author: Per, Curiam,

text:
    North American Savings Company v. Ulrich, Appellant.

      Receivers — Banks and banking — Products.
    Where a receiver has an account as receiver and his personal account in the same bank, and an attachment execution issues against the moneys in his personal account, and it appears that he had deposited two checks belonging to the receivership in his personal account, and it also appears that the amount of the first check had been withdrawn prior to the attachment, and there is testimony that the second check had been deposited in the personal account to pay back, advances previously made out of the receiver’s own moneys to the receivership, the attachment will hold all of the moneys in the receiver’s personal account. The doctrine of following trust funds wrongfully converted by a trustee is not applicable to the facts of such a case.
    Argued April 21, 1910.
    Appeal, No. 79, April T., 1910, by defendant, from order of C. P. No. 3, Allegheny Co., Feb. T., 1907, No. 687, dismissing exceptions to report of referee in case of North American Savings Company v. Henry Ulrich, First National Bank of Allegheny, and Henry Ulrich, Receiver of the Ulrich-Stewart Manufacturing Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    AN firmed.
    Attachment execution.
    By agreement the matters in dispute were referred to J. Garfield Houston as referee, who filed the following report:
    1. On June 6, 1906, the North American Savings Company obtained a judgment against Henry Ulrich and the Ulrich-Stewart Manufacturing Company at No. 922, May Term, 1906, for $4,226.40.
    2. On January 25, 1907, an execution attachment sur the, above judgment was issued at No. 687, February Term, 1907, wherein the First National Bank of Allegheny was summoned as garnishee. This attachment was served on January 25, 1907. The garnishee’s answers to the plaintiff’s interrogatories stated that there was on deposit with the garnishee, in the name of Henry Ulrich, the sum of $1,029.39. On February 11, 1907, Henry Ulrich, by his attorneys, presented a petition to the court in his own right and as receiver of the Ulrich-Stewart Manufacturing Company, for leave to intervene and defend against the plaintiff’s attachment and establish his claim to the sum of $1,000 of the money attached. On the same day the court granted a rule to show cause why the prayer of the petition should not be granted. The plaintiff has voluntarily consented to such intervention.
    3. Henry Ulrich had a personal account in the First National Bank of Allegheny, which at the time of the above attachment was an active account, deposits being made and moneys being checked out at frequent intervals. Checks on this account were signed “Henry Ulrich” and the moneys in this account were used by Mr. Ulrich in carrying on his private business. The money in this account was attached as above stated.
    4. On June 29, 1905, Henry Ulrich had been appointed receiver of the Ulrich-Stewart Manufacturing Company. Prior to that date the Ulrich-Stewart Manufacturing Company had its account in the same bank. When Henry Ulrich was appointed receiver, he continued to deposit in this same account moneys belonging to the receivership, and checked on it for the use of the receivership. This account was active at the date of the attachment and had been since the appointment of the receiver.
    5..The Velte Foundry & Machine Company gave a check payable to Henry Ulrich, dated November 26, 1906, drawn on the Metropolitan Bank in the sum of $650, in payment of a bill for machinery of the UlrichStewart Manufacturing Company purchased by the Velte company from the receiver. This check was indorsed by Henry Ulrich and deposited by him on November 27, 1907, in his personal account in the First National Bank of Allegheny.
    6. The Velte Foundry & Machine Company gave a second check payable to Henry Ulrich, receiver, dated January 18, 1907, drawn on the Metropolitan Bank in the sum of $508.71, in payment of a bill for other machinery of the Ulrich-Stewart Manufacturing Company purchased by the Velte company from the receiver. The selling price of the machinery was $550, but in remitting, the Velte company deducted a contra account or $41.29, owed to them by the receiver. This check was indorsed by Henry Ulrich, receiver, and deposited in the personal account of Henry Ulrich in the First National Bank of Allegheny, on January 18, 1907.
    7. From June 28,1905, when the receiver was appointed, to January 25, 1907, the date of the attachment, Henry Ulrich had been advancing his own money for the payment of debts incurred by him as receiver of the UlrichStewart Manufacturing Company at times when the company was embarrassed by lack of ready cash, and had been reimbursing himself from time to time by applying to his own use moneys of the Ulrich-Stewart Manufacturing Company paid to him as receiver. The books of accounts of the receiver are incomplete, and do not show the amounts of money advanced by Henry Ulrich to the receivership, or the amounts taken by him from the receiver’s funds to repay the advances.' The receiver depended on his memory and loose memoranda, which have not been preserved, to keep the two accounts.
    8. It is not known whether Henry Ulrich owed money to the receivership, or whether the receivership was indebted to Henry Ulrich for moneys advanced by him, at the date of the attachment execution; nor is it known how the balance stood in the accounts between Henry Ulrich and the receivership on November 27, 1906, and on January 18, 1907, the respective dates of deposit of the two Yelte checks.
    9. On November 27, 1906, the personal account of Henry Ulrich in the bank showed a balance of $153.17, which was raised to $803.17, by the deposit of the first Velte check for $650. From this date to January 19, 1907, deposits were made and checks drawn on this account at frequent intervals. The daily balance fluctuated. On January 9, 1907, it reached the lowest point, $8.49. On January 18, 1907, two deposits amounting to $1,461.29 were made, the second deposit including the second Yelte check for $508.71. On the same day Henry Ulrich transferred $400 from his personal account to the account of the Ulrich-Stewart Manufacturing Company. The balance at the close of business on January 18, 1907, was $1,140.88. When the attachment was served on-January 25, 1907, the balance was $1,029.39. The following extract from the ledger of the First National Bank of Allegheny shows the status of Henry Ulrich’s account between January 17 and January 25, 1907:
    Date. Checks. Deposit. Balance.
    Jan. 17 $ 102.02
    “ 18 $ 22.43 79.59

      u a $922.60 1,002.19

      a (( 400.00 602.19

      a u 538.69 1,140.88

      “ 19 205.45 935.43

      (( (C 300.00 1.235.43

      “ 21 77.92 1,157.51

      (( (C 47.08 1.110.43

      “ 22 14.85 1,095.58
    “ 24 16.20 1.079.38
    “ 25 50.00 1.029.38
    10. The $650, obtained on the first Velte check, which was deposited in Henry Ulrich’s personal account on November 27, 1906, does not constitute a part of the deposit attached.
    11. The $508.71, obtained on the second Velte check, which was deposited in Henry Ulrich’s personal account on January 18, 1907, does constitute a part of the deposit attached.-
    12. The $1,158.71, obtained on the two Velte checks, which were deposited in Henry Ulrich’s personal account on November 27, 1906, and January 18, 1907, was appropriated by Henry Ulrich for his own use.
    13. The money in the deposit attached was not assigned to or set aside for the receivership in any way, prior to the daté of the attachment.
    14. The $1,029.39 on deposit in the First National Bank of Allegheny on January 25, 1907, belonged to Henry Ulrich personally.
    From these facts the referee deduces the following: .

      CONCLUSIONS OF LAW.
    1. The burden was on Henry Ulrich to prove that the money attached belonged to the receivership.
    2. The relation between Henry Ulrich, the individual, and ‘Henry Ulrich, the receiver, was that of debtor and creditor.
    3. The doctrine of following trust funds wrongfully converted by a trustee is not applicable to the facts of this case.
    4. Henry Ulrich has failed to establish any right to the money in the deposit attached, either in himself or as receiver of the Ulrich-Stewart Manufacturing Company.
    Upon a full and careful consideration of the case the referee is of the opinion that the North American Savings Company, the plaintiff in this attachment, is entitled to the amount on deposit to the credit of Henry Ulrich in the First National Bank of Allegheny, garnishee, and that judgment may be entered against the said garnishee for $1,029.79.
    On exceptions Evans, J., filed the following opinion:
    The above cause was referred to J. Garfield Houston, Esq., as referee, under the act of 1874, and its supplements, and the cause comes before this court en banc on exceptions to the findings of fact and conclusions of law of the referee.
    On June 6,1906, the North American Savings Company entered a judgment against Henry Ulrich, and on January 25, 1907, an execution attachment sur the above judgment was issued at No. 607, February Term, 1907, and the First National Bank of Allegheny was summoned as garnishee. The garnishee answered that there was on deposit in said bank in the name of Henry Ulrich the sum of $1,029.39. On February 11, 1907, Henry Ulrich, and the Ulrich-Stewart Manufacturing Company were permitted by court to intervene and defend against the plaintiff’s attachment. It was claimed by the UlrichStewart Manufacturing Company that the money on deposit in the First National Bank, while in the name of Henry Ulrich, was really the property of the UlrichStewart Manufacturing Company, of which Henry Ulrich was receiver. It also appears to be undisputed that $650 was paid to Henry Ulrich as receiver of the UlrichStewart Manufacturing Company, by the Yelte Foundry & Machine Company on November 25, 1906, and that Henry Ulrich deposited this money in the First National Bank to his own account; and that the same company-paid to Henry Ulrich, as receiver, on January 18, 1907, $508.71, which money Ulrich deposited in the First National Bank to his individual account. The referee finds as a fact that the $650 deposited by Ulrich on November 25, 1906, was not a part of the money attached by the plaintiff on January 25, 1907, and has further found as a fact that the $508.71 deposited by Ulrich to his individual account on January 18, 1907, while it was a part of the funds attached by the execution attachment of the plaintiff, yet that it was the property of Henry Ulrich. The referee has found these facts on competent testimony, and this court would not reverse such findings of fact unless for clear error.
    The referee finds that there was, during the time of his receivership, dealings between Henry Ulrich as an individual and Henry Ulrich as receiver of the UlrichStewart Manufacturing Company; that Ulrich furnished money to the receivership to pay pressing accounts and paid himself back out of money that he received, belonging to the insolvent estate; and that as a result of that course of dealing between Ulrich and Ulrich, receiver of the Ulrich-Stewart Manufacturing Company, the $508.71 appropriated by him was appropriated by him on January 18, 1907. If that be the fact, then it was subject to attachment as the money of Ulrich, and we are not inclined to disturb the findings of fact of the referee.
    And now, June 27, 1909, the exceptions to the findings of fact and conclusions of law of the referee are dismissed.

      Error assigned was order dismissing exceptions to referee’s report.

      W. K. Jennings, with him I). C. Jennings, for appellant.

      H. W. Mitchell, of McKee, Mitchell & Alter, for appellee.
    May 12, 1910:
   Per, Curiam,

The referee’s finding that the $650, obtained on the first Yelte check, which was deposited in Henry Ulrich’s personal account on November 27, 1906, does not constitute a part of the deposit attached, whether regarded as a finding of fact or as a conclusion of law, was right, for it rests on the fact, clearly pointed out in his comments on the exception to this finding, that the $650 had all been checked out long before attachment issued. This is certainly true as to all but the balance of $8.49 remaining to Ulrich’s credit on January 9, 1907, and even as to that balance, we are not convinced that the referee erred in concluding from a comparison of the deposits with the checks that it was not part of the $650. The contention that a trust as to this sum attached to subsequent deposits is not sustained by the Pennsylvania decisions.

