author: FORD ELLIOTT, Judge:

text:
    595 A.2d 1232
    Ronald J. AMODEO and Kimberly Amodeo v. RYAN HOMES, INC., a Corporation Pleasant Valley Land Co., Appeal of RYAN HOMES, INC., a Corporation. Ronald J. AMODEO and Kimberly Amodeo v. RYAN HOMES, INC., a Corporation v. PLEASANT VALLEY LAND CO., Appellant.
    Superior Court of Pennsylvania.
    Argued April 16, 1991.
    Filed Aug. 7, 1991.

      Joseph M. Ramirez, Pittsburgh^ for appellant in No. 1613 and for Ryan Homes, appellee .in No. 1619.
    Michael J. Seymour, Bethel Pjark, for Amodeo, appellees.
    Before McEWEN, FORD ELLIOTT and CERCONE, JJ.
   FORD ELLIOTT, Judge:

These related appeals are from the September 21, 1990 order of the Court of Common Pleas of Allegheny County denying the Motions for Post-Trial Relief by Ryan Homes, Inc., and Pleasant Valley Land Company, Inc., and entering judgment on the non-jury order dated April 16, 1990.

The equity action giving rise to this appeal was initiated by Ronald and Kimberly Amodeo against Ryan Homes, Inc., to recover damages, or in the alternative to rescind the contract for the purchase of their house, due to defective construction and/or fraud which resulted in acid mine drainage water infiltrating the basement of their house. Ryan Homes, in turn, joined Pleasant Valley Land Company, Inc., as an additional defendant. Pleasant Valley was the developer of the plan of lots upon which the Amodeo house was constructed by Ryan Homes.

In June of 1980, the Amodeos met with a sales representative from Ryan Homes regarding the selection and construction of a new house. The sales representative directed their attention to a new development in South Park Township known as “Village of Knot Hole Plan No. 1.” After reviewing several different models, the Amodeos selected a model constructed by Ryan Homes known as the Chamberlain. This model was selected, according to the Amodeos, because it had only a single-car garage, allowing more space for a larger game-room in the basement of the house. The Amodeos had stressed to the Ryan Homes’ representative that it was very important to them to have a very large game-room since they were planning to raise a family in the house. In furtherance of those plans, the Amodeos selected certain options in the construction which would ultimately lead to a finished game-room, such as additional electrical outlets, fixture boxes, phone jacks, and plumbing connections for a bathroom.

Ryan Homes designed and constructed the Chamberlain model home for the Amodeos and in doing so, installed in the foundation and basement floor of the home both an exterior and interior drainage system to handle subsurface water. The exterior drainage system was gravity operated whereas the interior system functioned with a sump pump which was needed to pump the water from the floor to the height of the basement wall in order to allow water to exit the front of the house. At the preclosing inspection the Amodeos were told, for the first time, of the existence of the sump pump. Tim Merkill, of Ryan Homes, told the Amodeos just to forget about the sump pump, that it was nothing for them to worry about.

On September 5, 1980 the Amodeos closed on their house. Approximately six months later they began to notice water accumulating on the basement floor. The Amodeos immediately contacted Ryan Homes, and Tim Merkill was sent to investigate the complaint. Mr. Merkill flushed the sump pump and crock with a water hose and indicated the Amodeos would need to do the same from time to time to prevent any future problems with water accumulating on the basement floor.

Over the next six years, the water problem in the Amodeo house worsened. The basement walls remained damp and discolored. The basement pipes clogged and deposits of orange-colored sludge appeared on the basement floor as well as in the crock. Ryan Homes was contacted repeatedly during that period and attempted several methods to cure the problem. The original sump pump was replaced with a larger, commercial pump. The interior drainage system was also redesigned to include cleanouts and larger pipes. All of the attempts to correct the problem by Ryan Homes provided temporary relief, but never cured the problem. The Amodeos eventually contacted the Pennsylvania Department of Environmental Resources, the U.S. Department of Surface Mining, and South Park Township officials. Tests performed by the DER. indicated that the nature of the water being received by the Amodeo residence was acid mine drainage. Township officials informed the Amodeos that such water was not acceptable in their surface water drainage system.

Since Ryan Homes was not able to offer any further alternatives that could possibly cure the problems, the Amodeos finally filed a lawsuit on September 9, 1987, seeking to either rescind the contract or in the alternative, recover damages.

The non-jury trial resulted in a verdict in favor of the Amodeos in the amount of $32,500.00 as the costs to repair the house, along with an additional $17,288.92 in attorney’s fees and other costs associated with bringing the lawsuit.

Both Ryan Homes, Inc., and Pleasant Valley Land Company, Inc., filed timely motions for post-trial relief, which were subsequently denied. These timely appeals followed.

Ryan Homes, Inc., appellant at No. 1613 Pittsburgh 1990, raises the following issues for our consideration.

I. Does the statute of limitations bar a claim of breach of warranty of habitability that was discovered by plaintiffs more than four years before they commenced the action?
II. Are damages for breach of a construction contract limited to the diminution in market value of the property when the cost of repair greatly exceeds the loss of value?
III. Must plaintiffs who have prevailed on a claim for breach of implied warranty of habitability bear their own attorney fees and litigation expenses?
IV. Is a developer of property that is obligated to deliver lots suitable for construction of homes solely responsible for any damages caused by an unsuitable lot?

Pleasant Valley Land Company, Inc., appellant at No. 1619 Pittsburgh 1990, likewise raises four issues for our consideration. Pleasant Valley’s first three issues are identical to those posed by Ryan Homes. Their fourth issue questions whether it is the builder who is solely liable for plaintiffs’ damages for building on a lot which was unsuitable for construction.

We shall address Ryan Homes’ first three issues separately, and then consider both appellants’ final issues together.

Regarding the first issue raised by Ryan Homes, it is their position that the Amodeos’ claims were barred by the applicable statute of limitations. Although the Amodeos filed a five-count complaint, they recovered only on their theory of breach of implied warranty of habitability. The appropriate limitations period for such a claim is set forth at 42 Pa.C.S.A. section 5525, which provides in pertinent part that “[t]he following actions and proceedings must be commenced within four years: (1) an action upon a contract, under seal or otherwise, for the sale, construction or furnishing of tangible personal property or fixtures ...” In applying this statute under these circumstances it was necessary for the trial court to resort to the discovery rule. The discovery rule requires a determination as to when a plaintiff knows of or should know of the injury he has sustained. See Levenson v. Souser, 384 Pa.Super. 132, 557 A.2d 1081 (1988). In this case that would mean when the Amodeos knew or should have known that their house was uninhabitable by reason of the water problem in the basement. The discovery rule does apply to cases involving defective construction. See A.J. Aberman, Inc. v. Funk Building Corp., 278 Pa.Super. 885, 420 A.2d 594 (1980). Applying the discovery rule to the facts of the case, the trial court concluded that “[communication between the Amodeos and Ryan Homes continued until January of 1987 during which time Ryan Homes manifested a commitment to accept responsibility for the problem.” The court, therefore, found the action to be filed timely in September of 1987. Ryan Homes maintains that the trial court erred in reaching such a conclusion. According to Ryan Homes, the Amodeos’ cause of action accrued in March of 1981 when they first noticed water in their basement. Since the suit was not filed until six years later, the argument continues, it is necessarily barred by the applicable four-year limitation period. Based upon our review of the record in this case we are inclined to agree with the trial court’s conclusion that the action was not time barred, although we conclude that the action accrued at a time different from that found by the trial court.

At the outset of our analysis we note the following: It is settled that the findings of a trial judge sitting without a jury must be accorded the same weight and effect on appeal as a jury verdict, and will not be disturbed in the absence of an abuse of discretion or a finding of lack of evidentiary support____ An appellate court, however, is not bound by the trial court’s conclusions of law based on its findings of fact____ It is also clear that the party favored by the findings of the trial judge is entitled to have the evidence viewed in the light most favorable to him; that is, all the evidence and proper inferences favorable to him must be taken as true and all unfavorable inferences rejected____ This is particularly true in a case in which the credibility of witnesses must be closely evaluated.

Concorde Investments, Inc. v. Gallagher, 345 Pa.Super. 49, 58-59, 497 A.2d 637, 642 (1985) (citations omitted).

It is equally important to note that “[wjhether the statute has run on a claim is usually a question of law for the judge, but where, as here, the issue involves a factual determination, i.e., what is a reasonable period, the determination is for the jury.” Smith v. Bell Telephone Co., 397 Pa. 134, 142, 153 A.2d 477, 481 (1959) (citations omitted). In this instance such a determination was left to the judge as the trier of fact. Viewing the evidence in a light most favorable to the Amodeos, as the party favored by the findings of the trial judge, we conclude that the trial court did not abuse its discretion in concluding that the action for breach of warranty was not time barred. Such a conclusion is supported by the record.

The Amodeos first noticed water in their basement in March of 1981, approximately six months after they had purchased the house. According to appellant it was on that date that the cause of action accrued, and it is from that date that the four year limitations period should be calculated. However, the initial occurrence of a leak does not necessarily put one on notice of a defect so as to give rise to a cause of action. As this court has previously noted, “[ojrdinarily, whether the first leak or leaks represented notice of a defect would be a decision for the jury.” A.J. Aberman, Inc. v. Funk Building Corp., 278 Pa.Super. 385, 399, 420 A.2d 594, 601 (1980). In this instance such a decision was left to the trial court as the trier of fact. The record provides ample evidence to support the trial court’s finding that the cause of action did not accrue when the leak was first discovered, as argued by appellant, but rather accrued at a later date when the true problem and its scope were made known to the Amodeos.

