburgh, 1995 is DISMISSED.

The Executor’s Appeal Docketed at No. 1532 Pittsburgh 1995

On appeal, the executor raises five issues for our review:

I. DUE TO [FRISK’S] NEGLIGENCE AND DISHONESTY, SHOULD THE [EXECUTOR BE] EXCULPATED FROM LIABILITY FOR THE FRAUD PENALTY PLUS INTEREST FROM AUGUST 1, 1987, AND FOR ALL THE INTEREST ASSESSED AND ACCRUING ON THE ESTATE TAX CURRENTLY OWED BY THE ESTATE SINCE JANUARY 24,1982?
II. DUE TO [FRISK’S] NEGLIGENCE, SHOULD THE [EXECUTOR] BE EXCULPATED FROM LIABILITY FOR THE $87,958.16 IN STOCK LOSSES INCURRED BY THE ESTATE?
III. WAS THE [EXECUTOR] ENTITLED TO THE COMPENSATION PAID HIM FOR SERVING AS EXECUTOR FOR THE ESTATE?
IV. SHOULD THE [EXECUTOR’S] NEW ATTORNEY HAVE BEEN AWARDED COUNSEL FEES FOR PAST AND FUTURE SERVICES RENDERED ON BEHALF OF THE [EXECUTOR] AND THE ESTATE?
V. SHOULD THE [EXECUTOR] HAVE BEEN SURCHARGED FOR BRIAN GENIVIVA’S READY ASSET ACCOUNT?

Brief for Appellant at 2.

When reviewing a decree entered by the Orphans’ Court, this Court must determine whether the record is free from legal error and the court’s factual findings are supported by the evidence. In re Estate of Braun, 437 Pa.Super. 372, 376, 650 A.2d 73, 75 (1994). Because the Orphans’ Court sits as the fact-finder, it determines the credibility of the witnesses and, on review, we will not reverse its credibility determinations absent an abuse of that discretion. Id. Moreover, although our review of the court’s factual findings is limited to considering whether those findings have support in the record, we are not constrained to give the same deference to any-resulting legal conclusions. Id. at 377, 650 A.2d at 76.

As his first issue, the executor contends that he should not be liable for any surcharges or penalties in connection with his failure to file estate taxes because these charges resulted from attorney Frisk’s negligent advice concerning the need for estate tax returns. We disagree.

An executor, as a fiduciary of the estate, “is required to use such common skill, prudence and caution as a prudent man, under similar circumstances, would exercise in connection with the management of his own estate.” In re Estate of Lohm, 440 Pa. 268, 273, 269 A.2d 451, 454 (1970). Further, the executor has the duty to pay the federal estate tax, and neglect of this duty will result in the executor’s personal liability. In re Estate of Maurice, 433 Pa. 103, 249 A.2d 334 (1969). In addition, a surcharge may be imposed on the executor to compensate the estate for any losses incurred by the executor’s lack of due care. In re Dobson’s Estate, 490 Pa. 476, 417 A.2d 138 (1980). When seeking to impose a surcharge against an executor for the mismanagement of an estate, those who seek the surcharge bear the burden of proving the executor’s wrongdoing. Lohm, supra. However, where a significant discrepancy appears on the face of the record, the burden shifts to the executor to present exculpatory evidence and thereby avoid the surcharge. Id. Although the court will consider that the executor acted upon the advice of counsel in determining whether he acted in good faith, this does not provide the executor with complete immunity to a surcharge. Id. at 275, 269 A.2d at 455. The analysis regarding the executor’s reliance on the advice of counsel is twofold: first, was the initial choice of counsel reasonably prudent under the circumstances, and, second, was the subsequent decision to continue to rely upon this counsel’s advice a reasonably wise and prudent choice. Id.

In his brief to this Court, the executor places all of the blame for failure to pay the estate taxes on Frisk, asserting that Frisk assured him that the estate did not owe any federal estate taxes. Further, the executor claims that Frisk asked him to sign a false affidavit which stated that the executor had personally filed the tax returns. Finally, the executor maintains that Frisk simply did not understand many of the issues involved in settling an estate of this magnitude.

In spite of these claims, however, the executor does not dispute that federal estate tax returns and Pennsylvania inheritance tax returns were not filed until 1985, almost four years after the decedent’s death. The Orphans’ Court found that the executor, “who testified that he hired an accountant to prepare his own income tax returns, was clearly aware of the duty of all citizens to pay taxes----” Memorandum Opinion and Decree, April 19, 1994, at 7. Both Pennsylvania and federal estate taxes become due at the date of death, and the executor is given nine months to file the estate tax return. 72 P.S. § 9145(c); 26 U.S.C. § 6075(a). Thus, we find that the Orphans’ Court could have reasonably concluded that the executor knew that the estate would have to file tax returns.