As to the $508.71 obtained on the second Velte check, which was deposited in Ulrich’s personal account on January 18, 1907, the obstacle in the appellant’s way is not the inability to trace this into the deposit attached (see.9th and 11th findings of fact) but the insufficiency of the evidence to repel the warrantable inference that Ulrich appropriated it to himself personally to reimburse himself for money he had advanced for the receivership. On cross-examination of Mr. Ulrich it appeared that he had been advancing his own money for the use of the receiver and had been repaying himself from time to time without making any entries in the receiver’s books of account. Upon this subject the learned referee says:

“It can be conceived that receivership funds might have been deposited in Henry Ulrich’s private account and yet the title to the money have remained in the receiver, the arrangement being a bailment. But it appears that there were running accounts between Henry Ulrich and the receivership and that money was being transferred from one to the other at more or less frequent intervals not as bailor and bailee, but as debtor and creditor. The natural inference is that the Velte money was handled in the same way. As the receiver and Henry Ulrich are one and the same person the only satisfactory and convincing evidence to overcome this inference would be to show how the balance stood in the accounts between Henry Ulrich and the receivership at the dates when the deposits were made. If on these dates there was money due Ulrich from the receivership the presumption would be almost conclusive that the depositing of receiver’s money in Ulrich’s account was in payment of such indebtedness. Under the peculiar circumstances of this case we think proof of ownership is effectually precluded by failure to show the status of the accounts between Henry Ulrich and the receivership at the respective dates of deposit of the two Velte checks and at the date of the attachment.”

The able and ingenious argument of appellant’s counsel has not convinced us that this view of the referee is erroneous; and if it is not, the principle relating to the following of trust funds is not applicable to defeat the attachment. For full discussion of the case we refer to the report of the learned referee and the opinion of the court overruling the exceptions thereto.

The judgment is affirmed.


source: Caselaw Access Project

author: Beaver, J.,

license: Public Domain

text:
    Maust, Appellant, v. Creasy.

      Contracts — Ctistom.—Parol testimony — Charge—Harmless error.

    1. Where a written contract deals with a particular subject the contract is the law governing the parties as to the particular subject, and parol testimony of a trade custom is inadmissible to vary the terms of the contract. The admission of such testimony becomes harmless error if the court in its general charge and in an answer to a point eliminates from the consideration of the jury all such testimony.
    2. Where a lumbering contract provides that the contractors shall cut and remove the lumber at one continuous operation, and there is nothing in the contract which compels the contractors to keep their mill upon the land of the owner until the manufacture of the timber upon the whole tract had been finished, the fact that the contractors moved their mill from the owner’s land to another tract for their convenience, will not affect their rights under the contract, provided there is no break in the continouus operation of lumbering.
    Argued March 7, 1910.
    Appeal, No. 17, March T., 1910, by plaintiff, from judgment of C. P. Columbia Co., Dec. T., 1907, No. 218, on verdict for plaintiff in case of Jacob H. Maust v. Creasy & Wells.
    Before Rice, P. J., Henderson, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Trespass to recover damages for an alleged wrongful cutting of timber. Before Evans, P. J.
    The facts appear by the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $171.59. Plaintiff appealed.

      Errors assigned among others were (1, 2) the exclusion of testimony relating to the custom of the trade, and (3-6) various instructions sufficiently appearing by the opinion of the Superior Court.

      H. M. Hinckley and C. S. Small, for appellant.
    — The admission of testimony showing a custom or rule of trade contravened the express terms of a written, agreement: Keener v. Bank, 2 Pa. 237; Hartje v. Collins, 46 Pa. 268; Stoddard v. Emery, 128 Pa. 436; Atkins v. Howe, 35 Mass. 16; Mulliner v. Bronson, 14 Ill. App. 355.
    Where an owner of standing timber, by articles of agreement, grants, bargains and sells the same to another, and it is stipulated that the grantee shall cut and remove the said timber or on before the day mentioned, all timber remaining uncut on the day mentioned will revert to the grantor, whether there are words of reversion or not in the articles of agreement: Bennett v. Vinton Lumber Co., 28 Pa. Superior Ct. 495; Saltonstall v. Little, 90 Pa. 422; Boults v. Mitchell, 15 Pa. 371.

      John G. Harman, with him Fred IJceler, for appellee.—
    The admission of evidence showing a custom was proper: Roland v. Eckman, 12 Pa. Superior Ct. 75; Woodward v. Traction Co., 17 Pa. Superior Ct. 576; Wills v. Hardcastle, 19 Pa. Superior Ct. 525; Dunham v. McMichael, 214 Pa. 485.
    The construction placed by the court upon that part of the written agreement requiring the defendant to take off all the timber at one time was proper: Dixon-Woods Co. v. Glass Co., 169 Pa. 167; Smith’s Est., 210 Pa. 604; Fisher v. Realty Co., 38 Pa. Superior Ct. 458; Stafford v. Walker, 12 S. & R. 190.
    May 12, 1910.
   Opinion by

Beaver, J.,

This suit is based .upon a written contract. Its execution is not denied. There was neither fraud, accident nor mistake alleged which permitted the introduction of parol evidence in regard to its meaning. Its terms were plain and unambiguous. There were no art phrases or other peculiarities requiring the explanation of experts or others as to the meaning thereof. It was just such a contract as it was both the province and the duty of the court to construe: Shafer v. Senseman, 125 Pa. 310. Numerous authorities upon this subject are collected in 2 Vale, 3897-8. The court, in the end, did construe it, and, as we think, did so correctly.

Before this construction was finally given, however, some things occurred of which the appellant very properly complains. They are contained in the first and second assignments of error and relate to the admission of parol testimony as to the custom of the trade with regard to the use of slabs for fuel purposes. The contract deals with this subject and, as to it, it was the law governing the parties thereto. Any custom, special or general, could not, in the nature of the case, affect the parties who had voluntarily agreed as to what the law should be, as between them, in their written contract. The admission of this testimony was, of course, therefore, improper, and, if there were nothing else in the case, it would be necessary to reverse it and send it back for a new trial, but whatever might have been harmful because of the admission of the evidence complained of was rendered entirely innocuous, as we view it, by what the court said in its'charge to the jury.

As to that subject, as complained of in the third assignment of error, the court said: “There Vas considerable testimony offered as to the quantity of slabs that were made in the manufacturing of the lumber upon this tract. Now we will not go over that testimony. You are as well able to recollect it as we are, and in reaching your verdict upon that branch of the case, you must apply your good common sense to the evidence. As we said before, in our opinion, the plaintiff is entitled to recover in this suit from the defendant, the market value of the slabs that were used in this lumbering operation for fuel and for other purposes. You will also recollect the testimony, in arriving at the quantity, the testimony of the witnesses who testified that they required approximately one quarter of a cord of slabs for the manufacture of a 1,000 feet of lumber.” This, as we understand it, quite fully instructed the jury in regard to the part of the contract relating to the slabs, which was: “The party of the first part reserves all slabs from the saw mill, and agrees to take them away from mill, if they get in the road of sawing, by being piled up in high heaps, so as to interfere with sawing the lumber.”

The appellant, however, complains that the court did not expressly and in terms withdraw the testimony which had been given in regard to the general custom as to the use of slabs for fuel in operations of this kind, and had said to the jury “You must apply your good common sense to the evidence.” Prior to the portion of the charge complained of, however, the court had said: “By reason of the plain provisions of the contract in this case, we say to you that the plaintiff is entitled to recover in this case from the defendant the market value of the slabs used by the defendant in the lumbering off of the Maust tract. You must, therefore, determine what the market value of the slabs used for fuel and other purposes was. In other words, how many loads or cords of slabs were used for fuel and other purposes in the lumbering operation and what were they worth, what was the market value of the slabs at the time they were used upon the tract in Madison Township?”

But, in addition to this, the court also affirmed the point of the plaintiff upon the same subject, which was: “Under the written agreement dated August 21st, 1903, all the slabs from the saw mill were reserved to the plaintiff, Maust; if the jury believe that the defendant consumed any portion of the whole number of slabs produced in the operation, the plaintiff is entitled to recover the market value of the slabs thus consumed, together with what would be equivalent to interest on the same,” which was answered “That proposition is affirmed. We have already in effect so charged you in our general charge.”

The plaintiff, therefore, had the benefit of the general charge, which practically eliminated the testimony in regard to the general custom as to the use of slabs in lumbering, , and also affirmed what the plaintiff at the trial thought was a sufficient instruction to the jury upon that subject. If the plaintiff had desired fuller instructions or had wished the court to put the subject in different form, so as to emphasize it to the jury, it was only necessary .to have added to his point or to have put it in another form. Having attempted to instruct the court as to how that question should be ruled, it does not seem to us to be proper for him now to object that the court did not go far enough when it affirmed all that it was asked to affirm by the plaintiff in his points for chargé.

The other assignments of error relate to another part of the contract, which was construed by the court and was undeniably subject to its interpretation. There are two sentences or paragraphs relating to the same subject, which are: “The party of the second part agrees to leave all tree tops and fire wood on the ground, and to not unnecessarily destroy young saplings not bought, and to clean up or take off all the timber at one time, when saw mill is set on said tract, .reserving, however, the right to go on said tract and remove some or few trees from time to time before mill is set.”

...... “Party of second part agrees to leave the roads from woods to public road in as good a condition when they are through crossing same as they found them before hauling across them, also agrees to set mill on said land for manufacturing said lumber. The party of second part agrees to give up and release all title or right to said timber, after the lumber is manufactured at the one time, referred to previously.”

The plaintiff contends that, in view of the fact, which as we understand it is not denied, that the defendants removed the mill from the tract of -land upon which the timber was cut around a hill upon a tract called the Greenley tract, so as tó bring it into closer relations to a portion of the timber upon the tract upon which they were lumbering than it had occupied originally, they thereby forfeited the timber subsequently manufactured in the mill on the new location. As to that the court said: “Now, as to the third item in which plaintiff claims for timber that was removed from the tract after the mill had been removed to the Greenley tract. The agreement between the parties provides that the party of the second part, Creasy & Wells, agrees to clean up or take off all the timber at one time when saw mill is set on said tract, and also to set mill on said land for manufacturing said lumber, and agrees to give up and release all title or right to said timber after the lumber is manufactured at th'e one time referred to previously.

