author: BECK, Judge.

text:
    594 A.2d 743
    COMMONWEALTH of Pennsylvania, Appellant, v. Timothy Dwayne BUTT.
    Superior Court of Pennsylvania.
    Argued May 24, 1991.
    Filed Aug. 8, 1991.
    Charles Coleman, Asst. Dist. Atty., Reading, for Com., appellant.
    Lawrence J. Hracho, Reading, for appellee.

      Before WIEAND, BECK and HUDOCK, JJ.
   BECK, Judge.

In the instant case the trial court dismissed drunk driving charges against Timothy Butt on the grounds that the DUI prosecution would violate the constitutional guarantee against double jeopardy. The dismissal was based on the recent Supreme Court case of Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990) and this court’s en banc opinion in Commonwealth v. Labelle, 397 Pa.Super. 179, 579 A.2d 1315 (1990). In our view, the double jeopardy principles announced in Grady do not provide the relief the trial court granted here. Therefore, we reverse.

On April 3, 1990, a police officer in Berks County observed Butt’s vehicle exceeding the speed limit in a 35 mile per hour zone. The officer followed the car and eventually Butt pulled the vehicle off the road and stopped on a grassy area. The officer noticed an odor of alcohol about the driver and when Butt was asked to perform various field sobriety tests, he failed to complete them. Butt was arrested and consented to a blood alcohol test which revealed a .23 blood alcohol level.

The officer issued a citation charging Butt with the summary offense of exceeding the maximum speed limit, 75 Pa.C.S. § 3362 (Purdon 1977). A complaint charging him with drunk driving, 75 Pa.C.S. § 3731(a)(1) and (a)(4) (Purdon 1990), was filed thereafter. Defendant was tried on the summary charge and, primarily based upon questions involving the reliability of the VASCAR radar speed clocking system, the district justice dismissed the speeding citation. At the same proceeding, the DUI charge was found to have a prima facie basis and was bound over for trial.

At a pre-trial hearing on the DUI charge, Butt petitioned the court to dismiss the DUI prosecution. Basing his claim on double jeopardy, he asserted that the prior dismissal of the speeding charge prevented the Commonwealth from proceeding with the DUI prosecution. The trial court agreed. The Commonwealth appeals and we now reverse.

As the Supreme Court in Grady v. Corbin recently-reiterated, “[t]he double jeopardy clause embodies three protections: ‘It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.’ ” Grady v. Corbin, 495 U.S. at-, 110 S.Ct. at 2090, 109 L.Ed.2d at 561. We are concerned here with the first protection. In Grady, the Court was concerned with a case which involved a subsequent prosecution after conviction, whereas here the first prosecution ended in a dismissal. However, our inquiry remains the same, i.e., “whether the successive prosecutions impermissibly involve the same offense.” Brown v. Ohio, 432 U.S. 161, 166-167 n. 6, 97 S.Ct. 2221, 2226 n. 6, 53 L.Ed.2d 187 (1977).

In order to resolve that issue, Grady has articulated a two-part test which establishes the framework for determining what constitutes the same offense for double jeopardy purposes. The first prong of the inquiry is whether the offenses charged constitute identical offenses or if one is a lesser included offense of the other. This aspect of the analysis is known as the Blockburger test and is accomplished by a comparison of the statutory elements of the offenses at issue. If each offense requires proof of an additional element which the other does not, the offenses charged will pass muster under Blockburger.

However, in order to overcome a double jeopardy challenge, the inquiry does not conclude there. The Grady court added the following requirement: “[whether] the government, to establish an essential element of an offense charged in [a subsequent] prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted.” Grady v. Corbin, 495 U.S. at -, 110 S.Ct. at 2093, 109 L.Ed.2d at 564. Therefore, even if Blockburger alone does not bar the second prosecution, it is also necessary to decide whether, in order to prove essential elements in its subsequent case, the Commonwealth necessarily must prove conduct for which the defendant already has been prosecuted.