While it is true that the first leak occurred approximately six months after the Amodeos closed on the house, this was not sufficient to put them on notice that their house was uninhabitable. Indeed, the Amodeos immediately contacted Ryan Homes in an attempt to have the problem corrected. Thus began a series of attempts by Ryan Homes, over a span of several years, to correct the water problem in the basement of the Amodeo house. Such attempts served to toll the running of the statute of limitations under the repair doctrine. As noted in Ranker v. Skyline Corp., 342 Pa.Super. 510, 493 A.2d 706 (1985), the repair doctrine has never been adopted formally in Pennsylvania. However, the doctrine has been considered in several cases. The reason the doctrine has not been adopted and applied is because, as stated by this court, “[tjhere can be no estoppel merely because an attempt has been made to repair a defect. For an estoppel to arise which will toll the statute of limitations, there must also be a representation that the repairs have cured or will cure the defect.” Ranker, 342 Pa.Super. at 516, 493 A.2d at 709, citing A.J. Aberman, Inc. v. Funk Building Corp., supra. The Aberman case involved a leaky roof in a newly-constructed shopping center. The roof was installed and the building was completed in 1965. The roof began to leak shortly thereafter. Funk Building Corporation, the general contractor, originally repaired the leaks, but in September of 1967 refused to undertake any further repairs and informed the owners to look elsewhere for relief. Thereafter, the owners hired a third party to repair the leaks from 1967 through 1973. Finally, in 1973 the owners of the shopping center had the roof replaced. The owners then filed a complaint against Funk Building Corporation in December of 1973. At the close of plaintiffs case, Funk moved for, and was granted, a compulsory nonsuit on the grounds that the action was barred by the applicable statute of limitations.

On appeal, one of the arguments raised by appellants in Aberman was that the repair doctrine served to toll the statute of limitations. The Aberman court reviewed cases from other jurisdiction which had both adopted and rejected the repair doctrine. The court then concluded that the doctrine was inapplicable in the case before it. The court reached that conclusion, in part, because plaintiff had not demonstrated that the defendant had represented that the repairs would cure the defect in the roof, and that it had relied on such representations. Viewing the repair doctrine as a form of estoppel, the court concluded these elements would have been necessary before the doctrine could be adopted and applied.

However, this court left open the possibility that at some point in the future the repair doctrine would be adopted by the courts of the Commonwealth.

The appellate courts of this state apparently have not yet decided whether to adopt the repair doctrine, although the federal district court in Bobo v. Page Engineering Co., [285 F.Supp. 664 (W.D.Pa.1967), aff'd, 395 F.2d 991 (3d Cir.1968)], relying on the decision by the court of common pleas in Lewis v. Jacobsen, 30 Pa.D. & C.2d 623 (Erie 1962), concluded that the doctrine would be rejected. With respect to the correctness of the district court’s conclusion, it should be noted that both the Supreme Court and this court have recognized that in context other than repairs, a plaintiff may show that the defendant is estopped to invoke the statute of limitations. See Nesbitt v. Erie Coach Co., 416 Pa. 89, 204 A.2d 473 (1964) (promise to settle may have lulled plaintiff into false sense of security); Acker v. Palena, 260 Pa.Super. 214, 393 A.2d 1230 (1978) (defendant physician’s promise that vision would return); Barshady v. Schlosser, 226 Pa.Super. 260, 313 A.2d 296 (1973) (defendant physician’s assurances that condition was temporary). See also Walker Manufacturing Co. v. Dickerson, Inc., [560 F.2d 1184 (4th Cir.1977)] supra (settlement negotiations). Since the repair doctrine would seem nothing more than a form of estoppel, we cannot say with any degree of certainty that it would be rejected by the Supreme Court or this court.

Aberman, 278 Pa.Super. at 401-402, 420 A.2d at 602. Indeed, other jurisdictions which have adopted the repair doctrine have noted that the doctrine is nothing more than a particularized form of the more general doctrine of estoppel. See Little Rock School Dist. v. Celotex Corp., 264 Ark. 757, 574 S.W.2d 669 (1979).

Therefore, because we view the repair doctrine as nothing more than a form of estoppel, we now adopt this doctrine in Pennsylvania. However, we are quick to caution that the doctrine will only apply under circumstances where the evidence reveals that repairs were attempted; representations were made that the repairs would cure the defects; and the plaintiff relied upon such representations. In the present case, we find all three elements to exist. The record demonstrates that Ryan Homes attempted repairs from the time the problem first developed until July of 1985 when they wiped their hands of the entire situation. It is also apparent from the record that Ryan continually represented, with each successive repair attempt, that the problem would be corrected. Finally, Mr. Amodeo, himself, stated that he relied upon these representations and believed that the problem was going to be corrected.

Ryan Homes made numerous attempts to cure the water problem at the Amodeo house and did represent that such repairs would cure the problem. Initially, when the water was first discovered in early 1981, Mr. Merkill, of Ryan Homes, came to the Amodeo house to investigate the problem. Mr. Merkill informed the Amodeos that the problem was a clogged sump pump and he proceeded to flush out the pump with a garden hose. Mr. Merkill advised Mr. Amodeo that he would have to periodically flush the pump, and that would correct the problem.

After approximately another year of following Mr. Merkill’s instructions and attempting to clean and maintain the pump, the water problem at the Amodeo house persisted, if not worsened. At that time, in March of 1982, Mr. Amodeo responded to a Ryan Homes’ customer satisfaction survey by voicing his displeasure over the water problems and all the maintenance he was required to do with the sump pump. Mr. Amodeo’s complaints prompted Ryan Homes to attempt another alternative to solve the problem in early 1983. Two Ryan workers broke through the cement basement floor of the Amodeo house and installed two “clean-outs” in the internal part of the floor, and also installed a different type of a pump known as a “dry sump pump.” Mr. Merkill explained this new system to the Amodeos, and the condition did improve temporarily, leading the Amodeos to believe that the problem had been corrected.

However, the water problems eventually recurred, and this prompted Mr. Amodeo to contact Mr. John Smith, manager of the Pittsburgh South Division of Ryan Homes. According to Mr. Amodeo, he and Mr. Smith had numerous conversations in which several alternatives to correcting the water problem were discussed. In Mr. Amodeos own words, “He [Mr. Smith] would have meeting after meeting and discuss figures after figures with me and always led me to believe that eventually this was going to be resolved ...” (Tr. p. 79). Indeed, during this period from late 1983 throughout 1984, several more attempts were made to correct the problem. Most notably, Mr. Smith contacted the developer regarding a pipe that was under a house two lots away from the Amodeo house, and which ran under the street to a stream about one-half mile away. Mr. Smith thought he could tie into this pipe and use it as a gravity-feed relief system for the problem in the Amodeo house. A backhoe was brought in, and an area near the berm of the road was dug up in an attempt to expose that pipe. The pipe was never located, but the french drain was broken in the process and later had to be repaired.

Finally, on July 23, 1985, the Amodeos received a letter from Ryan Homes indicating that there was nothing further that they could do to resolve this problem. The letter noted that it was acid water drainage from the mines that was seeping into the house, and that Ryan was sorry but the situation could not be corrected. Clearly, it is at that point that the Amodeos’ cause of action accrued. Applying either the discovery rule or the repair doctrine it is clear to this court that as of July, 1985, the Amodeos’ were aware of the permanent nature of the damage to their house and were further aware that Ryan was not going to undertake any further attempts to cure the problem. Indeed, the letter from Ryan of July 23, 1985, states that the problem could not be cured by Ryan. However, because we conclude that the cause of action did not accrue until July, 1985, we agree with the trial court that under the applicable statute of limitations the Amodeos’ cause of action for breach of warranty was filed timely.

By adopting the repair doctrine, we are merely applying a specialized form of estoppel, consistent with those other contexts in which we have previously concluded that estoppel applies to toll the running of a limitations period. Again, in applying this doctrine, courts must require the existence of all three elements which are the foundation of any estoppel theory: an act (in this case, the attempted repairs), a representation (in this case, that the repairs would cure the defect), and reliance upon the representation. In situations where all three elements exist, the repair doctrine will be applied to estop a party from raising a statute of limitations defense.

Finally, the adoption of this estoppel doctrine does not run counter to or frustrate the purposes underlying statutes of limitations.

Statutes of limitation are declaratory of the principle of the common law that the law lends its aid only to those who exercise diligence in involving it. They are expressive of the feelings of mankind that wrongs should be redressed and rights enforced without unreasonable delay. Their purpose is to stimulate diligence in looking after rights and in instituting litigation while evidence is living, fresh, and at hand, and thus avoid the uncertainties which attend investigation of aged controversies. The primary consideration underlying statutes of limitations is to expedite litigation and to preclude long delays that would be prejudicial to the person against whom the action is brought.

Standard Pa.Prac.2d, Chap. 13, Sec. 13:2 at 415-416. In this case, as in any case involving the proper application of the repair doctrine, there can hardly be unfair surprise or prejudice alleged by a defendant. Furthermore, the adoption of this theory of estoppel is correct as a matter of public policy in that a party who in good faith postpones filing suit in reliance upon the other party’s assurances that repairs will be effective and litigation unnecessary should not be faulted for such reliance. We as a court must consider doctrines such as this which will facilitate the attempted resolution of disputes out of court and will not close the courts to parties who have failed in their good faith efforts to resolve such disputes.