“ Our understanding and interpretation of the agreement betwéen the parties is that the agreement only requires the defendant to remove the timber from the tract at one continuous operation. The testimony is, as we recollect it, that the lumber was cut and removed at one continuous operation. It was testified that the men went right on cutting the trees in the woods while the mill was being moved around the hill on the Greenley tract. We, therefore, say to you that in our opinion you cannot allow this plaintiff anything for timber cut and removed from the tract in question after the mill was removed from the first setting to the Greenley tract. In other words, the only item or matter submitted to you is the question of the slabs.”

This sanie question was further dealt with by the affirmance of the defendants’ point in regard thereto and the refusal of the plaintiff’s point relating to the same subject.

The interpretation of the court seems to us the fair one under the circumstances. There was nothing in the agreement which compelled the defendants to keep their mill upon the land of the plaintiff until the manufacture of the timber upon the whole tract had been finished. They were to take the timber at one operation and this, as we understand it, was done, the mill having been for convenience removed from the plaintiff’s land to what is called the Greenley tract.

This practically disposes of all the questions involved in the several assignments of error, which are all overruled.

Judgment affirmed.


text:
    Northern Coal & Iron Company v. Burr, Appellant.

      Taxation — Tax assessment — Separation of surface and mineral.

    1. Where a tax assessment shows on its face that the assessment is only of the surface and not of the coal beneath, a sale for the nonpayment of the taxes assessed against the surface, will not convey to the purchaser any interest in the underlying coal.
    2. Two tax assessments for the same year on the same tract of seated lands were as follows: "Owner unknown; Jesse Shove tract; surface only; 404 acres at $5.00 per acre, $2020.00. (Coal rights reserved to Northern Coal & Iron Co.) Total $2020.00.” “Northern Coal & Iron Co.; Jesse Shove tract; coal rights only; number of acres 404 valuation $10.00 per acre; total valuation $4040.00; surface not included, only coal reservation; no coal; total $4040.00.” Held, (1) that the assessments showed a separate assessment of surface from the coal; (2) that a sale for the nonpayment of taxes assessed against the surface conveyed to the purchaser no rights to the underlying coal.
    3. A purchaser at a tax sale cannot attack the recitals contained in a patent through which he derives his title.
    4. When a severance takes place, and the holder of a stratum of coal or other mineral records his title, or enters into possession of his subsurface estate, he is not affected by an adjudication of the title to or possession of the surface.
    Argued March 9, 1910.
    Appeal, No. 41, March T., 1910, by defendants, from judgment of C. P. Lackawanna Co., Sept. T., 1907, No. 169, on verdict for plaintiff in case of the Northern Coal & Iron Company v. D. W. Burr et al.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Trespass for an alleged wrongful taking of coal. Before Newcomb, J.
    The facts appear by the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $2.00. Defendant appealed.

      Errors assigned were various rulings on evidence and instructions.

      A. A. Vosburg, with him B. Fenton Tinkham, M. A. McGiney and W. J. Fitzgerald, for appellants.
    — The patentee like the commonwealth is but a trustee for the true warrantee: Bunting v. Young, 5 W. & S. 188; Hoffman v. Bell, 61 Pa. 444; Whitmire v. Napier, 4 S. & R. 290; Gingrich v. Foltz, 19 Pa. 38.
    The defendants claiming under the original warrantee were manifestly in a position to rebut the prima facies of the recitals in the patent: Hoffman v. Bell, 61 Pa. 444; James v. Betz, 2 Binn. 12; Bixler v. Baker, 4 Binn. 213; Olewine v. Messmore, 128 Pa. 470; Williston v. Colkett, 9 Pa. 38.
    We contend, moreover, that the defendants had a good title by virtue of the tax sales. The assessment against the plaintiff was not for the coal. We claim that the assessment against the plaintiff was for a license only; or incorporeal hereditament: Brandt v. McKeever, 18 Pa. 70; Punk v. Haldeman, 53 Pa. 229; Gloninger v. Coal Co., 55 Pa. 9; Johnstown Iron Co. v. Cambria Iron Co., 32 Pa. 241; Union Petroleum Co. v. Bliven Petroleum Co., 72 Pa. 173; Shepherd v. Oil Co., 38 Hun, 37; Silsby v. Trotter, 29 N. J. Eq. 228; Caldwell v. Fulton, 31 Pa. 475.
    In the case at bar, there was no severance, for the purposes of taxation, because no notice of the ownership of coal was given to the assessing authorities by the Northern Coal & Iron Company, as required by the act of 1806: Williston v. Colkett, 9 Pa. 38; Hutchinson v. Kline, 199 Pa. 564.
    An instructive case is that of Rockwell v. Keefer, 39 Pa. Superior Ct. 468.

      James H. Torrey, of Welles & Torrey, for appellee.—
    A party resisting the competency of a recital in a patent must show the commencement of his title, and to be effective it must be prior to the patent: Read v. Thompson, 5 Pa. 329; Whitmire v. Napier, 4 S. & R. 290; James v. Letzler, 8 W. & S. 192; Penrose v. Griffith, 4 Binn. 231; Smith v. Vasbinder, 77 Pa. 127; Olewine v. Messmore, 128 Pa. 470; Bachop v. Critchlow, 142 Pa. 518; Bushey v. Iron Co., 136 Pa. 541; Diggs v. Downing, 4 S. & R. 348; Gingrich v. Foltz, 19 Pa. 38; Balliot v. Bauman, 5 W. & S. 150.
    There was a separate assessment of the coal as distinct from the surface: Dietrick & Wilson v. Mason, 57 Pa. 40; Delaware, etc., R. R. Co. v. Sanderson, 109 Pa. 583; Milliken v. Benedict, 8 Pa. 169; Manor Real Est. & Trust Co. v. Cooner, 209 Pa. 531; Russel v. Werntz, 24 Pa. 337; Fisk v. Corey, 141 Pa. 334; Philadelphia Library Co. v. Ingham, 1 Whart. 72; Morton v. Harris, 9 Watts, 319; McCall v. Lorimer, 4 Watts, 351.
    May 12, 1910.
   Opinion by

Beaver, J.,

Most of the material questions raised in this case are based upon the interpretation to be given to two several assessments of taxes for the same years on the same tract of seated land in the county of Lackawanna. They are as follows: “Owner unknown; Jesse Shove tract; surface only; 404 acres at $5.00 per acre, $2020.00. (Coal rights reserved to Northern Coal & Iron Co.) Total $2020.00.” “Northern Coal & Iron Co.; Jesse Shove tract; coal rights only; number of acres 404; valuation $10.00 per acre; total valuation $4040.00; surface not included, only coal reservation; no coal; total $4040.00”

The taxes were paid by the Northern Coal & Iron Co., the present plaintiff, under the last assessment. A sale was made under the first assessment by the treasurer to the commissioners of the county, through whom the present defendants claimed that the entire estate was vested in them, because there had been no actual severance of the coal from the surface; that the second assessment was void, being that of an incorporeal hereditament, and that the purchasers at the tax sale under the first assessment, took the land and all the rights which necessarily go therewith. There is no dispute, as we understand the position of the appellants, that the coal, if there be any in this tract of land, was not actually severed by the deed from the executors of Hollenback to whom the patent issued, under which, by sundry mesne conveyances, the plaintiff claims its title. In the first assessment, it is clearly apparent that the surface only was assessed, the reason for the limitation implied by the word “only” being supplied by “coal rights reserved to Northern Coal & Iron Co.” In the second assessment, however, the reference to the coal which is assessed is not merely coal rights only, the entire description being “surface not included, only coal reservation; no coal; total $4040.” Whatever was included in the second assessment was' regarded as of twice the value of what was included in the first assessment. Taking these two assessments together, it seems to us clear, taking the limitation which is implied by the word “ only,” as used in each of them, there was a severance of the coal from the surface; that the surface only, as clearly indicated therein, was assessed by the wording of the first assessment, and that the coal, whatever there was of it, was assessed in the second assessment, which contains the words “coal rights only” and “only coal reservation.” It is true that the words “No coal” appear therein, and this expression appears to have been founded by the County Commissioners upon information furnished by the plaintiff, based apparently upon information gathered by borings upon different portion^ of the property which disclosed no minable or marketable coal. That the Commissioners regarded whatever was assessed as actually valuable, is shown by the fact that it is double the assessed valuation of the surface and that the owners did not intend to abandon the estate which they had is shown by the fact that they actually paid the tax. The defendants base their claim as to the legal effect of the sale under which they claim solely upon the first assessment, but it seems to us that there is enough contained therein to put them upon notice of another assessment, and, when that is shown, accompanied as it is by the evidence that the taxes based upon that assessment were paid, they were bound to assume that the surface only, as described in the first assessment, was the estate which they purchased, and that that estate did not extend beyond the surface.

The appellants attack the validity of the patent to Hollenback upon which the plaintiff claims, on the ground that they acquired the title of Jesse Shove and that they had, therefore, the right to attack the validity of the patent, as having a title through Shove prior to the issuing thereof. This we think is based upon a misconception of what they acquired by the treasurer’s sale, based upon the assessment of ’95. What they purchased or what they secured under that sale was the title of an unknown owner. The• description is: “Jesse.Shove tract,” but that was merely for the purpose of the identification of the land which was sold, and did not, of course, convey the title of Shove, the original warrantee. The appellants were, therefore, not in a position to attack the recitals in the patent, as the holder of the title of the original warrantee could have done, under our decisions. The position of the appellants, therefore, does not qualify them to attempt to nullify the recitals in the patent which seems to us clear from Olewine et al. v. Messmore et al., 128 Pa. 470, in which it is held that “While a patentee is regarded as a trustee for the rightful owner, a patent containing a recital that the rights of the warrantee have become vested in the patentee, is prima facie evidence of title in the latter, and especially against one who relies on possession alone, who shows no title, or whose rights, if any, accrued after the date of the patent.” The rights of the defendants, if any, to the interest in the land claimed by the plaintiff, who showed title from the patentee, accrued subsequently to the date of the patent, and, therefore, they were not in position to attack the prima facie evidence of title which was shown by the plaintiff claiming thereunder. Their offers, therefore, to show that the recitals in the patent were not true in fact were properly rejected by the court below.

If there had been but a single assessment simply describing the property “owner unknown; Jesse Shove tract,” and nothing more, the contention of the plaintiff that it acquired title to the minerals under the surface, by virtue of the tax sale, would have been entirely proper, supported by abundant authority, but the authorities relied upon by it to show this are also clear, as in Moreland v. Frick Coke Co., 170 Pa. 33, which holds that “When a severance takes place, and the holder of a stratum of coal or other mineral records his title, or enters into possession of his sub-surface estate, he is not affected by an adjudication of the title to, or possession of the surface. And so in Hutchinson v. Kline, 199 Pa. 564, upon which the appellants rely; “Where an owner of lands conveys the surface and reserves all minerals, it is his duty to notify the county commissioners of this fact and, if he fails to do so, and thereafter the lands are assessed as to the entire estate as unseated lands, and are sold as such at a tax sale, the owner of the surface may purchase at such sale, and acquire good title to the minerals.” Of this, of course, there is no doubt, but the facts as they there appear do not apply in any respect to those in the case now under consideration. The Jesse Shove tract was not assessed to an unknown owner. The surface only was assessed and sold and the coal reserved which had been pre- ; viously severed, as shown by a deed duly recorded, having been assessed to the rightful owner who paid the taxes assessed thereon, the purchaser at the tax sale could take what was assessed to the unknown owner, namely, the surface only.