In addition, because a significant penalty has been imposed upon the estate for its failure to comply with federal and state estate tax laws, the burden shifts to the executor to explain how his reliance on Frisk’s alleged expertise in these matters establishes that he acted with the skill and caution of the reasonably prudent man. Lohm, supra. The executor cites to no Pennsylvania case law to support his proposition that he acted reasonably. Even assuming that the initial retention of Frisk as counsel for the estate was prudent, we cannot conceive how it was a reasonable or wise choice to continue to employ Frisk to advise him on the administration of the estate. Frisk not only failed to properly advise the executor regarding the filing of the proper tax returns, he also failed to advise him of the necessity for timely preparation of an inventory of the estate. This document was not filed until three and one-half years after it was due. Moreover, Frisk failed to insure that a final accounting was prepared for the estate. In fact, this final accounting was not filed until after the present suit was commenced, in 1989. Frisk was paid $40,000 by the estate. The executor was also paid $40,000. “It is only reasonable and logical to expect that services so well compensated for should have been performed in a careful and skillful manner.” Maurice, supra, at 108, 249 A.2d at 336. Thus, we conclude that the executor’s reliance on counsel does not provide him with immunity to the surcharge in this instance.

We conclude that the executor has utterly failed to competently perform his duties concerning this estate, and he has failed to present exculpatory evidence that will avoid a surcharge regarding the penalties and interest due to the failure of the estate to pay its taxes. The ultimate responsibility for the payment of estate taxes falls upon the executor. Id. Because we find that the executor has failed to use the common skill and caution that a prudent man in similar circumstances would have used in the management of his own estate, Lohm, supra, we conclude that the Orphans’ Court did not abuse its discretion when it surcharged the executor for these charges.

Next, the executor contends that he should not be held responsible for the losses incurred by the estate when the sale of certain stocks resulted in a loss in value due to the delay in liquidation.

The Probate, Estates, and Fiduciaries Code provides: “Subject to his duty to liquidate the estate for prompt distribution and to the provisions of the will, if any, the personal representative may invest the funds of the estate but shall have no duty to do so.” 20 Pa.C.S. § 3316. Normally, this duty to liquidate the estate should be executed within six months following the first advertisement of the grant of letters; however, this time period is not absolute and the executor must exercise common prudence, caution and skill in liquidation. 2 Charles W. Frampton, Remick’s Pennsylvania Orphans’ Court Practice, 200 (1992).

It is undisputed that the decedent, at the time of her death, owned various securities with a value of $187,803.66. The executor and the beneficiaries held a conference in the summer of 1981, during which they decided that the stocks should be sold as soon as possible. Memorandum Opinion and Order, June 26, 1995, finding of fact no. 32, at 6. However, although the executor delivered the stock certificates to a broker in September 1981, he failed to authorize the sale of those certificates until April 1982. Id. At that time, the stock was sold for $100,345.50, resulting in a loss of $87,458.16 to the estate. The Orphans’ Court surcharged the executor for this entire amount.

The executor asserts that he acted in accordance with the dictates of the prudent man rule as set forth in 20 Pa.C.S. § 7302(b). This rule permits a fiduciary to retain an interest in an investment without suffering from personal liability so long as he exercises the level of care “which men of prudence, discretion and intelligence exercise in the management of their own affairs____” However, this portion of the Probate, Estates, and Fiduciary Code does not apply to an individual acting as a personal representative. 20 Pa.C.S. § 7301. Again, the executor has failed to explain how his actions were reasonable under these circumstances. He did not authorize sale of the stock for one full year following decedent’s death. If the estate had been liquidated for prompt distribution as required by 20 Pa.C.S. § 3316, the stock should have been sold no later that six months following decedent’s death, or October 1981. Although the executor blames Frisk for failing to avoid the loss, we have already found that it was not prudent for the executor to continue to rely upon Frisk’s advice. Accordingly, we conclude that the Orphans’ Court did not abuse its discretion when it imposed the surcharge on the executor for the losses to the estate which resulted from his failure to timely liquidate the securities. See, e.g., In re Jones Estate, 400 Pa. 545, 162 A.2d 408 (1960) (surcharge on executor was proper where the executor converted all of decedent’s assets into cash and did not distribute or invest this money for over four and one-half years, thus causing a substantial loss in value to the estate).

In the alternative, the executor asserts that only one-half of the losses should be surcharged because he would have been deemed to have acted prudently if he had sold the stock within six months of decedent’s death. However, the executor does not present any evidence to support his implied claim that the losses to the estate occurred in a “straight line.” Moreover, the record does not demonstrate that the losses occurred steadily throughout the year. The Orphans’ Court made a credibility determination that the proper amount of the surcharge was for the entire amount of the loss. On review, with the state of the record in this case, we will not disturb this determination. Accordingly, we will not reduce the amount of this surcharge.

As his third issue, the executor contends that he is entitled to the entire fee that he received for serving as executor of the estate. It cannot be disputed that the executor of an estate is entitled to “such compensation ... as shall be reasonable and just----” 20 Pa.C.S. § 3537. The basis for determining whether compensation is reasonable depends upon the value of the services actually rendered. In re Estate of Rees, 425 Pa.Super. 490, 625 A.2d 1203 (1993). Further, “executors seeking compensation from an estate have the burden of establishing facts which show the reasonableness of their fees and entitlement to the compensation claimed.” Id. at 497, 625 A.2d at 1206. In addition, the determination of whether the executor’s fees are reasonable is left to the sound discretion of the Orphans’ Court, and we will not disturb its determination absent a clear error or an abuse of discretion. Id. Finally, the Orphans’ Court “also has the authority to reduce to a ‘reasonable and just’ level those fees and commissions claimed by the fiduciary and their counsel.” Id.