Appellant’s second issue concerns the measure of damages awarded appellees under their claim for breach of warranty of habitability. According to appellant, the method used by the trial court to calculate these damages was improper. As appellant notes, “where the cost of repairs exceeds the diminution in value, ... the cost of repairs is not the measure of damages.” Freeman v. Maple Point, Inc., 393 Pa.Super. 427, 574 A.2d 684, 688 (1990) (emphasis in original). Instead, appellant sets forth as the proper method:

[t]he measure of damages in cases where a homeowner sues for defective construction is the difference between the market value of the house as constructed and the market value that the house would have had if constructed as promised, with the qualification that if it is reasonably practical to cure the defects in construction by repair, and if the cost of repairs does not exceed the difference in market value, the measure of damages is the cost of repair.

Id., 393 Pa.Superior Ct. at 430, 574 A.2d at 686.

In the present case, both the plaintiffs and Ryan Homes presented evidence on the cost to cure the mine water problem at the house. Plaintiff’s expert estimated the cost at $32,500.00, while the Ryan Homes expert proposed a figure of $7,000.00. The trial court found the proposal offered by the plaintiff’s expert to be the best solution from the evidence presented. The next step was then to compare the cost to repair with the diminution in market value as a result of the water problem. Plaintiff’s expert opined that the diminution in value caused by the water problem left the house with a market value of $40,000.00. The difference in value therefore produced the same figure as the cost to repair and so the trial court awarded that figure as damages. Ryan Homes now complains that this is not a genuine comparison because all that plaintiffs’ expert did was to deduct cost to repair from current market value to arrive at the diminished market value. Ryan contends that the law requires a genuine comparison between cost to repair and diminution in market value. In support of its genuine comparison approach, Ryan notes that it presented independent expert evidence of the property’s diminished market value. As Ryan sets forth in its brief to this court, “the diminution in value, calculated independently of the cost to repair, is $7,000.00. Interestingly, that is the precise figure that Ryan offered as the cost to repair the problem. Regardless of the rhetoric attached to the method of arriving at the various figures, the trial court was obviously presented with conflicting expert testimony as to cost to repair and diminution in market value. As the trier of fact in this case, the trial court was free to believe whatever expert opinion it found to be most credible in light of the facts. As the trial court has concluded that the cost to repair is $32,500.00 and the diminution in market value is also $32,500.00, then under the mandates of Freeman, supra, the trial court was correct in awarding that amount as damages for breach of the warranty of habitability.

The third issue raised by appellants concerns the propriety of the award of attorney’s fees and litigation expenses. Clearly, the trial court awarded these damages pursuant to the count in the complaint alleging fraud. The trial court specifically notes that it was awarding legal fees and expenses on the basis of fraud in that the defendants made misleading misrepresentations to the plaintiffs which they in turn relied upon to their detriment. However, it is not necessary that we consider whether such damages are recoverable under a cause of action based upon fraud. For, as Ryan Homes notes in their supplemental brief to this court, should this court conclude that plaintiffs’ cause of action accrued any time after February 18, 1983, then the count based upon fraud would be subject to the new two-year statute of limitations. See 42 Pa.C.S.A. section 5524(7). As we have already concluded that the plaintiffs’ cause of action accrued in July 1985, the claim for fraud is necessarily time barred as the complaint was not filed until September 9, 1987, more than two years after the accrual of the action. As the federal court has noted in discussing Pennsylvania’s new statute of limitations for fraud, any claim for fraud brought after February 18, 1983, is specifically governed by the language of section 5524(7) which expressly applies a two year limitations period to fraud claims. See A.J. Cunningham Packing Corp. v. Congress Financial Corp., 792 F.2d 330 (3d Cir.1986). Because we hold that appellees’ claim for fraud is time barred we reverse that part of trial court order awarding plaintiffs’ $17,288.92 in attorney’s fees and any litigation expenses relative to the fraud claim.

The final issues raised for this court’s consideration concern the extent of liability for the damages as between Ryan Homes and Pleasant Valley Land Company. Simply stated, each is arguing that the other is liable for the full extent of the damages. The trial court concluded that the two parties were jointly and severally liable for the full amount of the damages. Because neither party has offered any grounds for error regarding such a ruling, and because we can find no error on the part of the trial court, we will not disturb that part of the trial court’s order.

That part of the trial court order awarding damages to plaintiffs in the amount of $32,500.00 as costs to repair the house is affirmed. The part of the trial court’s order awarding damages to the plaintiffs in the amount of $17, 288.92 for other pecuniary loss related to the fraud claim is reversed. Finally, the part of the trial court order holding both Ryan Homes and Pleasant Valley Land Company jointly and severally liable for the damages is affirmed.

Order affirmed in part and reversed in part. Jurisdiction relinquished.

      . Pleasant Valley, with respect to the first three issues, merely incorporates by reference in its brief the arguments presented by Ryan Homes in its brief. Thus, our disposition of those issues with respect to Ryan Homes will also apply to Pleasant Valley Land Company, Inc.

      . As a matter of clarification, we note that the trial court’s statement of the facts includes a settlement offer by Ryan Homes in 1983, which was rejected by the Amodeos. Our review of the record, however, reveals that this offer was not made until after the letter of July 23, J985, and, therefore, in no way affects our disposition on this issue.

      . Appellees were awarded expert witness fees of $2,150.00 as a part of the grant of relief on the fraud claim. Our vacating of this award is without prejudice to any relief appellees may have for costs under the Rules of Civil Procedure.


source: Caselaw Access Project

author: CIRILLO, Judge:

license: Public Domain

text:
    595 A.2d 1240
    Howard B. MINTZ and Heddie A. Mintz, Appellants, v. The CARLTON HOUSE PARTNERS, LTD., Appellee.
    Superior Court of Pennsylvania.
    Argued May 8, 1991.
    Filed Aug. 7, 1991.

      Simon W. Tache, Philadelphia, for appellants.
    Michael E. Garner, Philadelphia, for appellee.
    Before ROWLEY, President Judge, CIRILLO and JOHNSON, JJ.
   CIRILLO, Judge:

This is an appeal from an Order of the Court of Common Pleas of Philadelphia County granting partial summary judgment in favor of the appellee, The Carlton House Partners, Ltd. (“Carlton House”). We affirm.

On November 29, 1984, the appellants, Howard B. and Heddie A. Mintz, (collectively “the Mintzes”), entered into a commercial lease agreement with an agent of Carlton House. The agreement contemplated the lease of premises located on the Arcade level of the Carlton House Apartments. By its terms, the lease was intended to operate for a term of one hundred and twenty-one months beginning on December 1, 1984.

On November 21, 1986, the Mintzes filed a complaint in the Court of Common Pleas of Philadelphia County alleging breach of contract, breach of warranties, breach of the covenant of quiet enjoyment, negligence, and intentional infliction of emotional distress. The factual allegations common to all of the Mintzes’ claims focused upon Carlton House’s alleged failure to make certain improvements to the leased premises as stipulated in the lease agreement. Specifically, the Mintzes’ claim that Carlton House failed to provide an adequate heating, ventilation, and air-conditioning unit for the leased premises. The Mintzes contend that Carlton House’s failure to make such improvements constitutes a breach of the lease agreement and that they are therefore entitled to damages arising from that breach.

In its answer to the complaint, Carlton House denied that it breached the lease agreement and asserted a counterclaim for unpaid rent and other expenses due under the lease.

While the Mintzes’ action was pending in the Court of Common Pleas, an involuntary Chapter 11 bankruptcy petition was filed against Carlton House in the United States Bankruptcy Court for the Eastern District of Pennsylvania. Carlton House converted the filing to a voluntary bankruptcy proceeding and submitted a plan for reorganization thereunder. See In re TM Carlton House Partners, Ltd., 91 B.R. 349 (Bankr.E.D.Pa.1988). The Mintzes were prevented from pursuing their action in the Philadelphia County Court of Common Pleas during the pendency of the bankruptcy proceeding by operation of the automatic stay provision of the Bankruptcy Code.

On May 20, 1988, the Mintzes applied to the bankruptcy court for relief from the automatic stay so that they might go forward with their state law action against Carlton House. This motion was denied after a hearing on July 7, 1988 by the Honorable David A. Scholl, United States Bankruptcy Judge. The order issued in conjunction with the denial of the Mintzes’ motion granted Carlton House the opportunity to proceed in state court against the Mintzes on any claims or counterclaims that may have existed prior to the filing of the bankruptcy petition.

The Mintzes subsequently filed a proof of claim against Carlton House in the bankruptcy proceeding with the hope of participating in Carlton House’s plan of reorganization. An evidentiary hearing was conducted in the bankruptcy court on September 20, 1989 specifically to determine the validity of the Mintzes’ proof of claim. The bankruptcy court found that Carlton House was not liable to the Mintzes “in any amount” and therefore refused to award the Mintzes a claim for either pre- or post-petition damages. In re IM Carlton House Partners, Inc., Bankr. No. 88-10774S, 1989 WL 120577 (Bankr.E.D.Pa. Oct. 11, 1989). The Mintzes’ post-trial motions were denied by order of the bankruptcy court on November 29, 1989. On April 16, 1990, the Honorable James T. Giles of the United States District Court issued an order affirming the bankruptcy court’s disallowance of the Mintzes’ proof of claim. In re IM Carlton House Partners, Inc., Civ. No. 90-0084, 1990 WL 44698 (E.D.Pa. Apr. 16, 1990).

Subsequent to the confirmation of its plan of reorganization on May 31, 1989, Carlton House filed a motion for partial summary judgment in the Philadelphia County Court of Common Pleas with respect to all of the issues raised in the Mintzes’ complaint. The motion was granted on August 24, 1990 by the Honorable Samuel M. Lehrer. This timely appeal was then filed.