The assignments of error are somewhat numerous, but, as the appellants present their argument to us, this covers practically the questions involved, which they regard as worthy of discussion.

A careful consideration of the whole case convinces us that none of the assignments embrace substantial error, and they are, therefore, all overruled.

Judgment affirmed.


author: JOHNSON, Judge:

text:
    615 A.2d 1337
    COMMONWEALTH of Pennsylvania v. Eziquil HERNANDEZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 17, 1992.
    Filed Oct. 26, 1992.

      Michael Coard, Philadelphia, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before ROWLEY, President Judge, and JOHNSON and BROSKY, JJ.
   JOHNSON, Judge:

Eziquil Hernandez appeals from the judgment of sentence following his jury convictions for involuntary deviate sexual intercourse and corruption of a minor. The convictions stem from the sexual assault by Hernandez upon his step-nephew. Hernandez was sentenced on the involuntary deviate sexual intercourse conviction to a term of imprisonment of five to ten years; no sentence was imposed on the corruption of a minor charge. We affirm.

This appeal concerns, inter alia, the admissibility of testimony of a social worker regarding the procedures followed in investigating a child sexual abuse report. We are asked to further define the conditions which govern the admissibility of testimony in child sexual abuse cases.

Hernandez raises several issues for our review: (1) whether there was sufficient evidence to establish that the crimes occurred in Philadelphia County; (2) whether defense counsel was ineffective for eliciting testimony from a Philadelphia Department of Human Services social worker which improperly bolstered the victim’s credibility; (3) whether defense counsel was ineffective by “permitting” an expert medical witness to testify that, assuming the truthfulness of the victim’s history, the physical facts from a medical examination of the victim were consistent with the victim’s allegation of anal sodomy, thus improperly bolstering the victim’s credibility; (4) whether defense counsel was ineffective for failing to request a low grade witness instruction regarding the testimony of the expert medical witness; and (5) whether defense counsel was ineffective for failing to object to two comments made by the Commonwealth during its closing argument.

Hernandez’s claim that there was insufficient evidence to establish that the crimes occurred in Philadelphia County is frivolous. Hernandez states in his Court Bail Program application that he has been a resident of Philadelphia his entire life. The record reveals that he lived at 3901 North 5th Street, Philadelphia. The criminal incidents occurred at his apartment on 5th Street. Clearly, sufficient evidence existed that the crimes occurred in Philadelphia County. With no credible evidence to the contrary, we must conclude that the trial court properly exercised jurisdiction here.

We turn next to Hernandez’s multiple claims of ineffective assistance of defense counsel. The standard of review is well settled:

In reviewing a claim of ineffectiveness of counsel, we must first determine whether the issue underlying the claim has arguable merit. If the claim lacks merit, our inquiry ceases, as counsel will not be deemed ineffective for failing to pursue a baseless or meritless issue. If, however, the claim has merit, we must then determine whether the course of action chosen by counsel had some reasonable basis designed to effectuate his client’s interests. Finally, appellant must show that counsel’s ineffectiveness so prejudiced his case that he was denied a fair trial (citations omitted).

Commonwealth v. Johnson, 527 Pa. 118, 122, 588 A.2d 1303, 1305 (1991). The test for determining whether a defendant has been prejudiced is whether the reviewing court can say with confidence that the jury would have returned its guilty verdict if counsel had provided effective assistance. If we so conclude, then there is no prejudice. The law presumes that counsel is effective, so that the burden of establishing each element of an ineffectiveness claim rests entirely upon the defendant. Commonwealth v. Mescall, 405 Pa.Super. 326, 592 A.2d 687 (1991). With this standard in mind, we review Hernandez’s claims of ineffective assistance of counsel.

Hernandez initially asserts defense counsel was ineffective in calling Patty Ann Stewart as a witness. Stewart, a social worker from the Department of Human Services (DHS), had previously testified for the Commonwealth. Hernandez alleges that the statements elicited by defense counsel during direct examination were so prejudicial, under Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986), and Commonwealth v. Garcia, 403 Pa.Super. 280, 588 A.2d 951 (1991), that defense counsel was ineffective. We disagree.

The record reveals that Stewart had investigated the initial report of child abuse in this matter. Stewart testified that during the course of the DHS investigation she had met with the victim and his mother, and had advised the mother to take the boy to a hospital for an examination. Notes of Testimony (N.T.) 7/8/91, pp. 92-98.

When called by defense counsel on direct, Stewart was asked:

Q. What did your investigation consist of?
A. My investigation consisted of interviewing the child, the mother, other collaterals such as the counselor at school, the doctor. I called the social worker at a prison and tried to talk with her. I believe that is it.
Q. You spoke with doctors?
A. Yes.
Q. In fact, you recommended he go to the hospital?
A. Yes.
Q. How did the Department of Human Services get involved in the case?
A. We received a report through a hot line, by report.
Q. Did you make that investigation then?
A. Excuse me?
Q. What was the result of your investigation?
A. The result of the investigation was that the case was indicated, meaning we found allegations to be true.
Q. You found allegations to be true?
A. Yes.
Q. How did you find that?
A. (No response).
Q. What allegations did you find to be true?
A. That the child — what the child reported.
Q. Pardon?
A. What was reported in the report.
Q. What was that?
A. That the perpetrator put his penis in the child’s rectum.
Q. Where did you get that information?
A. I can’t say.
Q. You have the report right there, don’t you?
A. I can’t say who reported this — who made the report.
Q. You are the person that investigated it, aren’t you?
A. Yes.
Q. Did you make that determination?
A. I discussed the allegations and the findings in the investigation with my administrator and based on that, the decision was made that the case was indicated.
Q. When did you close the case?
A. The case was closed in March — March 21st.
Q. When you say, “The case was indicated,” what does that mean?
A. That the allegations of the report were found to be true.
Q. Who told you the report was true, other than the statement of the child?
A. The report was indicated, based on the statement of the child.
Q. That is all the information you had, wasn’t it?
A. Basically, yes.
Q. That is your report right there, do you want to look and see if you can find anything else?
A. We got a collateral from the medical doctor and basically, what the child says, is how the report was indicated. There is nothing else. The mother gave a story about what the child said, but based on what the child said, that is how the case was indicated. That is all I can say.

N.T. 7/9/91, pp. 32-34. Defense counsel went on to introduce the DHS report into evidence as exhibit D-l. N.T. 7/9/91, p. 35.

Relying upon Seese, supra, and Garcia, supra, for support, Hernandez claims that these statements unduly bolstered the credibility of the victim. We are mindful that the admissibility of expert testimony in child abuse cases must be evaluated cautiously in order to prevent encroachment upon the jury’s function by the unfair enhancement of a child victim’s credibility. Commonwealth v. Vidmosko, 393 Pa.Super. 236, 574 A.2d 96 (1990). After careful analysis, we conclude that these statements did not unduly bolster the victim’s credibility, and that Seese and Garcia are readily distinguishable from this case.

In Seese, supra, our supreme court declared that it is error to admit expert testimony that young children do not usually fabricate stories of sexual abuse, in that it is a direct attempt to establish the victim’s credibility. See also Commonwealth v. Evans, 412 Pa.Super. 332, 336, 603 A.2d 608, 610 (1992). Similarly, in Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988), a clinical child psychologist who was an expert in the treatment of child sexual abuse testified that “children who have not been involved in sexual experiences typically do not fantasize about sexual experiences.” Id. at 80, 541 A.2d at 316. Our supreme court said in Davis that when the expert offers his assessment of the truthfulness of the class of people, of which the particular witness is a member, the testimony is inadmissible. Id. at 82-83, 541 A.2d at 317.

Their progeny, Garcia, supra, and Commonwealth v. Dunkle, 385 Pa.Super. 317, 561 A.2d 5 (1989), aff'd in part, rev’d in part, 529 Pa. 168, 602 A.2d 830 (1992), hold that expert testimony regarding the behavior patterns of victims of child sexual abuse, or the dynamics of interfamily sexual abuse and the behavior patterns of the child-victim, is inadmissible when offered to explain the conduct of a witness/victim. Garcia, 403 Pa.Super. at 290, 588 A.2d at 956; Dunkle, 529 Pa. at 180-184, 602 A.2d at 836-838. This Court has stated that the key criteria in determining whether such expert testimony is admissible is the purpose for which the testimony is offered; if it is offered solely to sustain the credibility of the victim, it should not be admitted. Garcia, 403 Pa.Super. at 288, 588 A.2d at 954; see also Commonwealth v. Loner, 415 Pa.Super. 580, 609 A.2d 1376 (1992) (petition for allowance of appeal filed September 1, 1992, No. 351 M.D. Alloc. Docket 1992) (in evaluating claim of expert improperly bolstering credibility of witness, initial determination is purpose for which testimony was offered).

Here, the purpose of Stewart’s testimony was not to sustain the credibility of the victim, but to explain under a hostile direct examination by defense counsel how the DHS child abuse report was prepared. Stewart was a DHS Social Worker II in the intake unit, whose job was to perform the initial assessment when a child abuse/neglect report was received. Stewart’s job duties included going to the child’s home to “do an investigation and to find out what happened with the allegations and the report.” N.T. 7/8/91, pp. 92-93. Stewart was not qualified as an expert at trial. Neither did she testify as to receiving any special training. Compare Loner, supra (reversible error for Children & Youth Services caseworker, who had undergone specialized training in area of interviewing and working with child-victims of abuse, to testify on direct for the Commonwealth in order to improperly bolster credibility of victim).

Stewart stated that, based upon the interview with the victim and his mother, a decision was made that the case was indicated. The term “indicated” is defined in the Child Protective Services Law (CPSL), 11 P.S. § 2201 et seq., repealed by Act of December 19, 1990, P.L. 1240, No. 206, § 6, now recodified without material change as 23 Pa.C.S. § 6301 et seq. We cite to 11 P.S. § 2203, as it governs the case.

“Indicated report” means a report made pursuant to this act if an investigation by the child protective service determines that substantial evidence of the alleged abuse exists based on (i) available medical evidence, (ii) the child protective service investigation or (iii) an admission of the acts of abuse by the child’s parent or person responsible for the child’s welfare.