In the present case, the executor claimed a $40,000 fee soon after the grant of letters testamentary. We have already determined that the executor failed to exercise common skill, prudence and caution in executing his duties concerning the management of his mother’s estate. In addition, the executor retained an attorney for a number of years who, by his failure to properly supervise the administration of the estate, contributed to significant losses to the estate. In his brief to this Court, the executor maintains that he is entitled to the entire fee because he “kept track of all of the assets of the estate, wrote over 150 checks to pay expenses and debts of the estate and kept track of all of the income of the estate.” Brief for Appellant at 13. However, the Orphans’ Court found, and we agree, that $40,000 is “unconscionable, outrageous and illegal in the face of this record which shows dereliction of duty, dilatory performance and the cause of serious financial loss to the estate and the beneficiaries.” Opinion, supra, at 8. Thus, we conclude that the Orphans’ Court did not err or abuse its discretion in reducing the executor’s fee to $5,000. Accord Lohm, supra (award of no attorney fees was proper when co-executors were guilty of gross negligence in causing severe tax penalties and interest to an estate).

Next, the executor asserts that he should be awarded counsel fees to pay the attorney hired to represent the estate after he fired Frisk. The award of counsel fees is within the sound discretion of the Orphans’ Court. In re Estate of Albright, 376 Pa.Super. 201, 545 A.2d 896 (1988), appeal denied, 522 Pa. 571, 559 A.2d 33 (1989). The Orphans’ Court judgment will not be disturbed except in cases of “palpable error.” Estate of Wanamaker, 314 Pa.Super. 177, 180, 460 A.2d 824, 825 (1983). In the present case, the Orphans’ Court order is silent on the issue of who is responsible for the fees of the second attorney. However, the services of the second attorney would not be necessary if the executor had properly administered the estate from the start. Because these additional fees are a direct result of the executor’s negligence in the administration of the estate, we find that it would be inequitable for the estate to assume these legal fees. Accordingly, we conclude that the Orphans’ Court’s failure to award the executor counsel fees was not palpable error.

Finally, the executor contends that he should not have been surcharged by the court for the $10,235 that had been in Brian Geniviva’s ready asset account at decedent’s death. This was an account jointly owned by the decedent and Brian Geniviva, with rights of survivorship. At the decedent’s death, the executor instructed Brian to withdraw the money in this account and give it to him for deposit in the estate checking account. The Orphans’ Court held that this was improper because this money was not a part of the estate. Thus, the court directed the executor to repay Brian Geniviva the sum of $10,235, less the applicable death taxes. The executor now contends that these were estate funds and that he properly paid estate debts with this money. Thus, he contends that he should not have to repay Brian Geniviva. We disagree.

Section 6304 of the Probate, Estates and Fiduciaries Code states, in pertinent part, that “[a]ny sum remaining on deposit at the death of a party to a joint account belongs to the surviving party or parties as against the estate of the decedent----” 20 Pa.C.S. § 6304(a). Thus, when the decedent died, the funds in the ready asset account belonged to Brian Geniviva, not to the estate. Accordingly, the Orphans’ Court did not err when it required the executor to repay Brian Geniviva these funds.

Based upon the foregoing, we affirm the order that denied the executor’s post-verdict motions and finalized the decree nisi that imposed a surcharge upon the executor.

Appeal at No. 1329 Pittsburgh, 1995 is DISMISSED.

Order at No. 1532 Pittsburgh, 1995 is AFFIRMED.


author: FORD ELLIOTT, Judge:

text:
    675 A.2d 314
    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.
    Superior Court of Pennsylvania.
    Argued Sept. 13, 1995.
    Filed April 17, 1996.

      Nancy L. Goldstein, Philadelphia, for appellants.
    Jay Lambert, Philadelphia, for Ches-Penn Health Services, appellee.
    Joseph H. Foster, Philadelphia, for Browngoehl, appellee.
    Before KELLY, FORD ELLIOTT and OLSZEWSKI, JJ.
   FORD ELLIOTT, Judge:

In this admittedly tragic case, we are asked to decide, under Pennsylvania law, the nature and extent of a physician’s duty to third persons when the physician undertakes the treatment and care of a patient with a contagious disease. Instantly, the trial court determined as a matter of law that a doctor has no duty to warn a patient with a highly contagious but ubiquitous viral infection that the patient should avoid contact with pregnant women whose unborn infants may be at risk of death or debilitating birth defects if they are exposed to the virus. The trial court granted appellees Ches-Penn Health Services and Kevin Browngoehl, M.D.’s motion for summary judgment basing its decision on this court’s opinion in Troxel v. A.I. duPont Institute, 431 Pa.Super. 464, 636 A.2d 1179 (1994) (Troxel I), allocatur denied, 538 Pa. 648, 647 A.2d 903 (1994). We reverse.

Summary judgment may only be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Pa.R.Civ.P.Rule 1035(b). The trial court must view the evidence, and all reasonable inferences to be drawn therefrom, in the light most favorable to the non-moving party, with any doubt resolved against the moving party. The trial court will be overturned only if there has been an error of law or a clear abuse of discretion. First Wisconsin Trust Co. v. Strausser, 439 Pa.Super. 192, 197, 653 A.2d 688, 691 (1995) (citations omitted). Our review of the record is, however, plenary. Keselyak v. Reach All, Inc., 443 Pa.Super. 71, 74-75, 660 A.2d 1350, 1352 (1995).