It is clear that the DUI prosecution here is not barred by application of the Blockburger test. The summary offense of speeding requires proof that the defendant was driving in excess of the maximum speed limit, which DUI does not. Likewise, DUI requires proof that the defendant was under the influence of alcohol to the extent specified in the statute, which speeding does not require. Therefore, each contain at least one element which the other does not, and thus survive the Blockburger test.

Pursuant to the mandates of Grady, we must also determine whether the Commonwealth must rely upon the conduct which constituted the speeding charge in order to convict Butt of DUI. If the Commonwealth would find it necessary to prove that Butt was exceeding the speed limit or to rely on conduct which necessarily involved his speeding, in order to establish its DUI case, then double jeopardy would bar the DUI prosecution. Butt has already been tried and acquitted of speeding and the Commonwealth cannot prove that conduct again to sustain its DUI case. We conclude that the subsequent prosecution for DUI would not offend double jeopardy.

The complaint charging Butt with drunk driving alleges that Butt violated two subsections of the DUI statute, 75 Pa.C.S. § 3731(a)(1) and (a)(4). Pursuant to section 3731(a)(1), the Commonwealth would have to prove that Butt was intoxicated to the degree which rendered him incapable of driving safely. To prove that Butt could not safely operate his vehicle it is arguable that the Commonwealth would have to prove the conduct which comprised the prior speeding accusation. However, in the instant case, the Commonwealth could prove DUI based entirely on a violation of section 3731(a)(4), in that Butt’s blood alcohol level was 0.23%, substantially higher than the 0.10% required by statute. The blood alcohol level alone, along with proof that Butt was in control of the movement of the vehicle, would suffice to support the DUI prosecution under that section of the statute.

The result we reach here is predicated on the Supreme Court’s analysis in Grady. In Grady, the Supreme Court refused to adopt a “same transaction” test for defining “same offense” for double jeopardy purposes. A “same transaction” approach would in fact bar the DUI prosecution here even if the Commonwealth could prove the charge without re-establishing the speeding conduct, because both charges arise out of the same criminal transaction. Instead, the Supreme Court adopted the same conduct test of Grady and emphasized that double jeopardy would not be offended if the State relied on proving the subsequent charges by establishing conduct which, although part of the same criminal transaction, was not the conduct which constituted the offense for which defendant had already been in jeopardy. The implementation of the Grady same conduct test may require the prosecution to demonstrate the proof upon which it intends to rely in order to overcome the double jeopardy bar. See Grady v. Corbin, 495 U.S. at -, n. 14, 110 S.Ct. at 2094, n. 14, 109 L.Ed.2d at 565 n. 14. Where the prosecution can make such a showing, the double jeopardy bar is avoided. Contrast Commonwealth v. Kline, 405 Pa.Super. 412, 592 A.2d 730 (1991) (since defendant was prosecuted only under section 3731(a)(1), Commonwealth stipulated that DUI conviction was dependent on proof of driving conduct for which defendant was already convicted; therefore, DUI charge barred by double jeopardy).

In light of this discussion, we hold that the trial court erred in dismissing the DUI prosecution against Butt. Prosecution for DUI which is not based on conduct that constituted the speeding charge, would not violate the double jeopardy protection.

Order reversed and case remanded for proceedings consistent with this opinion. Jurisdiction relinquished.

      . Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

      . These sections provide as follows:
      (a) Offense defined.—A person shall not drive, operate or be in actual physical control of the movement of any vehicle while:
      (1) under the influence of alcohol to a degree which renders the person incapable of safe driving; ... or
      (4) the amount of alcohol by weight in the blood of the person is 0.10% or greater.