The Mintzes raise the following issues for review:
I. Whether the Common Pleas Court committed reversible error in granting defendant’s Motion for Summary Judgment despite the existence of disputed issues of material fact.
II. Whether the Common Pleas Court committed reversible error in holding that the Order of the Bankruptcy Court entered after an evidentiary hearing is res judicata with regard to the claims set forth in the plaintiff’s complaint.

The Mintzes’ first argument is that the trial court erred in its application of the standard for ruling upon a motion for summary judgment. The standard for granting summary judgment is set forth in Pennsylvania Rule of Civil Procedure 1035(b). That section provides that summary judgment

shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file ... show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

Pa.R.C.P. 1035(b) (emphasis added); see also 6 Standard Pa. Practice § 32:1 (1986).

The court of common pleas determined that the “entry of the order confirming the plan [of reorganization] acts as a full and complete discharge of any debt which might be otherwise due and owing from [Carlton House].” Mintz v. The Carlton House Partners, Ltd., Civ. No. 3965 (Pa.Com. Pl. Nov. 19, 1990), slip op. at 3. Thus, the court concluded that there was no genuine issue of fact surrounding the alleged liability of Carlton House to the Mintzes which remained to be tried in the court of common pleas.

A determination of whether the grant of a motion for summary judgment is to be upheld requires an appellate court to determine whether the pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law. Overly v. Kass, 382 Pa.Super. 108, 110, 554 A.2d 970, 971 (1989) . If the materials submitted by the parties meet the standards set forth in Rule 1035(b) the case is ripe for summary disposition. Bell Tel. Co. of Pa. v. Uni-Lite, Inc., 294 Pa.Super. 89, 439 A.2d 763 (1982); 6 Standard Pa. Practice § 32:47 (1986). We will not disturb the trial court’s ruling absent an error of law or a manifest abuse of discretion. Vargo v. Hunt, 398 Pa.Super. 600, 581 A.2d 625 (1990) .

The Mintzes also contend that the order confirming Carlton House’s plan of reorganization did not operate as a full and complete discharge of their claims. They argue. that a disputed issue of material fact exists as to whether the entry of the order confirming Carlton House’s plan of reorganization acts as a full and complete discharge of their claims which arose after the date of the confirmation of the plan. Similarly, the Mintzes argue that there has been no final valid judgment on the merits entered by the bankruptcy court which affects the totality of their claims and that the trial court therefore erred in applying the doctrine of res judicata. We disagree.

Section 1141(d) of the Bankruptcy Code provides that the confirmation of a plan of reorganization discharges the debtor from any debt which arose before the date of such confirmation. See 11 U.S.C. § 1141(d). A debt, as that term is used in the Bankruptcy Code, includes the damages which the Mintzes seek to recover. See 11 U.S.C. §§ 101(11), 101(4).

Furthermore, the question of when a debt arises for bankruptcy purposes is to be resolved by application of state law. In re Frenville Co., Inc., 744 F.2d 332, 336 (3d Cir.1984). Under the law of this Commonwealth, a debt occurs at the time of the breach which gives rise to the cause of action. Chittenholm v. Giffin, 357 Pa. 616, 55 A.2d 324 (1947). Therefore, the debt assertedly owed to the Mintzes is deemed to have arisen at the time of the breach which gave rise to the cause of action. Id. We find, as did the trial court, that the breach alleged here occurred prior to the confirmation of Carlton House’s plan of reorganization. Thus, the Mintzes’ “future claims” have been fully and completely discharged by the confirmation of the plan of reorganization pursuant to section 1141 of the Bankruptcy Code. 11 U.S.C. § 1141(d)(1)(A).

Moreover, the bankruptcy court determined that there was no breach of duty on the part of Carlton House. In re TM Carlton House Partners, Inc., Bankr. No. 88-10774S, 1989 WL 120577 (Bankr.E.D.Pa. Oct. 11, 1989). Therefore, the Mintzes are not entitled to damages irrespective of whether they may have arisen prior to or after the confirmation of the plan of reorganization. It is a fundamental principle of jurisprudence that there can be no award of damages without a finding of liability. See Incollingo v. Ewing, 444 Pa. 299, 282 A.2d 206 (1971) (the amount of damages to be awarded must be limited to the amount of the loss sustained). Thus, the final valid judgment entered by the bankruptcy court regarding the lack of merit of the Mintzes’ claims disposes of all claims to damages contained in the Mintzes’ complaint. See Bailey v. Harleysville Mu tual Ins. Co., 341 Pa.Super. 420, 424, 491 A.2d 888, 890 (1985). The time of the transaction or the breach, not the time at which damages may have been incurred, is dispositive of this issue. Kapil v. Ass’n. of Pa. St. College & Univ., 504 Pa. 92, 99, 470 A.2d 482, 485 (1983).

The second issue raised by the Mintzes concerns the propriety of the grant of Carlton House’s motion for partial summary judgment on the grounds of res judicata. In order to determine whether the trial court properly granted this motion we must first decide whether the disallowance of a claim by a United States Bankruptcy Court after an evidentiary hearing is res judicata in the courts of this Commonwealth. If the answer to that question is in the affirmative, we must then determine whether the bankruptcy adjudication actually encompassed the claims set forth in the Mintzes’ complaint. If the bankruptcy court adjudication is entitled to the protection of the doctrine of res judicata and the adjudication encompassed the claims set forth in the Mintzes’ complaint, then the Court of Common Pleas was correct in granting Carlton House’s motion for partial summary judgment.

Summary judgment may properly be granted on the grounds of res judicata and/or collateral estoppel if the trial court, consistent with Pennsylvania Rule of Civil Procedure 1035(b), determines that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Day v. Volkswagenwerk Aktiengesellschaft, 318 Pa.Super. 225, 231, 464 A.2d 1313, 1316 (1983). Under the doctrine of res judicata, “[a] final valid judgment upon the merits by a court of competent jurisdiction bars any future suit between the same parties or their privies on the same cause of action.” Stevenson v. Silverman, 417 Pa. 187, 190, 208 A.2d 786, 788 (1965), cert. denied, 382 U.S. 833, 86 S.Ct. 76, 15 L.Ed.2d 76 (1966); Accord, Bailey v. Harleysville Mutual Ins. Co., 341 Pa.Super. 420, 424, 491 A.2d 888, 890 (1985). The purpose of the doctrine of res judicata is “to minimize the judicial energy devoted to individual cases, establish certainty and respect for court judgments, and protect the party relying on the prior adjudication from vexatious litigation.” Lebeau v. Lebeau, 258 Pa.Super. 519, 524, 393 A.2d 480, 492 (1978). Given this purpose, the doctrine of res judicata must be liberally construed and applied without technical restriction. Hochman v. Mortgage Finance Co., 289 Pa. 260, 137 A. 252 (1927); see also Bearoff v. Bearoff Bros., 458 Pa. 494, 500, 327 A.2d 72, 76 (1974).

Proper application of the doctrine of res judicata requires the concurrence of four conditions: (1) identity of issues; (2) identity of causes of action; (3) identity of persons and parties to the action; and (4) identity of the quality or capacity of the parties suing or sued. Safeguard Mutual Insurance Co. v. Williams, 463 Pa. 567, 574, 345 A.2d 664, 668 (1975); In re Estate of Hillegass, 322 Pa.Super 139, 469 A.2d 221 (1983). Clearly, all of these factors are present in this case.

The Mintzes contend that the application of the doctrine of res judicata was improper because the adjudication of the bankruptcy court is not a final valid judgment on the merits which affects the totality of their claim. We disagree. First, a United States Bankruptcy Judge is a judicial officer and orders and decrees which he or she may issue within the scope of his or her powers are entitled to the same credit as orders and decrees of courts of general jurisdiction. See Hartranft v. Ives, 64 Pa.Super. 338 (1916). Moreover, state courts must give full faith and credit to proceedings of federal courts. U.S.C.A. Const. Art. 4, § 1; 28 U.S.C.A. § 1738; Delaware Valley Citizens’ Council For Clean Air v. Com. of Pa., 755 F.2d 38 (3d Cir.1985), cert. denied, 474 U.S. 819, 106 S.Ct. 67, 88 L.Ed.2d 54 (1985). Therefore, the adjudication of the bankruptcy court is a final valid judgment on the merits of the Mintzes’ claim, and this judgment is entitled to full faith and credit in our courts. Id.

Second, the rule of res judicata extends to every question in the proceedings that was legally cognizable. Nernst Lamp Co. v. Hill, 243 Pa. 448, 90 A. 137 (1914). “It bars the relitigation of issues raised, as well as arguments which might have been raised.” Noetzel v. Glasgow, Inc., 338 Pa.Super. 458, 467, 487 A.2d 1372, 1376 (1985), cert. denied, 475 U.S. 1109, 106 S.Ct. 1517, 89 L.Ed.2d 915 (1986). The “true test by which we are to ascertain whether a final determination in a former action is a bar, or not, to subsequent action, is whether the evidence to support both is the same.” MaGee v. Grange Nat. Bank of Wyoming County, 149 Pa.Super. 477, 478, 27 A.2d 488, 489 (1942).

The allegations of fact contained in the Mintzes’ brief, assuming that they may be proven, are identical to those used to support the validity of their claim in the bankruptcy court. Both the evidence used in the trial on the merits of the Mintzes’ proof of claim and the facts alleged in their complaint relate to the same core of operative facts surrounding the disagreement over the heating, venting, and air-conditioning unit located in the leased premises. See In re TM Carlton House Partners, Inc., Bankr. No. 88-10774S, 1989 WL 120577 (Bankr.E.D.Pa. Oct. 11, 1989). The Mintzes are merely attempting to recover another alleged element of damages arising from the same transaction. The validity of the Mintzes’ cause of action has been litigated and decided adversely to their interests in the bankruptcy court. Id. Therefore, the Mintzes may not now assert a claim that was legally cognizable previously in the bankruptcy adjudication. Noetzel v. Glasgow, 338 Pa.Super. at 467, 487 A.2d at 1376. This includes their claim for damages allegedly arising since the confirmation of the Carlton House’s plan of reorganization, because that issue was legally cognizable in the bankruptcy adjudication.