The facts and procedural history, taken from Troxel I, are set forth below:

On October 30, 1987, Mary Siple, a non-party, gave birth to a female child, Ashley [Smith]. Because Ashley was born with microcephaly [footnote omitted] and a pes cavus deformity of the leg, [footnote omitted] 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) [Footnote] and referred her to [the A.I.] duPont [Institute] for additional tests. At duPont, Ashley was seen by Dr. Borkowski, a Delaware neurologist. The tests conducted at duPont, under Dr. Borkowskfs 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 friend 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).

Troxel I, supra at 467, 636 A.2d at 1180. We would include the additional fact, taken from Dr. Browngoehl’s May 3, 1988 chart notes, that Mary Siple told Dr. Browngoehl she was looking for work, and would be leaving Ashley with a friend.

The issue before the Troxel I court was whether the trial court properly entered summary judgment in favor of the Delaware defendant, duPont. In order to make that determination, the Troxel I court had to decide whether to apply the substantive law of Delaware or Pennsylvania. Finding that the substantive law of Delaware applied, the Troxel I court then determined that, under Delaware law, no cause of action existed because no duty existed on the part of the medical providers toward third persons, absent a special relationship between the doctor and the patient or the doctor and the third person. Id. at 471-72, 636 A.2d at 1183. In drawing this conclusion, the Troxel I court relied in part upon The Restatement (Second) of Torts, § 315, and Delaware cases in which it was applied. Section 315 states, “There 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----” Section 319 states that 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____” Restatement (Second) of Torts § 319 (1965). The Troxel I court then noted that Delaware courts had found such a special relationship in a case in which a psychiatrist knew of the dangerous propensities of his patient, and therefore had a duty toward third persons in the treatment and discharge of the patient. Troxel I, supra at 471-72, 636 A.2d at 1183, citing Naidu v. Laird, 539 A.2d 1064 (Del.Supr.1988). Nevertheless, the Troxel I court found Naidu inapposite.

The Troxel I court then analyzed whether § 324A of the Restatement conferred a duty upon physicians toward third parties under Delaware law. Section 324A provides:

§ 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.

Troxel I, supra at 473-74, 636 A.2d at 1183-84, quoting Restatement (Second) of Torts, § 324A. Once again, the Troxel I court determined that Delaware courts would not impose upon duPont a duty toward Grace Troxel and her unborn child under § 324A

The Troxel I court then noted that, in contrast to Delaware, the Pennsylvania Supreme Court had found that a physician owed a duty to third parties who were not his patients under § 324A in DiMarco v. Lynch Homes—Chester County, Inc., 525 Pa. 558, 583 A.2d 422 (1990) (DiMarco II). In DiMarco II, a phlebotomist contracted hepatitis-B from a nursing home patient when the needle she was using to withdraw a sample of the patient’s blood pricked her skin. She immediately sought medical advice from defendant physicians, who told her that if she remained symptom-free for six weeks, she would not have been infected with the virus. Id. at 559-60, 583 A.2d at 423. She was also told to refrain from sexual relations for the six-week period; however, she decided to abstain from sex with her boyfriend for eight weeks. At the end of the eight-week period, when she was still symptom-free, she resumed sexual relations with her boyfriend. One month later, she was diagnosed with hepatitis-B, and three months after that, her boyfriend, the plaintiff in DiMarco II, was similarly diagnosed. DiMarco brought an action against the doctors and the nursing home, alleging their negligence in not having warned the technician that having sexual relations within six months of exposure to hepatitis-B could expose her sexual partner to the disease as well. Id.

In sustaining defendants’ preliminary objections, the trial court relied upon the physician’s lack of control over the sexual conduct of his patients and the public policy against non-marital sex. DiMarco I, supra at 465-66, 559 A.2d at 531, citing trial court opinion at 4.

On appeal, however, we reversed the trial court. While first recognizing the general rule that the duty of a physician arises from the physician/patient relationship, citing Craddock v. Gross, 350 Pa.Super. 575, 504 A.2d 1300 (1986), and Ervin v. American Guardian Life Assurance Company, 376 Pa.Super. 132, 545 A.2d 354 (1988), we went on to find a duty, nonetheless, between the defendant/doctor and DiMarco based on Restatement § 324A(c). Specifically, this court found a duty on the part of the phlebotomist’s doctors to DiMarco under § 324A(c), providing he could prove that the physicians gave the phlebotomist erroneous information regarding the transmission of the disease, and that DiMarco justifiably relied upon that advice to his detriment. Id. at 473-74, 559 A.2d at 535.