      . Although not raised by the parties, we note too that the DUI prosecution would not be barred by principles of collateral estoppel. In Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), the Supreme Court held that the double jeopardy guarantee embodies the rule of collateral estoppel which prevents the relitigation of an ultimate fact that has been determined by a valid and final judgment. It is clear however, that Butt’s acquittal of the speeding charge determined no issue which was essential to the second prosecution for DUI. Therefore, collateral estoppel is inapplicable here.


source: Caselaw Access Project

author: KELLY, Judge:

license: Public Domain

text:
    594 A.2d 746
    ESTATE OF Albert Herman OSHIVER, an Absentee, Appeal of Sylvia OSHIVER.
    Superior Court of Pennsylvania.
    Argued June 5, 1991.
    Filed Aug. 8, 1991.

      Sylvia Oshiver, pro se.
    David Freeman, Philadelphia, for appellee.
    Before McEWEN, KELLY and BROSKY, JJ.
   KELLY, Judge:

In this opinion, we are called upon to determine whether the trial court may terminate a four year temporary trusteeship over the estate of an alleged absentee in light of the fact that there had never been any attempt by the appellant to pursue the appointment of a permanent trustee. We find that the trial court properly found that the temporary trusteeship had been in place for an excessive length of time and correctly terminated the temporary trusteeship pursuant to 20 Pa.C.S.A. § 5702(c) in favor of an appointment of a permanent trustee.

The relevant facts can be summarized as follows. On May 19, 1982, the appellant, Sylvia Oshiver, obtained a judgment for $46,984.64 in child support arrearages against her husband, Albert Herman Oshiver, a former federal employee who had allegedly disappeared in 1968. The appellant then attempted to garnish and execute against Mr. Oshiver’s federal pension. The United States refused to allow the execution to proceed. The appellant sought a writ of mandamus directing the United States to pay the entire judgment. The federal district court held that the appellant was not entitled to recover Mr. Oshiver’s pension contributions to satisfy the judgment for child support arreagages where no application for retirement benefits had been filed with the Office of Personnel Management (OPM) by any person. See Oshiver v. United States, 618 F.Supp. 172 (E.D.Pa.1985). The appellant then filed an application for her husband’s retirement benefits with OPM on September 19, 1985.

While the appellant’s application for Mr. Oshiver’s retirement benefits was pending, the appellant was informed by OPM on June 12, 1986, that unless a trustee was appointed by June 30, 1986, the appellant’s application for Mr. Oshiver’s retirement benefits would be dismissed. The appellant then filed a petition for the appointment of a temporary trustee pursuant to 20 Pa.C.S.A. § 5702(c) in the Common Pleas Court of Philadelphia County, Orphan’s Court Division. On June 26, 1986, the Honorable Theodore Gutowicz appointed Sherry J. Oshiver, Esquire, temporary trustee for the estate of her father, Albert Oshiver, pending the appointment of a permanent trustee pursuant to 20 Pa.C.S.A. § 5702(a).

Shortly thereafter, 0PM denied the appellant’s application for Mr. Oshiver’s retirement benefits. The appellant and the temporary trustee appealed OPM’s decision to the Merit Systems Protection Board. The Merit Systems Protection Board held that neither the appellant nor the temporary trustee had standing to file an application for Mr. Oshiver’s retirement benefits. The appellant and the temporary trustee filed an appeal to the United States Court of Appeals. In 1989, while the appeal was pending before the United States Court of Appeals, but after oral argument, the temporary trustee filed a separate application for Mr. Oshiver’s retirement benefits. The United States Court of Appeals held that a missing employee’s wife did not have authority to apply for retirement benefits on the missing employee’s behalf. However, the Court made no determination on whether the temporary trustee could apply for Mr. Oshiver’s retirement benefits because the temporary trustee’s application for Mr. Oshiver’s retirement benefit was not part of the record. See Oshiver on Behalf of Oshiver v. Office of Pers. Man., 896 F.2d 540 (D.C.Cir 1990).

In May 1990, the temporary trustee received a letter from Judge Gutowicz’s law clerk. Enclosed with the letter was a copy of a letter from Joshua Eilberg, Esquire, to Judge Gutowicz. The letter informed Judge Gutowicz that Mr. Eilberg had spoken with Albert Oshiver and that he was not a missing person. The temporary trustee wrote Judge Gutowicz asking for clarification of the letter.