The bankruptcy court did in fact review the Mintzes’ claim on the merits. The court found that “the debtor is not liable to the claimant in any amount.” In re TM Carlton House Partners, Inc., Bankr. No. 88-10774S (Bankr.E.D.Pa. Oct. 11, 1989) (emphasis added). This clearly includes all damages which could have resulted from the alleged breach of the lease, irrespective of the time at which the Mintzes may have incurred them. Therefore, the order of the bankruptcy court dismissing the Mintzes’ claim is a final valid decision on the merits and, as such, is entitled to the protection of the doctrine of res judicata. Stevenson v. Silverman, 417 Pa. 187, 190, 208 A.2d 786, 788 (1965); Bailey v. Harleysville Mutual Ins. Co., 341 Pa.Super. 420, 424, 491 A.2d 888, 890 (1985).

The Mintzes remaining arguments against the application of the doctrine of res judicata are: (1) that the parties are not identical because the bankruptcy proceeding transformed Carlton House into a new entity, and (2) that the capacity of Carlton House was different in the two proceedings. Assuming, arguendo, that these assertions have merit, they do not affect the applicability of the doctrine of res judicata.

The rule [of res judicata] should not be defeated by minor differences of form, parties, or allegations, when these are contrived only to obscure the real purpose, a second trial on the same cause between the same parties. The thing which the court will consider is whether the ultimate and controlling issues have been decided in a prior proceeding in which the present parties actually had, an opportunity to appear and assert their rights. If this be the fact, then the matter ought not be litigated again, nor should the parties, by a shuffling of plaintiffs on the record, or by change in the character of the relief sought, be permitted to nullify the rule.

Stevenson v. Silverman, 417 Pa. 187, 192, 208 A.2d 786, 788 (1965) (emphasis added); see also In re Jones & Laughlin Steel Corp., 328 Pa.Super. 442, 450, 477 A.2d 527, 531 (1984). The ultimate issue of liability was decided by the bankruptcy court in a proceeding in which the parties had an opportunity to appear and assert their rights. Therefore, the doctrine of res judicata bars any further proceedings on this subject matter. Stevenson, supra; In re Jones, supra.

The Mintzes’ final argument is that the doctrine of collateral estoppel should apply to the Carlton House’s counterclaim for unpaid rent and other expenses due under the lease. The doctrine of collateral estoppel, or issue preclusion, may successfully be asserted if:

1) the issue decided in the prior adjudication was identical with the one presented in the latter action, 2) there was a final judgment on the merits, 3) the party against whom the plea is asserted was a party or in privity to the prior adjudication, and 4) the party against whom it is asserted had a full and fair opportunity to litigate the issue in question in a prior action.

Safeguard Mutual Insurance Co. v. Williams, 463 Pa. 567, 574, 345 A.2d 664, 668 (1975). None of these factors are present in this action. The counter-claim was not litigated in the bankruptcy court and, in fact, the counter-claim was expressly preserved by the bankruptcy judge. Thus, the Mintzes’ assertion of collateral estoppel is without merit. Id.

Order affirmed.

      . Section 362(a) of the Bankruptcy Code provides that the filing of a petition:
      operates as a stay, applicable to all entities, of—
      (1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of a case under this title, or to recover a claim against the debtor that arose before the commencement of a case under this title; * * * (6) any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case under this title.
      11 U.S.C. § 362(a).

      . Section 501 of the Bankruptcy Code requires the holder of an unsecured claim to file a proof of claim with the bankruptcy court. 11 U.S.C. § 501. If no proof of claim is filed for an unsecured claim, the general rule is that such claim will be disallowed in bankruptcy. See Notes of Committee on the Judiciary, Senate Report No. 95-989; 11 U.S.C. § 501. A proof of claim is deemed allowed under section 502(a) of the Code unless a party in interest objects. 11 U.S.C. § 502(a). If such objection is made the bankruptcy court must give notice and a hearing to determine the amount of the claim and whether the claim will be allowed. 11 U.S.C. § 502(b).

      . Although the Mintzes indicate in their brief that they have “future claims" against Carlton House, it is apparent that the expenses to which they refer were accrued as a result of past dealings with Carlton House. The Mintzes have failed to allege any new causes of action, different from those set forth in the original complaint. Thus, we cannot accept their classification of "future claims" where the pleadings show only one breach and only one level of damages.

      . “The true test in determining when a cause of action arises or accrues is to establish the time when the plaintiff could have first maintained the action to a successful conclusion.” Kapil v. Ass’n of Pa. St. College & Univ., 504 Pa. 92, 99, 470 A.2d 482, 485 (1983). Although the Mintzes may have incurred expenses since the time of the confirmation of Carlton House’s plan of reorganization, those expenses relate to the single core of operative facts which occurred prior to the confirmation of the Carlton House’s plan of reorganization. Those are the operative facts upon which the Mintzes could have first maintained the action to a successful conclusion. Thus, the Mintzes’ causes of action must be deemed to have accrued prior to the confirmation of Carlton House’s plan of reorganization even though the expenses which they may have suffered as a result of the alleged breach were incurred after the date of the confirmation. Id. This is consistent with our policy that all damages, whether past, present, or future, must be determined in a single action. See Schwegel v. Goldberg, 209 Pa.Super. 280, 228 A.2d 405 (1967); Accord, Martin v. Johns-Manville, 322 Pa.Super. 348, 469 A.2d 655 (1983); rev’d on other grounds, 508 Pa. 154, 494 A.2d 1088 (1985).

      . Section 1141(d) provides:
      (d)(1) Except as otherwise provided in this subsection, in the plan, or in the order confirming the plan, the confirmation of a plan— (A) discharges the debtor from any debt that arose before the date of such confirmation, and any debt of a kind specified in section 502(g), 502(h), or 502(i) of this title, whether or not—
      (i) a proof of the claim based on such debt is filed or deemed filed under section 501 of this title; (ii) such claim is allowed under section 502 of this title; or (iii) the holder of such claim has accepted the plan; * * *

      11 U.S.C. § 1141(d) (emphasis added).

      . The Bankruptcy Code defines debt as "liability on a claim.” 11 U.S.C. § 101(11).
      A claim is defined as any:

        ía) right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured; or
      (B) right to an equitable remedy for breach of performance if such breach gives rise to a right of payment, whether or not such right to an equitable remedy is reduced to a judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured, or unsecured.
      11 U.S.C. § 101(4).

      . The Mintzes seek support for their position in a section of the Bankruptcy Court’s opinion which denied their request to append a claim for post-petition damages. The bankruptcy court pointed out that the bankruptcy code requires that a claim must be valued as of the date of the filing of the bankruptcy petition. See 11 U.S.C. § 502(b). An examination of the Notes of Committee on the Judiciary, Senate Report No. 95-989, following section 502 reveals that Congress intended to have the bankruptcy court liquidate the full amount of debt owed to a claimant as of the date of the filing of the bankruptcy petition. See In re Invader Corp., 71 B.R. 564 (Bankr. W.D.Tex.1987). Thus, this section requires that any claim for damages which will be incurred after the filing of the petition, but as a result of the original breach, be reduced to a sum certain so that the claim may be included in the debtor’s plan of reorganization. The purpose of this section is to "afford the debtor complete bankruptcy relief." Notes of Committee on the Judiciary, Senate Report No. 95-989. The section should not be interpreted in such a way as to prevent the inclusion of damages which may arise later in time, but as a result of the original transaction, from the bankruptcy proceeding. To the contrary, a valid claim to post-petition damages must be included in the plan so that the purposes of the Bankruptcy Code may be best served.


author: CAVANAUGH, Judge.

text:
    595 A.2d 1247
    John MOHLER and Anna J. Mohler, his Wife, Appellants, v. William F. JEKE and Mary C. Jeke and Mary Kearney, t/a J & K Personal Care Home and Jeke, Inc. v. WESTERN PENNSYLVANIA HOSPITAL.
    Superior Court of Pennsylvania.
    Argued April 24, 1991.
    Filed Aug. 7, 1991.

      Marc Rosenwasser, Pittsburgh, for appellants.
    Bernard J. Sweer, Pittsburgh, for Jeke & Kearney, appellees.
    Before ROWLEY, President Judge, and CAVANAUGH and HESTER, JJ.
   CAVANAUGH, Judge.

This is an appeal from the entry of a compulsory nonsuit against the plaintiff in favor of defendant J & K Personal Care Home. For the reasons stated hereinafter, we affirm the order of the lower court denying appellants’ motion to remove the nonsuit.

The facts are as follows. One of the plaintiffs in this case, John Mohler , was a seventy-six year old male suffering from declining health. He became a resident at the J & K Personal Care Home in February of 1985. On several occasions as a result of medical conditions, Mr. Mohler was brought to the hospital to be examined. On each occasion he was examined by the hospital, and his return to J & K was approved. Mr. Mohler’s personal physician ratified these decisions. The last such occasion was on April 18, 1986. Mr. Mohler was taken to West Penn Hospital, examined, and returned to J & K around 8:00 p.m. Mr. Mohler was put to bed. About 3:00 a.m. on April 19, Mr. Mohler awoke, and while in an incoherent state pushed his way past an attendant and ran into the street. He fell while outside and injured himself. This suit against the personal care home ensued.