Justice Montemuro opined as follows:

In the case at bar, we find that the appellant has stated a cause of action, pursuant to Section 324A, even though there was no physician-patient relationship between the appellant and [the phlebotomist’s] physicians. In Cantwell v. Allegheny County, 506 Pa. 35, 483 A.2d 1350 (1984), our Supreme Court recognized that the essential provisions of Section 324A ‘have been the law of Pennsylvania for many years.’ Id. at 40, 483 A.2d at 1353. The present case is distinguishable from Ervin and Craddock, supra, which also lacked a physician-patient relationship between the plaintiff and the defendant, for a number of significant reasons. First, a physician-patient relationship did exist in the present case between [the phlebotomist] and her physicians. [The phlebotomist] visited her physicians for the purpose of receiving professional treatment and medical advice when she knew that she may have been exposed to hepatitis. Second, this case involves a communicable disease. It hardly needs to be said that the prevention and control of communicable diseases is a momentous task which is of the utmost importance to the health and welfare of our citizens....
Although there is a dearth of case law addressing medical malpractice in relation to communicable disease, several other jurisdictions have considered cases similar to the case at bar. Although none of these cases rely on Section 324A of the Restatement (Second) of Torts, we find their reasoning and underlying public policy considerations persuasive____

DiMarco I, supra at 469-70, 559 A.2d at 533 (footnote omitted). The court then looked to cases from other jurisdictions in which courts have found a duty to a third person based on the nature of the disease or the relationship of the third person to the patient. See infra. DiMarco I specifically limited its decision to the facts of that case, noting that it left open the question “whether a duty on the part of a physician will be recognized if a third party contracts a communicable disease from a patient who is acting on incorrect medical advice, where the third party was never advised of the medical advice by the patient.” Id. at 473 n. 3, 559 A.2d at 535 n. 3.

On grant of allocatur, the supreme court affirmed this court’s decision in DiMarco I, holding:

If a third person is in that class of persons whose health is likely to be threatened by the patient, and if erroneous advice is given to that patient to the ultimate detriment of the third person, the third person has a cause of action against the physician, because the physician should recognize that the services rendered to the patient are necessary for the protection of the third person.

DiMarco II, supra at 562, 583 A.2d at 424-25. The DiMarco II court thus clearly expanded the holding of DiMarco I to include not only those third persons, such as DiMarco, who were aware of the medical advice, but any third person, whether aware of the medical advice or not.

In interpreting this holding of the supreme court, the Troxel I court appears to have construed the language narrowly in stating that DiMarco II stood only for the proposition 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.” Troxel I, supra at 471-72, 636 A.2d at 1183. Troxel I’s interpretation clearly required knowledge of the risk to a particular third person. In fact, however, neither DiMarco I nor DiMarco II made mention of the requirement that the physician be aware of the third person. Instead, this court required only that the third person be aware of the medical advice and rely upon it, while our supreme court required only that the third person be “in that class of persons whose health is likely to be threatened by the patient” with a communicable disease. DiMarco II, supra at 562, 583 A.2d at 424. Lest any doubt remain, the supreme court added, “We further hold that the class of persons whose health is likely to be threatened by the patient [in a hepatitis case] includes any one who is physically intimate with the patient.” Id. at 563, 583 A.2d at 425 (emphasis in original). As the DiMarco II court observed, the duty of the physician treating a patient with a communicable disease is to prevent the spread of the disease, not for the benefit of the patient, whose health has already been compromised, but for the benefit of those third parties “within the foreseeable orbit of risk of harm.” Id. at 562, 583 A.2d at 424, quoting Doyle v. South Pittsburgh Water Co., 414 Pa. 199, 207, 199 A.2d 875, 878 (1964).

While the Troxel I court opted to limit the supreme court’s holding in DiMarco II, we are not deterred in our analysis because Troxel I’s interpretation of DiMarco II is not the law of the case instantly. The sole question before the Troxel I court was whether the trial court properly entered summary judgment in favor of the Delaware defendant, A.I. duPont Institute. Once the Troxel I court determined that Delaware law applied, its interpretation of Pennsylvania law became merely advisory. As a result, contrary to the trial court’s reliance, Troxel I’s interpretation of DiMarco II is not the law of this case. See Banker v. Valley Forge Insurance Co., 401 Pa.Super. 367, 374, 585 A.2d 504, 508 (1991) (“ ‘Law of the case ... means that whatever is once irrevocably established as the controlling legal rule of decision between the same parties in the same case continues to be the law of the case----’”), allocatur denied, 529 Pa. 615, 600 A.2d 532 (1991). We also agree with appellant that the Troxel I court’s analysis of DiMarco II is not binding on this court because it is dicta.

Having found that Troxel I does not control the outcome of the instant case, we must next decide whether, under Pennsylvania law, the Troxels have a cause of action on behalf of their deceased son against Ashley Smith’s Pennsylvania medical providers. The essence of this issue is whether Dr. Browngoehl owed a duty to Trevor Troxel. As our supreme court stated:

‘In determining the existence of a duty of care, it must be remembered that the concept of duty amounts to no more than “the sum total of those considerations of policy which led the law to say that the particular plaintiff is entitled to protection” from the harm suffered. To give it any greater mystique would unduly hamper our system of jurisprudence in adjusting to the changing times. The late Dean Prosser expressed this view as follows:
These are shifting sands, and no fit foundation____ Duty is only a word with which we state our conclusion that there is or is not to be liability; it necessarily begs the essential question.... In the decision whether or not there is a duty, many factors interplay: The hand of history, our ideas of morals and justice, the convenience of administration of the rule, and our social ideas as to where the loss should fall. In the end the court will decide whether there is a duty on the basis of the mores of the community, “always keeping in mind the fact that we endeavor to make a rule in each case that will be practical and in keeping with the general understanding of mankind.” ’

Gardner by Gardner v. Consolidated Rail Corp., 524 Pa. 445, 454-55, 573 A.2d 1016, 1020 (1990), quoting Sinn v. Burd, 486 Pa. 146, 164, 404 A.2d 672, 681 (1979) (other citations omitted).