See also Commonwealth v. Kennedy, 413 Pa.Super. 95, 604 A.2d 1036 (1992); Lehigh County Office of Children and Youth Services v. Commonwealth, Department of Public Welfare, 121 Pa.Cmwlth. 74, 550 A.2d 269 (1988).

Stewart essentially testified that, pursuant to the CPSL, an indicated report was made based upon her (DHS) investigation. The report was indicated based upon the allegations of the victim and other collateral information, such as the report of the examining physician. Stewart testified as a social worker; she was not qualified as, nor had she presented herself as, any type of expert in child sexual abuse. The mere identification of her occupation, without more, could not cause the jury to reasonably (and improperly) expect her to be an expert. Commonwealth v. Cody, 401 Pa.Super. 85, 584 A.2d 992 (1991); Cf. Loner, supra (Children & Youth Services caseworker testified that she had undergone specialized training in area of interviewing and working with child-victims of abuse).

Stewart testified regarding the CPSL mandated procedures followed in investigating allegations of child sexual abuse. The content of Stewart’s testimony was nothing more than the chronology of events which ultimately led to the charges being initiated against Hernandez. Her testimony did not improperly intrude upon the jury’s function to evaluate the credibility of the victim, neither was it highly prejudicial personal opinion. Vidmosko, 393 Pa.Super. at 242-243, 574 A.2d at 98-100 (not error for witnesses to testify as to procedures they followed in determining that child sexual abuse case should be prosecuted). Furthermore, we discern no merit in Hernandez’s allegation that Stewart’s statement impermissibly prejudiced him, but the same information in the report Stewart prepared, which was introduced into evidence, did not.

Moreover, the trial judge gave a cautionary instruction to the jury immediately following the statements in question. This instruction correctly informed the jury that Stewart, in performing her job, made certain evaluations and reached certain conclusions separate and apart from the jury’s function. The instruction specifically warned that only the jury was the factfinder in the case, and it “must not and may not accept any standard adopted by DHS.” N.T. 7/9/91, p. 42. This instruction is sufficient to cure any possible prejudice that may have resulted from Stewart’s comments. Vidmosko, supra.

We distinguish this case from Loner, supra. Loner involved a Children & Youth Services caseworker who testified that she had undergone specialized training in the area of interviewing and working with child-victims of abuse. Loner, 415 Pa.Super. at 583, 609 A.2d at 1377. Stewart was not qualified as an expert, nor did she offer any testimony from which the jury could reasonably conclude that she had specialized skills in dealing with child sexual abuse. In Loner, the Commonwealth offered the testimony to bolster the credibility of the victim. Here, Stewart’s explanation of the CPSL procedures she had followed in conducting the DHS investigation were elicited by defense counsel under hostile questioning. The scope of Stewart’s testimony did not go beyond that which was necessary to explain her method of investigation. Thus, the “expertise”, purpose, and scope of Stewart’s statements are distinguishable from Loner.

For all of the foregoing reasons, we conclude that Hernandez has not suffered ineffective assistance of counsel here. Johnson, supra.

Even assuming Hernandez’s argument possesses arguable merit, we conclude that defense counsel was pursuing a reasonable strategy in attempting to attack the credibility of Stewart, and thus the victim’s credibility. Our inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not, in hindsight, whether other alternatives were more reasonable. Commonwealth v. Gass, 514 Pa. 287, 523 A.2d 741 (1987). We conclude that defense counsel’s actions were reasonably designed to effectuate the defense that the victim was not truthful, and that the DHS (and criminal) investigation had proceeded erroneously upon this assumption. Cf. Commonwealth v. Ly, 528 Pa. 523, 536, 599 A.2d 613, 619 (1991) (counsel proceeding with reasonable defense was not ineffective in eliciting damaging testimony in cross-examination of Commonwealth witness).

Assuming arguendo that defense counsel’s actions had no reasonable basis in effectuating Hernandez’s interests, Hernandez fails to establish that undue prejudice, denying him a fair trial, accrued unto him as a result. As our review of the record has established, the trial court’s cautionary instruction was sufficient in that it immediately alleviated any unduly prejudicial effect that Stewart’s statements may have had upon the jury. Moreover, the purpose of the statement was not to bolster the victim’s testimony, but to explain, under adverse questioning, how the DHS investigation progressed. Hernandez makes no claim of prejudice as to the introduction of the DHS report into evidence, from which the jury could reasonably conclude that Stewart accurately reported the statements the victim made to her during the course of the investigation.

The evidence presented at trial is as follows: the victim testified as to the events surrounding the sexual assault, which were essentially corroborated by his mother and the medical examination some five days after the assault. N.T. 7/8/91, pp. 20-92. Stewart corroborated the mother’s testimony that a lady working for the city had visited her about three days after the assault, had spoken with her and her son, and had recommended that she take him to the hospital. N.T. 7/8/91, pp. 80-81, 94-97. Other than calling Stewart and questioning her as to the circumstances surrounding the DHS investigation, Hernandez’s only witness was Ms. Vini Greco, who testified that she had known Hernandez for 12 years and that his reputation in the community was very good. N.T. 7/9/91, pp. 43-14.

This Court has consistently stated that the uncorroborated testimony of a victim is sufficient to sustain a conviction for rape. See Cody, 401 Pa.Super. at 89, 584 A.2d at 993 (citing Commonwealth v. Smith, 280 Pa.Super. 222, 421 A.2d 693 (1980)). The testimony of the victim in this case, corroborated in part by his mother, is sufficient to sustain Hernandez’s conviction. Stewart’s testimony provided no more support to the victim’s credibility than the fact that Hernandez was in court on the charges of involuntary deviate sexual intercourse and corruption of a minor. The content of Stewart’s testimony was nothing more than her recounting of the chronology of events which ultimately led to the charges initiated against Hernandez. We cannot conclude that Stewart’s statements were so prejudicial as to deny Hernandez a fair trial. Cody, supra; Mescall, supra. For all of these reasons, Hernandez’s first claim of ineffectiveness fails.

Hernandez’s second claim of ineffective assistance also fails. Hernandez alleges that defense counsel was ineffective in “permitting” a pediatrician, Dr. Allan DeJong, a specialist in child abuse and neglect, to testify, wherein DeJong’s testimony was prohibited by Garcia, supra.

At trial, DeJong compared the medical records resulting from the examination of the victim at Saint Christopher’s Hospital for Children with a hypothetical question which contained the victim’s history of the assault and subsequent events up to the time of the examination. DeJong testified that he found the physical facts, as stated in the medical record, consistent with the child’s allegation of anal sodomy. N.T. 7/9/91, pp. 11-16. DeJong went on to describe several other possible methods not involving sexual contact which would also be consistent with the medical findings. N.T. 7/9/91, pp. 20-23.

There is no merit to the claim that DeJong’s testimony was prohibited pursuant to Garcia, and that defense counsel was ineffective in “permitting” DeJong to so testify. The general rule governing admissibility of expert testimony is that “[e]x-pert testimony is permitted only as an aid to the jury when the subject matter is distinctly related to a science, skill, or occupation beyond the knowledge or experience of the average layman. Where the issue involves a matter of common knowledge, expert testimony is inadmissible.” Commonwealth v. O’Searo, 466 Pa. 224, 229, 352 A.2d 30, 32 (1976) (citations omitted).

We are unaware of any precedent that establishes that an expert, on cross-examination, may not explain the assumptions on which he bases his opinion. It is not erroneous for a treating physician to testify that the physical facts he observed were consistent with the allegation of rape. Commonwealth v. Seigrist, 253 Pa.Super. 411, 385 A.2d 405 (1978). Furthermore, a medical expert may base his opinion upon facts which are in the record and reports of others which are not in medicine but customarily relied upon in practicing medicine, including the observations of lay persons. Commonwealth v. Hathaway, 347 Pa.Super. 134, 500 A.2d 443 (1985). It follows that a pediatrician such as DeJong, qualified as a medical expert, may testify that the physical facts observed and reported by the treating physician were consistent with the allegation of anal sodomy set forth in the history of the child. The medical history of a patient is customarily relied upon in practicing medicine. Consequently, it is not error for the expert to testify on cross-examination that his opinion assumes the truthfulness of the history supplied by the victim. We conclude that the testimony of DeJong is admissible, and there is no merit to the underlying issue in this ineffective assistance of counsel claim.

We also observe that DeJong’s testimony is readily distinguishable from that prohibited by Garcia. Garcia prohibits expert testimony regarding the behavior patterns of the victims of child assault when it is solely offered to explain the conduct of the victim. Garcia, 403 Pa.Super. at 288, 588 A.2d at 954. Here, we have a medical expert testifying that the physical findings of the medical exam were consistent with the victim’s allegations of anal intercourse, and on cross-examination stating that he assumed the truthfulness of the victim’s history in reaching that conclusion. We are unable to conclude that his testimony improperly bolstered the victim’s credibility and withdrew the issue of witness credibility from the jury. Id. Therefore, we reject Hernandez’s second claim of ineffectiveness.

Turning to Hernandez’s third allegation of ineffective assistance of counsel, we determine that it is without arguable merit. Hernandez claims that defense counsel’s failure to request a low grade expert witness instruction regarding the testimony of DeJong renders defense counsel constitutionally ineffective. We conclude that there is no basis for giving a low grade witness instruction here. Thus, Hernandez’s underlying argument is without merit.

Hernandez relies upon Pennsylvania Suggested Standard Criminal Jury Instruction 4.10A, and Commonwealth v. Thomas, 448 Pa. 42, 292 A.2d 352 (1972), for the proposition that opinion evidence should be classified as low grade when the expert testifies, not from personal observation, but when the expert expresses an opinion in response to a hypothetical question, or where the expert’s opinion, based on theoretical assumptions, is rebutted by direct evidence. Our analysis of the history of the low grade witness instruction leads us to conclude that in actual practice, application of the low grade witness instruction is more constrained.

The Pennsylvania Suggested Standard Criminal Jury Instructions, in the Subcommittee Note to 4.10A, states that the low grade witness instruction is based upon Thomas, supra; Commonwealth v. Heller, 369 Pa. 457, 87 A.2d 287 (1952); Commonwealth v. Patskin, 375 Pa. 368, 100 A.2d 472 (1953); Commonwealth v. Woodhouse, 401 Pa. 242, 164 A.2d 98 (1960); and Commonwealth v. Ahearn, 421 Pa. 311, 218 A.2d 561 (1966). With the exception of Thomas, each of these cases concerns opinion testimony by a psychiatrist, usually where insanity had been raised as a defense in a criminal trial.

This and similar testimony as to insanity in many other homicide cases justify the rule or axiom that in such cases expert testimony is entitled to little weight against positive facts. Expert medical opinions are especially entitled to little or no weight when based upon insignificant or (partly) erroneous facts or a feigned state of mind or an inaccurate past history, or upon unreasonable deductions, or an erroneous conception of legal insanity.