The case went to trial in May of 1990. After presentation of the plaintiffs’ case, the lower court judge granted the defendant’s motion for the entry of a non-suit and denied the motion to take off the non-suit. This appeal followed.

We begin our analysis by noting the proper standard for a trial court’s entry of a compulsory non-suit, as stated in Reimer v. Tien, 356 Pa.Super. 192, 196-7, 514 A.2d 566, 568 (1986).

“A judgment of non-suit can be entered only in clear cases and plaintiff must be given the benefit of all evidence favorable to him together with all reasonable inferences of facts arising therefrom, and any conflict with the evidence must be resolved in his favor.” Engle v. Spino, 425 Pa. 254, 256, 228 A.2d 745, 746 (1961 [1967]). When a compulsory non-suit is entered, “lack of evidence to sustain the action must be so clear that it admits no room for fair and reasonable disagreement” McAuliffe v. Constantine, 228 Pa.Super. 52, 54, 323 A.2d 158, 159 (1974). “When an issue of credibility is raised on motion for compulsory non-suit, it is not within the province of the trial judge to determine the believability of the plaintiff’s testimony.” Scott v. Purcell, 490 Pa. 109, 113, 415 A.2d 56, 58 (1980). “Unless there are no conflicting inferences to be drawn it is far better to hear the defense so that the appellate court may have the benefit of findings of fact and conclusions of law.” Shechter v. Shechter, 366 Pa. 30, 32-33, 76 A.2d 753, 755 (1950). Finally, a non-suit may only be entered where “the facts and circumstances lead unerringly to but one conclusion” Paul v. Hess Bros., 226 Pa.Super. 92, 94-95, 312 A.2d 65, 66 (1973).

The appellants first contend that they successfully presented a prima facie case so that the entry of a compulsory non-suit was erroneous.

Appellants’ complaint indicates that they proceeded on two direct theories of recovery. There is first a theory of breach of contract, and second a theory sounding in negligence. The breach of contract theory contends that the Personal Home Care facility had contracted to care for Mr. Mohler, and failed to do so. The negligence claim contends that the Home Care Facility was negligent in its operation and breached its duty of care to Mr. Mohler.

Viewing the evidence presented by the plaintiff in its entirety and accepting all reasonable inferences in the plaintiff-appellant’s favor, we note the following facts. The plaintiffs were paying $850.00 a month for care at the J & K personal boarding home. According to the testimony of Margaret Splane, decedent’s daughter, this care entailed meals, supervision, laundry services, and other people around for communication. On her cross examination she testified that the decedent’s physician, Dr. Singh advised that decedent was able to care for himself and did not need to go into a skilled nursing facility. She testified that he was ambulatory and continued to be ambulatory until the time of his fall.

The agreement signed by all parties relating to the care of Mr. Mohler stated, in the section headed “Resident Rights”, that “[t]he resident is not restricted in his/her right to leave”. The testimony of the night duty attendant, called by the plaintiff, indicated that after the decedent’s return from the hospital on the night in question, he was disoriented and confused. He was put to bed, and around 3:15 a.m. he arose in a state of delirium, stated he had to get home to see “the baby”, pushed his way past an attendant who tried to stop him, and ran out of the facility. While outside, Mr. Mohler fell and injured himself.

Appellants contend that the trial court erred in granting the non-suit because the plaintiffs had established a prima facie case of breach of contract. They rely on allegations of mismanagement, statutory violations, misadvertising, lack of established procedures, and untrained staff as foundation for this claim. Even when all these alleged breaches are accepted as true for purposes of considering the non-suit, the appellants are not entitled to recover.

In order for a plaintiff to recover incidental damages under a breach of contract theory, the damages suffered must be direct and foreseeable results of the breach. Reimer, supra, 356 Pa.Super. at 208, 514 A.2d at 575. Further, losses are not recoverable in a breach of contract action when there is no causal relationship between the breach and the loss. Robinson Protective Alarm Co. v. Bolger & Picker, 512 Pa. 116, 122-3 note 9, 516 A.2d 299, 303 note 9 (1986).

The decedent had a right to leave and exercised that right in spite of the night duty attendant’s opposition. He was injured while outside of the premises. None of the alleged breaches of contract committed by the defendant as enumerated by the plaintiff in his complaint caused this particular injury. The contract entered into by the plaintiff and defendant called for provision of meals, a room with furnishings, assistance in providing medicines, management of persona] affairs, and laundry. It did not call for 24 hour supervision or restraint. In fact, as required by the appropriate administrative regulation regarding personal care home contracts, the contract itself called for nonrestriction of the resident’s freedom to leave. The unforeseeable aberrant behavior of the plaintiff following his release from the hospital caused his injuries; not an alleged training, management, or statutory violation.

The trial court additionally noted that the argument presented by the plaintiffs was, in effect, that the acceptance of a resident implies an agreement to protect him from harm no matter how or where it occurs, even in circumstances such as existed here wherein a health care facility has impliedly certified that the resident is mentally fit to be kept in a personal care home. The learned trial judge rejected this argument. We agree with that determination, and note that the personal care home did not agree in its contract to become an insurer of its clients. This claim of breach of contract therefore fails.

Appellant next claims that the defendant-appellee failed to meet its standard of care and thus was negligent. Relying in large part upon certain restatement sections relating to the duties of a care provider, they contend J & K should be held to a high standard of care and thus liability because they failed to supervise and train the staff to care for Mr. Mohler correctly, increasing the risk of harm to him. The argument further asserts that once evidence of this increased risk of harm is introduced, the case must go to the jury.

We begin our analysis by noting that personal care homes are regulated by the Commonwealth in Title 55, § 2620 et seq. of the Pennsylvania Code and provide a lower cost alternative to an intermediate care facility with skilled personnel or a nursing home for constant care. In order to qualify for this type of care and be admitted to a personal care home a person must have a certificate from a licensed physician stating that he does not require the services of an intermediate care or skilled nursing facility. Mr. Mohler had such a certification.

Section 2620.33 provides specifically those services to be supplied by a personal care home-assistance in personal hygiene, tasks of daily living, medications, and financial management. Other sections specify the required types of laundry services, food services, sleeping quarters, furniture, housekeeping, maintenance, and fire safety.

Staff requirements are set forth in sections 2620.31 and 2620.32 and essentially state that the staff members must be over 16 to provide personal services, over 18 for a person responsible for the operation of the home, and be of good character and good health with the ability to follow directions. The personal care home as set forth in the regulations clearly does not anticipate any degree of specialized care other than basic assistance.

The procedure for removing a resident from the home is explicitly spelled out in the administrative regulations. Section 2620.35 states in pertinent part that:

(a) If the resident becomes suddenly ill or injured and is unable to secure necessary care, the provider shall secure necessary assistance or care. Arrangement shall be made in advance between the provider and the resident regarding the physician or dentist and designated person or community agency to be contacted in case of illness or injury and the persons shall be contacted.
(b) If the resident’s medical situation, as determined by a physician, indicates the need for a transfer to a health care facility, the provider shall notify the resident’s designated person and shall provide whatever assistance is necessary in making arrangements for the resident’s transfer to an appropriate facility.

The evidence indicates that when the plaintiffs were looking for care for Mr. Mohler, they were presented with three options. They could have attempted to care for him at home; sent him to an expensive skilled care nursing home (Mr. Mohler was transferred to St. Joseph’s home, which cost $1800 to $1900 a month), or a personal care home (for about $850 a month). After consulting with Mr. Mohler’s physician, a personal care home was selected.

While at the personal care home, Mr. Mohler experienced a number of spells of disorientation. He was returned by the hospital each time, and his physician allowed him to remain in the personal care home. There was no evidence of any harm to the plaintiff during any of these spells, nor was there any testimony that he had ever tried to push his way out of the home before the incident which resulted in his injury. Each time the victim experienced dementia or disorientation, he was brought to the hospital to be examined. The last time was no different from any of the others, and there was no evidence to indicate that the home was then incapable of keeping Mr. Mohler as a boarder.

Initially, we note that the appellee has complied with the administrative regulation regarding personal care homes. However, compliance with administrative regulations only relieves the defendant of liability for negligence per se, and does not establish that due care was exercised. Berkebile v. Brantly Helicopter Corp., 219 Pa.Super. 479, 281 A.2d 707 (1971).

Appellant, to establish the standard of due care, points to Section 314(A) of the Restatement of Torts, Second, which provides as follows:

1. A common carrier is under a duty to its passengers to take reasonable action.
(a) . To protect them against unreasonable risk of physical harm.
(b) . To give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others.
4. One who is required by law to take or who voluntarily takes the custody of another under circumstance such as to deprive the other of his normal opportunities for protection is under a similar duty to the other.

We further note that this court has adopted the view of the Restatement of Torts, Second, for purposes of liability regarding services rendered. Cantwell v. Allegheny County, 319 Pa.Super. 255, 466 A.2d 145 (1983). See also Patentas v. United States, 687 F.2d 707 (3d Cir.1982) where the Third Circuit has adopted this view. The Restatement notes, at section 323 the general rule to be followed in such a case:

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

Appellant contends in his negligence claim that both avenues establishing liability have been shown; i.e., that the failure of the defendants in the overall training programs of their staff increased the risk of harm to the plaintiff, and the harm resulted from the failure of the defendants to exercise reasonable care to perform their undertaking.