Initially, appellants concede that the reliance prong of 324A(e) upon which the DiMarco courts relied is not available to them instantly to establish a duty owed to Trevor Troxel. Dr. Browngoehl gave no information to Mary Siple about the contagious nature and risk implications of Ashley’s disease. However, appellants contend that this fact should not preclude a finding of liability. Rather, they argue that the duty in DiMarco II was imposed on the basis of the foreseeability of the harm and not on the basis of reliance.

Appellants cite the following language from DiMarco II in support:

When a physician treats a patient who has been exposed to or who has contracted a communicable and/or contagious disease, it is imperative that the physician give his or her patient the proper advice about preventing the spread of the disease. Communicable diseases are so named because they are readily spread from person to person. Physicians are the first line of defense against the spread of communicable diseases, because physicians know what measures must be taken to prevent the infection of others. The patient must be advised to take certain sanitary measures, or to remain quarantined for a period of time, or to practice sexual abstinence or what is commonly referred to as ‘safe sex.’
Such precautions are taken not to protect the health of the patient, whose well-being has already been compromised, rather such precautions are taken to safeguard the health of others. Thus, the duty of a physician in such circumstances extends to those “within the foreseeable orbit of risk of harm.’

DiMarco II, supra at 560-62, 588 A.2d at 424, quoting Doyle, supra at 207, 199 A.2d at 878 (emphasis in original).

We agree with appellants’ analysis of DiMarco II and decide that reliance was not the sole basis upon which the duty was imposed. Rather, the court recognized a duty owed by the physician based upon the important role of the medical community in preventing the spread of communicable diseases, a duty that extends to all those within the foreseeable orbit of risk of harm. Our interpretation is supported by subsequent decisions of this court which distinguished the DiMarco decisions on the basis of lack of foreseeable risk. For instance, in Crosby by Crosby v. Sultz, 405 Pa.Super. 527, 592 A.2d 1337 (1991), we found no duty on the part of a physician to a third party injured by the diabetic patient in an automobile collision on the basis that the doctor failed to report the patient’s condition to the Department of Transportation:

Even if Dr. Sultz did have a duty to disclose Jackson’s name to the Department of Transportation, we can find no logical connection between that obligation and a duty of care to the Crosbys. The Crosbys were not foreseeable victims of Dr. Suite’s actions or inactions____ To discount the important element of foreseeability here is effectively to overrule well-established and precedential tort law, as well as to extend liability limitlessly to treating physicians vis-avis third party victims.
We note here that diabetes is not a communicable disease, such as hepatitis. See DiMarco, supra. Thus, we refrain from likening the instant circumstances to those in DiMarco.

Crosby by Crosby, 405 Pa.Super. at 543-44, 592 A.2d at 1345-46 (emphasis in original) (footnotes omitted). See also Waddell v. Bowers, 415 Pa.Super. 469, 476-77, 609 A.2d 847, 851 (1992) (Waddell was a passenger in a vehicle which was struck by another vehicle being operated by Bowers, a woman suffering from hypoglycemic shock. Waddell sued Bowers, who added as third-party defendants the dentist and hospital which allowed Bowers to drive, despite knowing that she was an insulin-dependent diabetic who had become ill while being treated. The Waddell court concluded, “Unlike treatment of a contagious disease, we cannot readily conclude that treatment of a hypoglycemic attack is necessary for the protection of others. Accordingly, [Bowers] has not alleged facts sufficient to establish that [the dentist and the hospital] had undertaken to render services to [Bowers] that they should have recognized as necessary for the protection of Waddell.”), allocatur denied, 533 Pa. 613, 618 A.2d 402 (1992).

Our next task, then, is to determine whether appellants have alleged sufficient facts to establish that appellees should have foreseen that their treatment of Ashley Smith was necessary for the protection of third persons such as Trevor Troxel. Waddell, supra at 472-74, 609 A.2d at 849. Appellants argue that foreseeability is an issue for the jury, and thus should not have been decided in a motion for summary judgment. We disagree. Under DiMarco II, a determination of foreseeability is the essence of a determination of duty. A finding that appellees owed a duty to appellants is a condition precedent to a finding of negligence; without a finding of duty, the issue of breach of duty cannot be submitted to the jury. See Shaw v. Kirschbaum, 439 Pa.Super. 24, 29, 653 A.2d 12, 15 (1994), allocatur denied, 541 Pa. 652, 664 A.2d 542 (1995).

The medical community is well aware of the risks CMV poses to in útero infants. While it is true that Dr. Browngoehl and his associates had no way of knowing the identity of particular pregnant women whose infants would be at risk from exposure to Ashley, and therefore could not possibly be expected to warn the pregnant women, nevertheless, these doctors knew, or should have known, that a class of persons very likely to come into contact with a young mother and her new baby were at risk, and that the risk was deadly. Despite this awareness, neither duPont, Dr. Browngoehl, nor anyone else at Ches-Penn advised Mary Siple of the contagious nature of CMV, or of the fact that she and Ashley should avoid close contact with pregnant women. (Trial court opinion, 2/24/95 at 3.) As a result, Mary Siple continued to associate with her close friend, Grace Troxel, who had become pregnant in November of 1987 and who would frequently feed, change, hold, and kiss Ashley during visits with Mary and Ashley. (Id.) Based upon the analysis articulated by the DiMarco II court as applied to the facts alleged by appellants, it is clear that Grace Troxel’s unborn son Trevor was within that “class of persons whose health [was] likely to be threatened by the patient----” and thus he was within the “ ‘foreseeable orbit of risk of harm[.]’ ” DiMarco II, supra at 562, 583 A.2d at 424.