Patskin, 375 Pa. at 375-376, 100 A.2d at 475. A fair characterization of the low grade witness instruction would be that it was designed specifically for dealing with the competency of lay witnesses and psychiatrists testifying on questions of sanity.

A low grade witness instruction is not applicable here. This case is an involuntary deviate sexual intercourse case. No one had been asked to testify as to Hernandez’s sanity in a homicide. DeJong’s statement was not rebutted by other expert testimony, or by the physical evidence. There is no basis for giving a low grade witness instruction. Cf. Hathaway, supra. Counsel cannot be deemed ineffective for failing to pursue a meritless issue. Johnson, 527 Pa. at 122, 588 A.2d at 1305. Therefore, this claim is rejected.

Hernandez alleges in his final claim that defense counsel was ineffective for failing to object, during the Commonwealth’s closing argument, to an indirect reference to Hernandez’s silence and a statement that DeJong and Stewart corroborated the victim’s testimony. This claim is without merit.

Hernandez directs us to the following portion of the prosecutor’s closing argument as evidence of an “indirect reference to appellant’s silence” at trial:

With the character evidence, basically, what — and I apologize because I don’t remember her name — what this young lady testified to here, was what she knew of Mr. Hernandez in the neighborhood, in the community and that is that which he wished to show people in the community. We don’t know, except what [the victim] has to tell you, of what happens in the privacy of that man’s bedroom. The only two people on earth who know that is [the victim] and the Defendant.
She is a nice lady and she basically said that Mr. Hernandez, from what she knew of him, from that part that he wishes to present to the community; that is all she knows about him. [The victim] told you another part about him, another fact about him and I submit that you consider that and that [the victim] did not have any reason to lie. He did not have anything against the Defendant and neither did his mother.

N.T. 7/9/91, pp. 69-70.

The prosecutor’s closing argument does not reflect upon Hernandez’s decision not to testify. A prosecutor must have reasonable latitude in presenting a case to the jury and must be free to present his or her arguments with logical force and vigor. Commonwealth v. Rolan, 520 Pa. 1, 549 A.2d 553 (1988). Here, the prosecutor has distinguished the public reputation testimony, offered by Greco on behalf of Hernandez, from the testimony concerning the alleged sexual assault offered by the victim. The prosecutor fairly argues from the facts that what one does in the privacy of one’s bedroom is generally not a matter of public knowledge, and that Greco did not know whether Hernandez had sexually assaulted the victim. This is within the permitted scope of argument. Rolan, supra. Because there is no “indirect reference” in the prosecutor’s closing argument to Hernandez’s silence at trial, we are constrained to conclude that this contention is merit-less.

Moreover, were we to accept this claim, the prosecutor’s remark must imply the defendant had a duty to testify in order to constitute error. Commonwealth v. Everett, 297 Pa.Super. 320, 443 A.2d 1142 (1982). In context, the prosecutor’s statement does not imply that Hernandez had a duty to testify. There is no objectionable error here. Thus, on either basis, Hernandez’s claim is without merit, and defense counsel cannot be deemed ineffective for not raising a meritless objection. Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981). Also see Everett, supra.

The prosecutor’s statement that the testimony of DeJong and Stewart corroborated the victim’s testimony is not objectionable. It is clearly within the scope of fair argument. An attorney cannot be deemed ineffective for refusing to act on a baseless claim. Pettus, supra.

Accordingly, for the foregoing reasons, we affirm the judgment of sentence.

Judgment of sentence affirmed.


author: KELLY, Judge:

text:
    615 A.2d 1345
    Janice A. FOFLYGEN, Appellant, v. R. ZEMEL, M.D. (PC); Allegheny General Hospital, Allegheny Anesthesiology Associates, Inc., Sergio Betancourt, M.D., Kira Kislan, M.D., Douglas F. Clough, M.D., Martin McGrogan, M.D., Frederick Weniger, M.D., Lisa Lockerman, R.N., Appellees.
    Superior Court of Pennsylvania.
    Argued Oct. 1, 1991.
    Filed Sept. 23, 1992.

      Dale M. Brown, Washington, for appellant.
    Mark Neff, Washington, for Allegheny Anesthesiology, appellee.
    David J. Singley, Pittsburgh, for Clough, appellee.
    Louis C. Long, Pittsburgh, for Allegheny General Hospital, appellee.
    John A. Bass, Pittsburgh, for Betancourt, appellee.
    Before TAMILIA, KELLY and MONTGOMERY, JJ.
   KELLY, Judge:

This is an appeal from a series of orders entered by the trial court granting the appellees’ various preliminary objections in the nature of demurrers to the appellant’s complaint. We quash in part and affirm in part.

The relevant facts and procedural history are as follows. The appellant, Janice A. Foflygen, read an article in the Pittsburgh Press concerning an operation known as a near total gastric diversion (“stomach stapling procedure”) to assist overweight people in the quest to lose weight. The appellant, who suffered from obesity, called upon one of the appellees, Dr. Sergio Betancourt, the surgeon mentioned in the article. The appellant met Dr. Betancourt at his office, which he shared with another named party in this lawsuit, Dr. Reuben R. Zemel, to discuss the possibility of undergoing the “stomach stapling” procedure to alleviate her obesity. Dr. Betancourt questioned the appellant about her previous medical history and what other weight control methods she had attempted in the past. After the appellant decided to proceed with the “stomach stapling” procedure, Dr. Betancourt referred her to Dr. Douglas F. Clough (appellee), who conducted a pre-surgery physical examination of the appellant. During the performance of this physical examination, the appellant alleges that Dr. Clough did not discuss any aspect of the operation or mention that there were alternative methods for treating the appellant’s obesity.

Three weeks later, the appellant was admitted to Allegheny General Hospital to undergo the “stomach stapling” procedure. Upon her admission, the appellant was examined by Dr. Kira Kislan (appellee). The appellant alleges that Dr. Kislan then had her sign a standard hospital consent form entitled “Consent Upon Admission for Routine Diagnosis and Treatment” without discussing either the operation or alternative modes of treatment.

Additionally, the appellant further alleges that Dr. Kislan instructed Nurse Lisa Lockerman, R.N. (appellee), to obtain the appellant’s signature on another standard hospital consent form entitled, “Consent to Operation, Anesthetics, and Special Procedures.” The appellant also asserts that Nurse Locker-man did not advise her of the risks concerning the operation nor did she suggest to the appellant any possible alternative ways of treating her obesity problem.

The appellant was then examined by Dr. Martin McGrogan (appellee), of the Allegheny Anesthesiology Associates. The purpose of this examination was to determine the proper anesthetic to utilize for the appellant’s operation. The appellant alleges that neither Dr. McGrogan, nor Dr. Weniger (appellee), who was the actual anesthesiologist during the operation, discussed with the appellant the possibility of the alternative methods of treatment for her obesity problem.

The following day, March 22, 1988, the appellant underwent the “stomach stapling” procedure. The operation was performed by Dr. Betancourt with Dr. Kislan and Dr. Cmolik assisting. Shortly thereafter, the appellant asserts that she suffered complications from the operation. These complications include a pulmonary embolism, acute respiratory distress, phlebitis of the arm, acute bronchitis, stroke and a right carotid artery occlusion. The appellant claims all of the above medical problems stem directly from the operation.

On March 21, 1990, the appellant praeciped for a writ of summons which was served upon the following appellees, Dr. Sergio Betancourt, Dr. Kira Kislan, Dr. Douglas Clough, Dr. Martin McGrogan, Dr. Frederick Weniger, Nurse Lisa Lockerman, Allegheny General Hospital, and Allegheny Anesthesiology Associates. The appellant’s six count complaint was subsequently filed on June 11, 1990.

In Count I of her complaint, the appellant set out a cause of action against all of the appellees based upon a battery theory of lack of informed consent. Preliminary objections in the nature of demurrers to Count I were filed by the following appellees: Allegheny General Hospital, Nurse Lockerman, Doctors Clough and Weniger and the Allegheny Anesthesiology Associates. All of the above-mentioned appellees argued that only the surgeons who actually performed the operation may be found liable under the battery theory of informed consent. Therefore, because they did not operate on the appellant, she failed to state an informed consent cause of action against them. The trial court sustained these demurrers and dismissed Count I as to the above-mentioned appellees.

Count II of the appellant’s complaint set out a cause against all of the appellees based upon a negligence theory of failure to obtain the appellant’s informed consent. All of the appellees filed preliminary objections in the nature of demurrers to Count II, arguing that Pennsylvania does not permit recovery under a negligence theory of lack of informed consent. Thus, the appellant failed to state a cause of action for which recovery could be had. The trial court sustained the demurrers of all of the appellees and dismissed Count II.

In Count III of her complaint, the appellant expounded a cause of action against Doctors Betancourt, Zemel, Clough, and the Allegheny General Hospital based upon their purported negligence in conducting unnecessary surgery upon the appellant in view of her high-risk status and because of the availability of other, less dangerous, non-surgical means of treating her obesity problem. Dr. Clough filed a preliminary objection in the nature of a demurrer to Count III. In his demurrer, Dr. Clough contended that because he was not involved in the performance of the operation, he could not be held liable even if the appellant’s surgery was found to be unnecessary. Dr. Clough’s demurrer to Count III was sustained, thus dismissing him from the lawsuit.

Count IV alleged a misrepresentation cause of action against Dr. Betancourt. No preliminary objections were filed by Dr. Betancourt to Count IV.

Count V set forth a cause of action against Doctors Betancourt, Zemel, Kislan, Nurse Lockerman, and the Allegheny General Hospital under the Pennsylvania Unfair Trade Practices and Consumer Protection Law (Pa.UTPCPL) (73 Pa.S.A. § 201-1 et seq.). Preliminary objections in the nature of demurrers were filed by all of the above-mentioned appellees to Count V, arguing that the Pa.UTPCPL is inapplicable to medical services. The trial court sustained the appellees’ demurrers and dismissed Count V.

Finally in Count VI, the appellant propounded in paragraph 54 a negligence cause of action against Doctors Betancourt, Zemel, Weniger, Allegheny Anesthesiology Associates, and Allegheny General Hospital alleging that all of the above negligently administered fluids to the appellant during the operation, causing her to suffer congestive heart failure and all of the other previously mentioned alleged complications. In paragraph 55, the appellant alleged that the above-mentioned appellees were otherwise negligent during the operation. The trial court sustained the appellees’ preliminary objections to paragraph 55. However, the trial court then directed the appellant to file a more specific pleading in paragraph 55. This timely appeal followed.