In response to the letter from the temporary trustee, Judge Gutowicz called for a hearing on June 22, 1990. Present at the hearing was David Freeman, Esquire, who entered an appearance for appellee, Albert Oshiver; Sherry Oshiver, the temporary trustee; and Sylvia Oshiver, representing herself pro se. Joshua Eilberg was also present at the hearing. Mr. Eilberg was not sworn in as a witness, but the judge did ask him about the letter and he confirmed its content. The judge then excused Mr. Eilberg without any further questioning. Sylvia Oshiver did not object to Mr. Eilberg’s dismissal by the trial court.

At the close of the hearing, the judge terminated the temporary trusteeship. The court’s justifications for the termination were twofold: 1) the temporary trusteeship had gone on for four years and the appointment of a permanent trustee was recommended, and; 2) the judge believed that a conflict of interest existed because Sherry Oshiver was the temporary trustee, representing herself as trustee and the attorney representing Sylvia Oshiver and also she was beneficiary of the judgment for which the pension was sought. This timely appeal followed.

The appellant raises the following issues for our review: 1) whether appellant’s due process rights were violated at the hearing; 2) whether the termination of the temporary trusteeship was contrary to Pennsylvania law; and 3) whether the termination was improper because the evidence did not support the trial court’s ruling.

The appellant contends that her due process rights were violated because she was not given the opportunity to cross-examine Mr. Eilberg at the hearing. However, appellant raised no objection when the trial court excused Mr. Eilberg. Accordingly, we find that this issue has been waived because it was not raised at the hearing. See Commonwealth v. Hawkins, 295 Pa.Super. 429, 439, n. 6, 441 A.2d 1308, 1312, n. 6 (1982) (“Issues, even those of constitutional dimension, cannot be raised for the first time on appeal____”) See also Pa.R.A.P. 302(a).

Moreover, the trial court relied on other justifications for the termination, i.e. the excessive length of the temporary trusteeship and the need for a permanent trustee to be appointed. Therefore, Mr. Eilberg’s statement to the court that Mr. Oshiver was alive was not determinative of the trial court’s decision to terminate the temporary trusteeship.

The appellant’s next contention is that the termination of the temporary trusteeship is contrary to Pennsylvania law. Appellant argues that a temporary trustee cannot be terminated in the absence of a breach of fiduciary duty. Thus, appellant asserts the trial court erred in terminating the temporary trustee. We disagree.

The removal of a trustee is a matter resting largely within the discretion of the court having jurisdiction over the trust, but an abuse of that discretion renders its exercise subject to review. In re Croessant’s Estate, 482 Pa. 188, 393 A.2d 443 (1978). However, there is a distinction between cases involving the removal of a court appointed trustee and those involving the removal of a testamentary trustee. In re Rentschler’s Estate, 392 Pa. 46, 139 A.2d 910 (1958). A testator has the privilege and the power, as a property right, to place the management of his estate in a selected person as a condition of his bounty, and the status of such a fiduciary is not the same as that of a trustee, guardian or administrator appointed by the court. In re Corr’s Estate, 358 Pa. 591, 58 A.2d 347 (1948). A testamentary trustee should only be removed when the estate is actually endangered and intervention is necessary to save trust property. In re Fraiman’s Estate, 408 Pa. 442, 184 A.2d 494 (1962). The removal of a court appointed temporary trustee for an absentee’s estate in favor of the appointment of a permanent trustee, on the other hand, is within the discretion of the trial court, because the trust itself is of a temporary and provisional nature subject to the direction of the Orphans’ Court. 20 Pa.C.S.A. § 5702(c); see generally Esterly’s Appeal, 109 Pa. 222 (1885). Accordingly, absent an abuse of discretion, the decision of the Orphans’ Court regarding the removal of a temporary trustee will not be disturbed on appeal.