As already noted, this court, in finding a duty on the part of the physicians to DiMarco in DiMarco I, based that duty in part on § 324A(c) of the Restatement, and in part upon its review of the case law from other jurisdictions. Numerous courts throughout the country have addressed the issue of whether a doctor or other health care provider is liable to a third party who contracts a contagious disease from the doctor’s patient. See Tracy A. Bateman, Annotation, Liability of Doctor or Other Health Practitioner to Third, Party Contracting Contagious Disease from Doctor’s Patient, 3 ALR 5th 370 (1992). The DiMarco I court found particularly persuasive the reasoning and underlying public policy considerations in Wojcik v. Aluminum Company of America, 18 Misc.2d 740, 183 N.Y.S.2d 351 (1959).

In Wojcik, Joseph Wojcik and his wife Caroline sued Mr. Wojcik’s employer for failing to inform him that the results of his chest X-ray, taken during the course of a physical examination at work, indicated he had tuberculosis. The physician who read the X-ray was apparently an agent of the employer, whose practice it was to inform employees of any physical problems. Because Joseph Wojcik was not informed he had a contagious disease, his wife failed to take steps to protect herself from contracting the disease. In holding that Caroline Wojcik had stated a claim, the Wojcik court opined:

‘In 41 AmJur., Physicians and Surgeons, § 101, p. 216, it is stated: “One who by reason of his professional relations is placed in a position where it becomes his duty to exercise ordinary care to protect others from injury or danger is liable in damages to those injured by reason of his failure to do so.” The policy of the law in general is stated in 70 C.J.S. Physicians and Surgeons § 48, p. 970, as follows:
It is the duty of a physician who is attending a patient afflicted with a contagious or infectious disease to exercise care in advising and warning members of the family and others who are liable to exposure of the existence and nature of the danger from the disease, to avoid doing any act which would tend to spread the infection, and to take all necessary precautionary measures to prevent its spread to other patients attended. A physician who fails to give such warning is negligent....’

DiMarco I, supra at 471, 559 A.2d at 533-34, quoting Wojcik, supra at 746-47, 183 N.Y.S.2d at 358-59. The DiMarco II court, approving this analysis, quoted DiMarco I for the proposition that “the prevention and control of communicable diseases is a momentous task which is of the utmost importance to the health and welfare of our citizens.” DiMarco II, supra at 563, 583 A.2d at 425, quoting DiMarco I, supra at 470, 559 A.2d at 533.

As a result of the foregoing, we have no doubt that a fair reading of the DiMarco decisions extends the duty of a physician to third persons in instances where the physician undertakes the treatment of a patient with a communicable or contagious disease. This duty encompasses a duty to correctly inform the patient about the contagious nature of the disease in order to prevent its spread to those who are within the foreseeable orbit of risk of harm.

Appellees argue that even if DiMarco has imposed such a duty, it does not encompass a ubiquitous disease such as CMV. Framing this question within the procedural posture of this case, we need only decide whether the trial court erred as a matter of law when it found that CMV was not a contagious disease within the meaning of DiMarco. If CMV is a disease contemplated by DiMarco, then its ubiquitous nature is better addressed in the context of whether Dr. Browngoehl’s conduct fell below the standard of care of a physician whose patient has a contagious disease.

Initially, it is conceded by both appellants and appellees that CMV is a contagious disease; that it exists in the general population; that while it is generally harmless and often may go unnoticed in most individuals, it may have severe consequences for certain at-risk groups, such as those whose immune systems have already been compromised, pregnant women and newborns. The risks are not obscure but rather are well recognized in the literature of the medical community. The American Academy of Pediatrics Committee on Infectious Diseases, while advocating no special screening or quarantining of children with CMV in daycare centers and schools, does clearly recognize that there is a risk to pregnant women who care for CMV children and that they should be urged to practice good hygiene. (Plaintiffs’ Answer to Motion for Summary Judgment of Defendant, Ches-Penn Health Services, Inc. and Additional Defendant Kevin Browngoehl, M.D., Exhibit H, Report of the Committee on Infectious Diseases at 141-12 (20th ed., 1986).) Additionally, appellants have cited to numerous procedures and regulations governing hospitals which recognize the risk factors and preventive measures connected with CMV. (Appellants’ brief at 16, citing, inter alia, the Centers for Disease Control (CDC) Guidelines.) We agree with appellees that these regulations do not impose a duty on physicians; nevertheless, they clearly suggest common knowledge in the medical community of the nature of CMV and its risks to pregnant women and their unborn children.

While we recognize that the communicable disease in Di-Marco, hepatitis-B, is a so-called “reportable” disease, while CMV is not, we agree with appellants that, for our purposes, this is a distinction without a difference. Both this court and our supreme court referred to the reporting requirements only to emphasize that a physician’s duty can extend to the protection of third persons. As the DiMarco II court stated, “Clearly, such [reporting] measures are mandated by law specifically to protect third persons who will come into contact with those who have been exposed to or have contracted a communicable disease.” DiMarco II, supra at 563, 583 A.2d at 425 (emphasis in original).