On appeal, the appellant raises seven issues for our review:
I. WHETHER THE LOWER COURT ERRED IN DISMISSING COUNT I OF THE COMPLAINT AS IT RELATED TO DEFENDANT ALLEGHENY GENERAL HOSPITAL SINCE IT WAS VICARIOUSLY LIABLE FOR THE ACTIONS OF ITS AGENTS, DR. BETANCOURT, DR. McGROGAN, DR. KISLAN, DR. CMOLIK AND NURSE LOCKERMAN?
II. WHETHER THE LOWER COURT ERRED IN DISMISSING COUNT I OF THE COMPLAINT AS IT RELATED TO DEFENDANTS WENIGER AND ALLEGHENY ANESTHESIOLOGY ASSOCIATES SINCE THEY FAILED TO OBTAIN THE INFORMED CONSENT OF THE PLAINTIFF PRIOR TO THE ADMINISTRATION OF ANESTHESIA?
III. WHETHER THE LOWER COURT ERRED IN DISMISSING COUNT I OF THE COMPLAINT AS IT RELATED TO DEFENDANTS CLOUGH, LOCKER-MAN, ALLEGHENY GENERAL HOSPITAL, WENIGER AND ALLEGHENY ANESTHESIOLOGY ASSOCIATE S, SINCE THEY WERE INVOLVED AS JOINT TORTFEASORS IN THE LACK OF INFORMED CONSENT ON THE BASIS OF THEIR CONCERT OF ACTION IN THE TREATMENT OF THE PLAINTIFF?
IV. WHETHER THE LOWER COURT ERRED IN DISMISSING COUNT II OF THE COMPLAINT AS TO ALL DEFENDANTS SINCE THE NEGLIGENT FAILURE TO OBTAIN THE INFORMED CONSENT OF THE PLAINTIFF PRIOR TO SURGERY AND ADMINISTRATION OF ANESTHESIA CAN OR SHOULD SET OUT A CAUSE OF ACTION OF MEDICAL MALPRACTICE?
V. WHETHER THE LOWER COURT ERRED IN DISMISSING COUNT V OF THE COMPLAINT AS TO ALL DEFENDANTS SINCE THE UNFAIR TRADE PRACTICES ACT DOES OR SHOULD APPLY TO MEDICAL SERVICES?
VI. WHETHER THE LOWER COURT ERRED IN DISMISSING COUNT III OF THE COMPLAINT AS IT RELATED TO DEFENDANT CLOUGH SINCE HE FAILED TO PERFORM HIS DUTY TO INSURE UNNECESSARY SURGERY WAS NOT CONDUCTED UPON THE PLAINTIFF AND WAS A JOINT TORTFEASOR WITH DR. BETANCOURT ON THE BASIS OF HIS CONCERT OF ACTION IN THE TREATMENT OF THE PLAINTIFF?
VII. WHETHER THE LOWER COURT ERRED IN REQUIRING A MORE SPECIFIC PLEADING REGARDING PARAGRAPH 55 OF THE COMPLAINT (COUNT VI) SINCE THE PARAGRAPH WHEN READ IN CONJUNCTION WITH PARAGRAPH 56 ADEQUATELY SET OUT A CAUSE OF ACTION BASED UPON RES IPSA LOQUITUR?

(The Appellant’s Brief at 3).

JURISDICTION

Before this Court may address the merits of the seven issues raised by the appellant, we are required to determine whether these issues are properly before us. Generally, an appeal will only be permitted from a final order unless otherwise permitted by statute or rule of court. Pugar v. Greco, 483 Pa. 68, 72-73, 394 A.2d 542, 547 (1978). An order is generally not a “final order” which may be appealed unless it serves to put the litigant out of court either by litigation or disposing of the case entirely. Bender’s Floor Covering v. Gardner, 387 Pa.Super. 531, 564 A.2d 518 (1989). Although an order dismissing less than all counts of a multicount complaint is generally not appealable, such an order will be considered final and appealable if the dismissed count or counts are not merely alternate theories of recovery but instead state separate and distinct causes of action. Jenkins v. Hospital of Medical College, 401 Pa.Super. 604, 585 A.2d 1091 (1991); Motheral v. Burkhart, 400 Pa.Super. 408, 583 A.2d 1180 (1990). A separate cause of action can be distinguished from an alternative theory of recovery by looking at the relief requested; alternative theories of recovery are different means for obtaining the same relief for the same harm caused by the same party, whereas separate causes of action request different relief for different harm. Trackers Raceway v. Comstock Agency, 400 Pa.Super. 432, 438, 583 A.2d 1193, 1196 (1990). A plaintiff may not recover on all alternative theories as this would constitute a duplicative recovery. Garofolo v. Shah, 400 Pa.Super. 456, 460, 583 A.2d 1205, 1207 (1990). However, a plaintiff may potentially recover complete relief on each of the separate causes of action. Trackers Raceway v. Comstock Agency, supra, 400 Pa.Super. at 439, 583 A.2d at 1196. Finally, an order will be considered final if it puts the plaintiff out of court on all theories of recovery asserted against a given defendant. Sweener v. First Baptist Church, 516 Pa. 534, 539, 533 A.2d 998, 1000 (1987); Dorohovich v. West American Ins. Co., 403 Pa.Super. 412, 417, 589 A.2d 252, 255 (1991).

The appellant, in her first issue on appeal, contends that the trial court erred in dismissing Count I of her complaint in which she maintains that Allegheny General Hospital is vicariously liable to her for the battery committed upon her by the failure of Dr. Betancourt, Dr. McGrogan, Dr. Kislan, Dr. Cmolik, and Nurse Lockerman to obtain her informed consent to the “stomach stapling” procedure. In Count I, the appellant seeks recovery for all of the injuries she allegedly suffered as a result of the operation. However, the appellant has set out alternative theories of recovery for the same damages in Counts III and VI of her complaint which are pled under a negligence theory against all of the above-mentioned appellees except Nurse Lockerman. Thus, the issue of whether the trial court properly dismissed Count I as to Dr. Betancourt, Dr. McGrogan and Dr. Kislan is not ripe for appellate review at this time and must be quashed. See Jenkins v. Hosp. of Medical College, supra; Garofolo v. Shah, supra.

The appellant’s second issue on appeal, which contends that the trial court erred in dismissing Count I against Dr. Weniger and the Allegheny Anesthesiology Associates, must also be quashed under the same analysis. Although the trial court directed the appellant to file a more specific pleading to paragraphs 54, 55B-1, and 55E-1 of C of Count VI, the appellant has not been placed out of court on her negligence theory by the trial court’s direction if she successfully amends the above-mentioned paragraphs of Count VI. Accordingly, the appellant’s second issue on appeal is not ripe for appellate review and must be quashed. See Conaway v. 20th Century Corp., 491 Pa. 189, 196-197, 420 A.2d 405, 409 (1980) (order of the trial court which dismissed complaint but invited reconsideration with the possibility of granting leave to amend complaint was not a final order).

In her third issue on appeal, the appellant contends that the trial court erred in dismissing Count I against Dr. Clough, Dr. Weniger, Nurse Lockerman, Allegheny General Hospital and the Allegheny Anesthesiology Associates. The appellant argues that joint tortfeasor liability has attached to all of the above-listed appellees due to their failure to obtain her informed consent to the “stomach stapling” procedure. This issue must also be quashed as to all of the above-mentioned appellees except Dr. Clough and Nurse Lockerman because the appellant still has negligence claims pending against these particular appellees either through Count III or Count VI. Thus, the appellant’s third issue on appeal is from an order dismissing an alternative theory of recovery and must await the entry of a final judgment to the appellant’s negligence claims before being ripe for appellate review. See Jenkins v. Hosp. of Medical College, supra; Garofolo v. Shah, supra; Trackers Raceway v. Comstock Agency, supra.

However, the trial court’s orders dismissing Count I as to Dr. Clough and Nurse Lockerman are not interlocutory. The trial court’s dismissal of Count I together with its dismissal of Count II and Count III against Dr. Clough and its dismissal of Count I, Count II and Count V against Nurse Lockerman has placed the appellant out of court against these particular appellees on all alternative theories of recovery. Thus, the trial court’s orders dismissing the above-listed counts against Dr. Clough and Nurse Lockerman are final orders and are ripe for appellate review at this time. See Sweener v. First Baptist Church, supra; Dorohovich v. West American Ins. Co., supra.

The appellant’s fourth issue on appeal concerns whether the trial court properly dismissed Count II in which the appellant asserts an informed consent cause of action pled under a negligence theory against all of the appellees. As Count II merely asserts an alternative theory of recovery for the same harm, we are only permitted to address this issue as it pertains to Dr. Clough and Nurse Lockerman. The appellant’s appeal from the order dismissing Count II must be quashed as to all other appellees. See Sweener v. First Baptist Church, supra; Dorohovich v. West American Ins. Co., supra.

The appellant’s fifth issue on appeal contends that the trial court erred in dismissing her Pennsylvania Unfair Trade Practices and Consumer Protection Law (Pa.UTPCPL) claim against Dr. Betancourt, Dr. Zemel, Dr. Kislan, Nurse Locker-man, and Allegheny General Hospital. The appellant’s Pa. UTPCPL claim against the above-mentioned appellees is a statutory cause of action which, if proved, would entitle the appellant to distinctly different relief than she would be permitted to recover under her informed consent and negligence causes of action. Accordingly, the appellant’s appeal from the trial court’s order dismissing her Pa.UTPCPL claims against all of the appellees is from a final order and is properly before this Court on appeal. See Trackers Raceway v. Comstock Agency, supra; Gatten v. Merzi, 397 Pa.Super. 148, 579 A.2d 974 (1990); Valley Forge Towers v. Ron-Ike F. Ins., 393 Pa.Super. 339, 574 A.2d 641 (1990), affirmed per curiam, 529 Pa. 512, 605 A.2d 798 (1992); Hardy v. Pennock Ins. Co., 365 Pa.Super. 206, 529 A.2d 471 (1987).

The appellant’s sixth issue on appeal, where she contends that the trial court erred in dismissing Count III against Dr. Clough, is also properly before this Court because, as has been previously stated, the appellant has been placed out of court against Dr. Clough. See Sweener v. First Baptist Church, supra; Dorohovich v. West American Ins. Co., supra.

Finally, we must determine whether the appellant’s seventh issue is properly before this Court on appeal. In her seventh issue, the appellant contends that the trial court erred in directing her to file a more specific pleading as to paragraph 55 of Count VI. Because the trial court’s order merely directed the appellant to file a more specific pleading to paragraph 55, the appellant has not been placed out of court on her negligence cause of action. Thus, the appellant’s appeal from the trial court’s order directing the appellant to file a more specific pleading in paragraph 55 is interlocutory and must be quashed. See Conaway v. 20th Century Corp., supra.