Pennsylvania, however, has long held that the actions of the defendant must be unreasonable, or expose the plaintiff to an elevated risk of foreseeable harm. See, e.g., Maize v. Atlantic Refining Co. 352 Pa. 51, 41 A.2d 850 (1945) (The law imposes a duty to use due diligence to avoid causing harm, which duty is breached by any legally harmful act or omission which might have been foreseen and avoided); Cantwell v. Allegheny County, supra (One who undertakes to render services is liable to third persons if failure to exercise reasonable care increases the risk of such harm [emphasis added]); St. Clair v. B & L Paving Co., 270 Pa.Super. 277, 411 A.2d 525 (1979) (Those who undertake an activity pursuant to a contract have both a self-imposed contractual duty and a social duty imposed by law to act without negligence; the social duty extends to persons who are within the foreseeable orbit of harm, even though they may be strangers to the contract); Sowicz v. U.S., 368 F.Supp. 1165, affirmed, 505 F.2d 731 (E.D.Pa.1973) (Negligence is the failure to do what is reasonable under the circumstances, or the doing of an act which is unreasonable under the circumstances).

The evidence as put forth during the plaintiffs’ case shows that the defendants acted reasonably. This is especially true in light of the administrative regulations reproduced above. When the plaintiffs’ decedent acted in an incoherent manner, he was taken to the hospital to be examined. The treating physician permitted his return, and he was put to bed. The appellants place great emphasis on the fact that this had happened many times before and thus the defendants should have been on notice that Mr. Mohler needed extra care. The evidence unequivocally supports the opposite proposition. Each time, a period of incoherence occurred previously, Mr. Mohler had been returned to the home and put to bed, and that was the end of the episode. There was nothing to indicate that Mr. Mohler’s behavior would be any more unusual on the evening of his accident. The attendant attempted to stop Mr. Mohler, and was unable to. We disagree with appellant’s contentions; clearly this was reasonable, and the events which transpired that evening resulting in injury to Mr. Mohler were not foreseeable.

Appellants also contend that the overall training of the staff led to an increased risk of harm to Mr. Mohler and thus created another source of liability. For purposes of clarity, we reiterate the restatement section relied upon by the plaintiff in pertinent part:

One who undertakes ... to render services to another ... is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care ... if his failure to exercise such care increases the risk of such harm, [emphasis added] Restatement of Torts, Second, Section 323

Appellants claim that installation of door buzzers to alert the staff of a resident’s exiting the building, entry in a log book of a notation to keep a close watch on Mr. Mohler, and, somehow, a new corporate charter (Jeke, Inc.’s charter was initially granted to a restaurant) would have reduced the risk of harm to Mr. Mohler. These claims are clearly unsupported by the evidence. The attendant in this instance was aware of Mr. Mohler’s attempt to leave the facility, and attempted to stop him. How further training would have altered the situation is unclear, as Mr. Mohler physically pushed his way past her. The buzzer would have served to indicate that which was apparent to the attendant—that Mr. Mohler was leaving the facility. Entry of a notation in the log book would not have further assisted the attendant in stopping Mr. Mohler, and we fail to see how the origins of the corporate charter have any relevance to the situation.

The lower court determined that causation was lacking in these contentions, and we agree with that determination. The risk that this particular harm would occur was not elevated by the alleged failings of the personal care home, as required in Restatement section 323. The unfortunate incident involving Mr. Mohler was not foreseeable at the time it occurred, and the defendants did act reasonably.

This court has noted previously that the mere happening of an accident does not give rise to a presumption of negligence. Commonwealth v. King, 298 Pa.Super. 499, 444 A.2d 1294 (1982). The plaintiff bore a burden of showing that the elements of negligence had been established, and did not do this with the evidence it presented. We therefore will not disturb the decision of the lower court.

Appellant additionally claims that the lower court erred in suppressing evidence relating to the training of the staff and defendants. We initially note that the admissibility of evidence is a question left to the sound discretion of the trial judge and will not be reversed absent an abuse of that discretion. Commonwealth v. Claypool, 508 Pa. 198, 495 A.2d 176 (1985). At trial, a defense objection was sustained when plaintiffs counsel attempted to elicit testimony as to the educational levels and prior training of Defendant Jeke. The trial judge, relying on the administrative guidelines set forth in the Pennsylvania Code, determined that all that was necessary as a minimum qualification to run a personal care home was ordinary common sense. As we agree that training is unrelated to this particular cause of action, we do not find an abuse of discretion in the sustaining of the objection, and therefore decline to reverse the decision of the lower court in that regard.

In a related claim, the appellant asserts that the trial court erred in equating a licensing standard with the standard of care. Specifically, the appellant claims that the lower court erred in finding that as the vague licensing standards had been met, a finding of negligence was precluded. As we have already determined that appellant could not prevail on the negligence claim based on the standard of care, this claim is moot and need not be addressed here.

Appellant finally claims that the lower court erred in granting a non-suit as all the evidence was oral testimony, and thus it was for the jury to decide the credibility of the witnesses. Appellants cite Kopar v. Mamone, 419 Pa. 601, 215 A.2d 641 (1966) in support of this proposition. In that case, a directed verdict for the plaintiffs which was founded on oral testimony, even though uncontradicted, could not stand.

The rationale behind such a holding can be traced back to the words of Justice Musmanno of our supreme court in Dorn v. Leibowitz, 387 Pa. 335, 340, 127 A.2d 734, 737 (1956). “From time immemorial, it has been the province of the jury, in trespass cases, where oral testimony is concerned, to pass upon the credibility of witnesses, even though uncontradicted by defendant witnesses or even though the defendant introduces no testimony at all.” (emphasis added)

The due process orientation of this argument is self-evident. If the law is to impose liability upon a defendant (and thus create a victory for the plaintiff) then issues of credibility must be passed upon so as not to deprive a person of property without the due process rights afforded him or her under the Federal and State Constitutions. However, that differs from the case instantly. In the granting of a non-suit, there are no due process considerations as the defendant has prevailed. The trial judge in this case ruled that the plaintiff had not put forth enough evidence to establish a cause of action. Our standard of review, which entails taking all the evidence in the light most favorable to the plaintiff, ensures that there is no need to pass upon the credibility of the witnesses. Thus, this claim must fail.

Order affirmed.

      . Plaintiff has since died of causes unrelated to this case.

      . The third claim was that of Mr. Mohler’s wife, for the loss of service and society.

      . Title 55, § 2620.14 of the Pennsylvania Code.


author: HESTER, Judge:

text:
    595 A.2d 1254
    COMMONWEALTH of Pennsylvania v. Isaac Kim GILBERT, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 15, 1991.
    Filed Aug. 12, 1991.
    Petition for Allowance of Appeal Denied Dec. 13, 1991.

      Shelley Stark, Public Defender, Pittsburgh, for appellant.
    Kemal A. Mericli, Asst. Dist. Atty., Pittsburgh, for the Com., appellee.
    Before CIRILLO, JOHNSON and HESTER, JJ.
   HESTER, Judge:

Appellant, Isaac Kim Gilbert, appeals the December 18, 1990 denial of his petition filed under the provisions of the Post-Conviction Relief Act. The issue presented is whether a post-conviction petitioner must automatically be granted the right to petition the Supreme Court for allowance of appeal nunc pro tunc from our prior affirmance of his criminal conviction on direct appeal, regardless of the merits of the issue foregone by direct appeal counsel. We conclude that a defendant does not automatically have that right and affirm the decision of the PCRA court, which denied appellant’s second petition for post-conviction relief.

On August 22, 1985, a jury convicted appellant of attempted homicide, aggravated assault, and carrying an unlicensed firearm. The criminal incident occurred on October 1, 1984. The victim, Regis Kelly, was a Pittsburgh Police Officer who was attending an event at Three Rivers Stadium in Pittsburgh with two of his friends, Rose DiVicino and fellow officer Edward Luke. Both officers were off-duty at the time. Officer Kelly testified as follows. While Kelly and Rose were getting refreshments, appellant threw napkins at Rose. Rose and appellant apparently had been involved in a romantic relationship. Kelly asked appellant, whom Kelly said he did not know, if he had thrown the napkins deliberately, and appellant responded that he had. The officer decided to walk away.

As he turned to leave, Officer Kelly felt something strike his back. Kelly informed appellant that he was a police officer and that appellant should calm down. Kelly stated that appellant then struck him in the face while Willard Clark, appellant’s companion, jumped him and threw him to the ground. Kelly freed himself from the two men, pulled out his badge, and informed them that they were under arrest. Appellant pulled out a revolver and pointed it at the officer’s head. Kelly told appellant to put the gun away, but he did not comply. The officer then drew his own revolver, pushed appellant back, and again told him that he was under arrest. According to Officer Kelly, appellant then started to rush through the crowd, shouting threats at the officer, including a threat to kill him by shooting him in the face. Kelly chased appellant, who eventually left the stadium through a turnstile and hid behind a pillar. When Kelly followed, appellant came from behind the pillar and fired one shot, which struck the officer in the face. Kelly returned the fire, and appellant was struck by four bullets.

Robert Yankowski witnessed the incident and testified as follows. Appellant initiated the altercation by pulling on Rose’s coat. The two men exchanged words, and Officer Kelly started to walk away. Appellant then punched Kelly, Clark joined the fight, Kelly backed up and displayed his wallet to appellant, and appellant drew a gun. Kelly then drew his gun, the two men talked, and appellant started to leave the refreshment area with Kelly following. The witness saw appellant leave the stadium through a turnstile, hide behind the pillar, and fire his gun at Kelly as Kelly followed him through the turnstile. Mr. Yankowski stated positively that appellant fired first.