Appellees argue that imposing a duty on a physician in this case would render physicians liable for the spread of any infectious disease, even the flu or the common cold. We disagree. The reason the court imposed a duty in DiMarco was to ensure that information regarding the infectious nature of communicable diseases be made available for the protection of others besides the patient. In the case of viruses such as the flu or the cold, such information is common knowledge. In contrast, where certain risks regarding the spread of certain diseases may only be known within the medical profession, it is essential that correct information be disseminated by the physician. For example, in the case of AIDS or hepatitis, which appellees must concede are covered by the DiMarco duty, a physician has a duty to inform the patient how to avoid the spread of the disease by avoiding specific at-risk conduct, even though the general population may not be otherwise at risk. The same can be said of the communicable nature of CMV.

We recognize that DiMarco involved a misfeasance by the treating physicians, who gave the phlebotomist incorrect information, whereas instantly, we are confronted with a physician who gave Mary Siple no information. We do not believe, however, that the public policy of this state would be well served by encouraging physicians to tell their patients nothing about their communicable diseases in order to avoid potential liability. The standard of care for a physician who is treating a patient with a communicable disease is to inform the patient about the nature of the disease and its treatment, to treat the patient, and to inform the patient how to prevent the spread of the disease to others. (R.R. at 193a, 195a, 226a, 257a.) To find that a physician has a duty to impart accurate information, but no duty to impart any information, would be to turn logic on its head.

The jury in the instant case might well decide that Dr. Browngoehl acted appropriately when he said nothing about the contagious nature of CMV. Conversely, a jury might decide that Dr. Browngoehl’s duty required a simple warning to Mary Siple that pregnant women should not be involved in Ashley’s caregiving, or that they should take extra precautions if they were. This is not an onerous burden. Yet it is one with a potentially enormous benefit.

Based upon all of the foregoing, we find that the duty enunciated by DiMarco II does apply to this case. We also find that the trial court erred as a matter of law in deciding that CMV is not the type of disease encompassed by this duty. Whether Dr. Browngoehl acted appropriately under the circumstances is a question better left to the jury.

As a result, we reverse the order of the trial court granting appellees’ motion for summary judgment and remand for proceedings consistent with this opinion. Jurisdiction is relinquished.

      . We note that the superior court opinion indicates the phlebotomist was told to refrain from sexual relations for six weeks, and also indicates that the doctors knew both the phlebotomist and DiMarco personally and “ ‘were aware or had reason to know that [DiMarco] and [the phlebotomist] were intimate.’ ” DiMarco v. Lynch Homes— Chester County, Inc., 384 Pa.Super. 463, 466, 559 A.2d 530, 531 (1989) (DiMarco I), quoting trial court opinion at 2, notes of testimony, 5/19/88 at 34. The supreme court opinion, on the other hand, indicates the phlebotomist was not told to refrain from sexual relations for any specific period of time; rather, that opinion indicates she was merely told she would not have been infected if she remained symptom-free for six weeks. DiMarco II supra at 559-60, 583 A.2d at 423. For purposes of our analysis, we adopt the facts as set forth in DiMarco I.

        . As to the validity of this interpretation, see footnote 4, infra.

      . The amicus brief filed on behalf of the Pennsylvania Trial Lawyers Association argues that the facts of this case fall within the meaning of 324A(c). Mrs. Troxel relied on the lack of information given to Maty Siple. This reliance is evidenced by Mrs. Troxel immediately altering her behavior once informed of the contagious nature of the disease. We believe that the point is well taken, and in the context of malpractice as between doctor/patient, a failure to warn, to diagnose, or to disclose is considered misfeasance rather than nonfeasance. However, we can find no authority to support nonfeasance as a basis for liability under 324A(c). As set out in § 314 of the Restatement, absent special circumstances, "The fact that the actor realizes or should realize that action on his part is necessary for another’s aid or protection does not of itself impose upon him a duty to take such action.” Restatement (Second) of Torts, § 314 (1965).

      . The DiMarco I court also cited with approval the courts’ analyses in two additional cases of Hofmann v. Blackmon, 241 So.2d 752 (Fla. 4th DCA 1970) certiorari denied sub nom. Blackmon v. Hofmann, 245 So.2d 257 (1971), and Shepard v. Redford Community Hospital, 151 Mich.App. 242, 390 N.W.2d 239 (1986), appeal denied, 431 Mich. 872, 430 N.W.2d 458 (1988). In Hofmann, the court found a duty owed by a physician to a minor child who was a member of the immediate family and living with a patient suffering from tuberculosis both to diagnose the disease and to inform those in charge of the child of the precautions necessary for the child’s protection. In Shepard, it was decided that a hospital owed a duty to the child of a patient whose spinal meningitis went undiagnosed, so that she returned home from the hospital and infected the child, who subsequently died from the disease. We recognize that these cases involved a special relationship between the patient and the third party of which the physician had knowledge, and are thus factually distinguishable from the case instantly. Nevertheless, the special relationship was not the basis upon which these cases were cited in DiMarco I, and clearly the supreme court in DiMarco II did not require such a relationship in order to find a duty.

      . Acquired Immune Deficiency Syndrome.

      [Footnote] CMV is a ubiquitous disease which is a member of the heipetoviruses 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).