Standard of Review

Before addressing the merits of the issues raised by the appellant which are properly before this Court on appeal, we must first set forth the applicable standard of review. Our standard of review of an order granting preliminary objections in the nature of a demurrer is well-settled and has been summarized as follows:

All material facts set forth in the pleadings as well as all inferences reasonably deducible therefrom are admitted as true for the limited purpose of this review. The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it. In reviewing the grant of a demurrer we are not bound by the inferences drawn by the trial court, nor are we bound by its conclusions of law. Furthermore, we will affirm the grant of such a motion only when the moving party’s right to succeed is certain and the case is so free from doubt that further proceedings would clearly be fruitless. Ford Motor Credit Co. v. Caiazzo, 387 Pa.Super. 561, 566, 564 A.2d 931, 933 (1989) (collecting cases). Finally, “the novelty of a claim or theory alone, does not compel affirmance.” Neff v. Lasso, supra, [382 Pa.Super. 487] 555 A.2d [1304] at 1305 [ (1989) ].

Valley Forge Towers v. Ron-Ike F. Ins., supra, 574 A.2d at 644.

In her first appealable issue, the appellant contends that the trial court erred in dismissing her informed consent under a battery theory cause of action against Dr. Clough and Nurse Lockerman, as joint tortfeasors. The appellant argues that joint tortfeasor liability attached to both Dr. Clough and Nurse Lockerman because they acted in concert with the other appellees, and were integrally involved in the failure to obtain her informed consent to the “stomach stapling” operation. Therefore, the appellant asserts that she is entitled to recover from both Dr. Clough and Nurse Lockerman as joint tortfeasors for their failure to obtain her informed consent to the operation.

Joint tortfeasors are parties who either act together in committing a wrong or whose acts, if independent of each other, unite a single injury. Lasprogata v. Qualls, 263 Pa.Super. 174, 397 A.2d 803 (1979). A joint tort occurs where two or more persons owe the same duty to the plaintiff and by their common negligence, the plaintiff is injured. LaZar v. RUR Industries, Inc., 337 Pa.Super. 445, 487 A.2d 29 (1985); Capone v. Donovan, 332 Pa.Super. 185, 480 A.2d 1249 (1984).

The appellate courts of this Commonwealth have historically interpreted the doctrine of informed consent as applying only to the surgeons who perform operations without first securing the informed consent of the patient. Friter v. IOLAB Corp., 414 Pa.Super. 622, 626, 607 A.2d 1111, 1113 (1992). In determining whether the patient’s consent to a surgical operation was “informed,” one must consider whether the physician disclosed to the patient all of the facts, risks, and alternatives, which a reasonable person would deem significant in making a decision to undergo the recommended procedure. Moure v. Raeuchle, 529 Pa. 394, 404, 604 A.2d 1003, 1008 (1992); Doe v. Dyer-Goode, 389 Pa.Super. 151, 156, 566 A.2d 889, 891 (1989), appeal denied, 527 Pa. 587, 588 A.2d 509 (1990); Rogers v. Lu, 335 Pa.Super. 595, 485 A.2d 54 (1984). An operation performed without the patient’s informed consent constitutes a battery upon the patient, thus making the physician or physicians liable for any injuries regardless of whether the surgery was negligently performed. Moure v. Raeuchle, supra, 604 A.2d at 1008; Doe v. Dyer-Goode, supra, 566 A.2d at 891. Levenson v. Souser, 384 Pa.Super. 132, 557 A.2d 1081 (1989), appeal denied, 524 Pa. 621, 571 A.2d 383 (1989); Sagala v. Tavares, 367 Pa.Super. 573, 533 A.2d 165 (1987), appeal denied, 518 Pa. 626, 541 A.2d 1138 (1988). See also Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663 (1966); Smith v. Yohe, 412 Pa. 94, 194 A.2d 167 (1963).

Under normal circumstances, only the physician who performs the operation on the patient has the duty of obtaining the patient’s informed consent. Therefore, Dr. Clough, who only performed the appellant’s pre-surgery physical examination, and Nurse Lockerman, who is not a physician, were under no duty to obtain the appellant’s informed consent to the operation. Accordingly, the trial court properly held that neither Dr. Clough nor Nurse Lockerman could be held to be joint tortfeasors with the physicians who performed the operation in the appellant’s informed consent cause of action. Thus, the trial court properly sustained Dr. Clough’s and Nurse Lockerman’s preliminary objections in the nature of a demurrer to Count I.

The appellant, in her second appealable issue, contends that the trial court erred in dismissing Count II of her complaint which asserted an informed consent cause of action based upon a negligence theory against Dr. Clough and Nurse Lockerman. The appellant argues that Pennsylvania is out of step with other jurisdictions by failing to recognize an informed consent cause of action based upon negligence. Therefore, the appellant asserts that it would be appropriate at this time for this Court to recognize an informed consent cause of action based upon negligence. We disagree.

As an intermediate appellate court, this Court is obligated to follow the precedent set down by our Supreme Court. In Gray v. Grunnagle, supra, and Smith v. Yohe, supra, our Supreme Court held that the patient’s consent is a prerequisite to a surgical operation and an operation without the patient’s consent is a battery. Recently, the Supreme Court has re-affirmed this long-standing precedent in Moure v. Raeuchle, supra. Moreover, there have been numerous decisions of this Court, both panel and en banc, which have applied the rule set forth in Gray v. Grunnagle, supra and Smith v. Yohe, supra, to informed consent cases. Levenson v. Souser, supra; Doe v. Dyer-Goode, supra; Sagala v. Tavares, supra; Sauro v. Shea, 257 Pa.Super. 87, 390 A.2d 259 (1978); Cooper v. Roberts, 220 Pa.Super. 260, 286 A.2d 647 (1971). Thus, we are compelled to analyze informed consent cases under a battery theory until and unless our Supreme Court decides to recognize an informed consent cause of action grounded in negligence. Levenson v. Souser, supra. Accordingly, the trial court properly sustained Dr. Clough’s and Nurse Lockerman’s preliminary objections in the nature of a demurrer to Count II.

The appellant’s third appealable issue is whether the trial court erred in dismissing Count III of her complaint against Dr. Clough. The appellant contends that the trial court erred in dismissing her negligence claim against Dr. Clough as a joint tortfeasor who acted in concert with Dr. Betancourt in the performance of unnecessary surgery upon her. The appellant argues that Dr. Clough breached his duty towards her during the pre-surgery physical examination when he failed to advise her that there were alternative, nonsurgical treatments for her obesity problem.

As previously discussed above, Dr. Clough had no duty to obtain the appellant’s informed consent; therefore, he had no duty to discuss with her the necessity of, or alternative to, the surgery. Accordingly, Dr. Clough could not be held liable for the appellant’s injuries even if her surgery proved to be unnecessary. Thus, the trial court properly sustained Dr. Clough’s demurrer to Count III.

The appellant’s fourth appealable issue is that the trial court erred in dismissing Count V of her complaint. In Count V, the appellant sought recovery against Dr. Betancourt, Dr. Zemel, Dr. Kislan, Nurse Lockerman, and Allegheny General Hospital under the Pa.UTPCPL for alleged misrepresentations concerning the “stomach stapling” procedure. The appellant contends that the trial court erred in holding that Pa.UTPCPL was inapplicable to the procedures of medical services. The appellant argues that as the underlying purpose of the Pa.UTPCPL is the protection of the public from unfair or deceptive practices in the conduct of any trade or commerce, any person who has been victimized by misrepresentations may assert a cause of action under the Pa.UTPCPL. The appellant asserts that as she has been victimized by the appellees’ misrepresentation concerning the “stomach stapling” procedure, she has properly set forth a cause of action against them under the Pa.UTPCPL. We disagree.

The law regarding the appellant’s contention that the Pa. UTPCPL is applicable to the procedures of medical services has been aptly set forth by this Court in Gatten v. Merzi, supra, 397 Pa.Super. at 151-152, 579 A.2d at 976.

According to the Act, unfair methods of competition and deceptive practices in the conduct of any trade or commerce are unlawful. 73 P.S. § 201-3. The phrase “trade or commerce” includes the sale of services. 73 P.S. § 201-2(3). Among the practices condemned by the Act are various-misrepresentations as well as other fraudulent conduct that creates a likelihood of confusion or misunderstanding. 73 P.S. § 201-2(4). However, even though the Act does not exclude services performed by physicians, it is clear that the Act is intended to prohibit unlawful practices relating to trade or commerce and of the type associated with business enterprises. It equally is clear that the legislature did not intend the Act to apply to physicians regarding medical services.
A reading of appellant’s complaint demonstrates that appellant is premising her cause of action under the Act on statements made to her about her course of treatment and the probable results of that treatment. To impose the liability provided for by the Act to such statements would have the effect of making a physician the absolute guarantor of both his treatment and the anticipated results even in the absence of a specific contract warranting those results. Thus, each time a physician, without fault, performs an unsuccessful operation, he could face liability under the Act for preoperative statements abut its anticipated outcome. Such an interpretation, which is inconsistent with our precedent regarding liability of physicians in performance of their medical services, would be absurd.
Under our law, the liability of a physician is premised upon either fault, lack of informed consent, or a specific contract warranting certain results. There is no indication that the Act was intended to create a cause of action for every statement made by a physician regarding a patient’s condition, the likelihood for success of a given procedure, or the recommended course of treatment. Such an interpretation of the Act would make physicians the guarantors of their fault-free work. This is absurd. It is clear that the legislature, in passing the Act, did not intend to disturb existing common and statutory law regarding when liability for the rendition of medical services attaches to a physician.

Accordingly, because the Pa.UTPCPL is inapplicable to the providers of medical services, the trial court properly sustained the above-mentioned appellees’ preliminary objections in the nature of a demurrer to Count V of the appellant’s complaint.

Based upon the foregoing, the trial court’s order sustaining Dr. Clough’s preliminary objections in the nature of a demurrer to Count I, Count II and Count III is affirmed. The trial court’s orders sustaining Nurse Lockerman’s preliminary objections in the nature of a demurrer to Count I, Count II and Count V are also affirmed. The trial court’s orders sustaining the preliminary objections in the nature of a demurrer of appellees’ Allegheny General Hospital, Dr. Betancourt and Dr. Kislan to Count V are affirmed. The appellant’s first issue on appeal to all named appellees except Nurse Lockerman and her second issue on appeal are quashed because they are improper appeals from interlocutory orders. The appellant’s third and fourth issues on appeal are also quashed as to all appellees except Dr. Clough and Nurse Lockerman. Finally, the appellant’s seventh issue on appeal requiring her to file a more specific pleading to Count VI is also quashed as an appeal taken from an interlocutory order.

Orders affirmed in part, and appeal quashed in part.

      . Although Dr. Cmolik is mentioned in paragraph 18 of Count I of the appellant's complaint, he was not served by the appellant with notice of this lawsuit and is not a party.

      . Dr. Reuben Zemel was also served with the writ of summons and is a party defendant in this lawsuit. However, Dr. Zemel filed no preliminary objections to the appellant’s complaint and is not an appellee in this appeal.