In his defense, appellant presented a number of witnesses who gave various versions of events. One suggested that Officer Kelly initiated the altercation by throwing a drink on appellant’s coat. Several thought that Kelly drew his gun first. Another stated that appellant did not have his gun drawn while leaving the refreshment area and drew it only after Kelly followed him. The witnesses, however, consistently stated that Kelly did not draw his revolver until he was attacked physically by appellant. Defense witnesses also confirmed that Kelly identified himself as an officer and attempted to place appellant under arrest before appellant left the refreshment area. Clark testified for appellant, giving a completely different version of events. He stated that appellant drew his gun after Kelly both physically attacked appellant and drew his gun and that appellant tried to leave the area when Kelly displayed his gun.

Post-trial motions, which contained numerous allegations of trial error, were filed and denied. Appellant was sentenced to six to twelve years imprisonment. The sentencing transcript indicates that after imposition of sentence, the sentencing court informed appellant that he had the right to appeal within thirty days and that he had the right to proceed as an indigent and to be provided “free counsel.” Notes of Testimony, 3/20/86, at 8. Trial counsel, who was privately retained, continued to represent appellant on direct appeal and asserted that the jury instructions were in error. We affirmed. Commonwealth v. Gilbert, 364 Pa.Super. 645, 525 A.2d 815 (1987). No petition for allowance of appeal was filed.

On August 11, 1988, appellant filed his first petition for post-conviction relief. Counsel was appointed. Two issues were addressed by the PCRA court when it denied this petition. The court rejected appellant’s allegation that trial counsel was ineffective for failing to introduce evidence regarding appellant’s injuries. The court observed that evidence regarding appellant’s injuries, including appellant’s discharge summary, had been introduced at trial. The court also noted that appellant’s affidavit supporting post-conviction relief indicated that after trial, Officer Kelly had made statements which indicated that he had been the aggressor in the incident. The court concluded that the statements would be used solely for impeachment purposes and therefore were not grounds for the grant of a new trial. The appeal from denial of this first post-conviction petition was quashed as untimely.

On November 14, 1989, appellant filed a second, counseled petition for post-conviction relief, raising numerous allegations of error. Among other relief, appellant sought reinstatement of his right to seek a petition of allowance of appeal from our decision in the direct appeal. Hearings were held on this petition on January 19, 1990, and August 1, 1990. This appeal followed denial of relief. Appellant raises one issue for our review. He contends that first post-conviction counsel was ineffective for neglecting to raise the ineffectiveness of direct appeal counsel in failing to file a petition for allowance of appeal from our affirmance of the judgment of sentence. He seeks the opportunity to file for Supreme Court review on the issue of the propriety of the jury instructions on self-defense. He fails, however, to present any argument as to how the instructions were in error.

Thus, appellant’s contention is that he automatically is entitled to reinstatement of his right to petition for allowance of appeal nunc pro tunc from our decision in his direct appeal. We observe that the following was established at the PCRA hearings. One issue was pursued on direct appeal—that the jury instructions warranted a new trial because the trial court should have charged on simple assault and incorrectly charged on the use of force in self defense. Direct appeal counsel informed appellant of our decision affirming the judgment of sentence, indicated that he would seek review of that decision by the Supreme Court, and told appellant that he thought the issue should be pursued. Counsel also told appellant about the retainer he required to pursue the matter, the time limitations involved, and the necessity of paying counsel’s unpaid fees. Counsel did not inform appellant that he had the right to free counsel if he could not afford one.

Appellant argues that he wanted to seek review of the jury instruction issue by the Supreme Court, but he could not afford to pay for private counsel. He also suggests that he did not know he had the right to court-appointed counsel. He argues that the fact that he did not know of this right entitles him automatically to reinstatement of his right to petition for allowance of appeal. Appellant relies upon a case decided under the provisions of the former Post-Conviction Hearing Act. That case supports his position.

In Commonwealth v. Clarke, 300 Pa.Super. 366, 446 A.2d 658 (1982), we held blanketly and without discussing the merits of the underlying issue that on a second petition for post-trial relief, a defendant was entitled to reinstatement of his right to petition for allowance of appeal nunc pro tunc from our affirmance of his judgment of sentence on direct appeal. We failed to elaborate on our reasoning, except to refer to Commonwealth v. Daniels, 491 Pa. 289, 420 A.2d 1323 (1980), which holds merely that an indigent defendant has the right to court-appointed counsel for purposes of seeking review by the Supreme Court.

In Commonwealth v. Morrow, 326 Pa.Super. 443, 474 A.2d 322 (1984), we retreated from this per se rule and held that if a defendant knows of his right to file a petition for allowance of appeal, counsel is not automatically deemed ineffective for failing to seek review by the Supreme Court. We concluded that a defendant must elaborate on the merits of the issue that counsel abandoned in failing to seek Supreme Court review.

We conclude that Clarke is no longer viable precedent in light of both new Supreme Court pronouncements in the area of the post-conviction proceedings and the changes made in the right to collateral relief by the enactment of the PCRA. We believe that Morrow contains the reasoning that should be applied under this new authority. When Clarke was decided, layered allegations of ineffective assistance of counsel automatically overcame the waiver and finally-litigated provisions applicable to post-conviction proceedings. Thus, layered allegations of prior counsels’ ineffectiveness warranted review of any issue, regardless of the number of post-conviction petitions already filed by the defendant.

Since our decision in Clarke, however, this principle governing entitlement to post-conviction relief has been abrogated. In Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107 (1988), the Supreme Court specifically overruled prior precedent and concluded that layered allegations of ineffective assistance of counsel were no longer sufficient to overcome the waiver and finally-litigated provisions relating to post-conviction proceedings. The Court in Lawson held that a second or any subsequent petition for post-conviction relief will not be entertained “unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred.” Id., 519 Pa. at 513, 549 A.2d at 112; see also Commonwealth v. Blackwell, 384 Pa.Super. 251, 558 A.2d 107 (1989) (applying Lawson standard of review to second or subsequent petitions filed under the PCRA). This standard is met if the petitioner can demonstrate either that the proceedings resulting in his conviction were so unfair that a miscarriage of justice which no civilized society can tolerate occurred or that he is innocent of the criminal charges.

The issue then is whether counsel’s failure to file a petition for allowance of appeal, without regard to the claim sought to be raised, is a miscarriage of justice requiring reinstatement of the right to seek allowance of appeal. We conclude that it is not. Initially, we must examine whether our holding in Commonwealth v. Hoyman, 385 Pa.Super. 439, 561 A.2d 756 (1989), applies herein. There, we concluded that trial counsel’s failure to file a direct appeal when requested by a defendant is a demonstrated miscarriage of justice, and regardless of the number of prior post-conviction petitions, a criminal defendant has the automatic right to appellate review where the conviction was never accorded that review. We do not believe that the reasoning in Hoyman should be extended to the present case, i.e., where direct review by the Superior Court was exercised but further appellate review was not sought. The reasoning of Hoyman does not apply because Hoyman rests on the significant constitutional right granted in our state constitution to one appellate review of a criminal conviction. Pa. Const. art. V. § 9.

Unlike the one absolute right to appellate review at issue in Hoyman, however, we are dealing in this case with the the right to review by our State Supreme Court of our decision on direct appeal. Review by the Supreme Court following Superior Court review is not constitutionally guaranteed. In fact, it is purely discretionary and will be granted only where there exist both special and important reasons. Pa.R.A.P. 1114. It would be illogical to conclude that a miscarriage of justice occurred by counsel’s failure to seek Supreme Court review unless it is established that the issue was such that review would have been granted by the Supreme court. While one appellate review of a conviction is constitutionally compelled and absolute, Supreme Court review following Superior Court review is purely discretionary. If Supreme Court review is predicated upon demonstration of special and important reasons, how could we conclude that an injustice occurred unless the defendant establishes that the Supreme Court would have exercised its discretion and reviewed the issue?

In addition, we observe that our reasoning in Hoyman also rests upon the United States Supreme Court’s conclusion that an indigent defendant must be afforded free counsel for purposes of a direct appeal of right under the due process and equal protection clauses of the fourteenth amendment to the United States Constitution. Whereas, the United States Supreme Court has concluded that an indigent defendant does not have to be provided free counsel for purposes of a discretionary appeal. Compare Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963) (constitution requires court-appointed counsel for first appeal as of right), with Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974) (there is no constitutional right to court-appointed counsel for pursuit of discretionary appeal).

We therefore hold that the bare allegation that appellate counsel was ineffective for failing to seek allowance of appeal to the Supreme Court does not state a claim that is cognizable under Lawson and that the post-conviction petitioner is not automatically entitled to reinstatement of the right to petition our Supreme Court for review. See also Commonwealth v. Brimage, 398 Pa.Super. 134, 580 A.2d 877 (1990) (where right to direct appeal has been exercised, there is no absolute right to appeal from a PCHA or PCRA order and reinstatement of appellate rights nunc pro tunc from denial of PCRA relief will not be granted automatically upon allegations that PCRA counsel was ineffective for failing to seek appellate review of such denial). In closing, we note that since appellant was informed at the sentencing that he was entitled to court-appointed counsel on appeal if he were indigent, we reject his allegation that he did not know he had the right to court-appointed counsel for purposes of the petition for allowance of appeal. Thus, we cannot consider whether such a lack of knowledge would alter our result in this decision.

Order affirmed.

      . In Commonwealth v. West, 334 Pa.Super. 287, 482 A.2d 1339 (1984), we distinguished the Morrow decision. In Morrow, we noted that the defendant knew about his right to seek allowance of appeal. In West,
        since the record established that the defendant was not timely informed of that right, we granted him the right nunc pro tunc to seek review by the Supreme Court. Since the record herein establishes that appellant knew about his right before the time period for seeking review had passed, West is not pertinent.