Instantly, when the trial court granted the appellant’s petition for the appointment of a temporary trustee on June 26, 1986, the appointment was made because the appellant claimed that an emergency existed. The emergency was that the appellant’s application for federal pension of Albert Herman Oshiver was pending and appellant was told by OPM that if a trustee was not appointed her application would be dismissed. In response to the appellant’s petition, the trial court created the temporary trusteeship as a stop-gap measure until a permanent trusteeship could be established. In the nearly four years that had passed between the establishment of the temporary trusteeship and the June 22,1990 hearing, no steps had been taken by the appellant toward the establishment of a permanent trusteeship over the estate. Accordingly, the trial court properly found the length of time of the temporary trusteeship to be excessive and terminated the temporary trusteeship in favor of the establishment of a permanent trustee.

Moreover, the fact that the temporary trustee had submitted a separate application in 1989 for Mr. Oshiver’s retirement benefits, which was still pending at the time of the trial court’s termination of the temporary trusteeship, is immaterial. The trial court’s purpose for granting the appellant’s petition for the appointment of a temporary trustee on June 26, 1986 was to prevent the irrevocable dismissal of the appellant’s application for her husband’s retirement benefits by OPM on June 30, 1986. However, after her appointment, the temporary trustee did not attempt to intervene by filing an amended application to join the appellant’s application to recover Mr. Oshiver’s retirement benefits. Rather, the temporary trustee allowed the appellant’s application to proceed and then attempted to interject herself into the action after OPM rendered a decision against the appellant’s application by joining the appellant’s appeals through the federal administrative agencies and the United States Court of Appeals.

After oral argument before the United States Court of Appeals, but before the court handed down its decision, the temporary trustee, fearing an unfavorable decision, submitted a completely separate application for Mr. Oshiver’s retirement benefits. However, because the temporary trustee was appointed only for the purpose of allowing the appellant’s application for Mr. Oshiver’s retirement benefits to proceed, her mission ended when the United States Court of Appeals filed its decision against the appellant. See Commonwealth v. Mateer, 16 Sergeant & Rawle 416, 419 (Pa.1827) (an administration pendente lite is a limited trust which can not exist longer than the pending suit); see also Remick’s Pennsylvania Orphans’ Court Practice, Volume 2 § 12:10. By filing a separate application for Mr. Oshiver’s retirement benefits while awaiting the court’s decision, the temporary trustee impermissibly attempted to extend the life of the temporary trusteeship and usurp the role intended by 20 Pa.C.S.A. § 5702 for the permanent trustee. This we cannot permit. Accordingly, the trial court properly terminated the temporary trusteeship in favor of the possible appointment of a permanent trustee whose responsibility will be to file any further applications for the alleged absentee’s retirement benefits.

The appellant’s third contention is that the evidence does not support the trial court’s ruling to terminate the temporary trusteeship. We disagree.

The findings of a judge of the Orphans’ Court Division, sitting without a jury, must be accorded the same weight and effect as the verdict of a jury, and will not be disturbed absent a finding of manifest error. Estate of Gilbert, 342 Pa.Super. 82, 492 A.2d 401 (1985). An appellate court can modify a decree only if the findings on which it rests are not supported by competent or adequate evidence or if there has been an error of law, an abuse of discretion, or a capricious disbelief of competent evidence. Estate of Keefauver, 359 Pa.Super. 336, 518 A.2d 1263 (1986).

The evidence produced at the hearing shows that the temporary trusteeship was in place for nearly four years and no attempt to petition for a permanent trustee was made. The evidence presented at the hearing supports the trial court’s conclusion that the temporary trusteeship continued for an excessive length of time. Accordingly, we find no abuse of discretion in the trial court’s termination of the temporary trusteeship.

For the foregoing reasons, we find the appellant’s contentions without merit and, therefore, affirm the trial court order terminating the appointment of Sherry Oshiver as temporary trustee over the estate of Albert Herman Oshiver.

Order affirmed.


author: BROSKY, Judge.

text:
    594 A.2d 750
    Paula SINCLAIR, a Minor, by her Parents and Natural Guardians, Joan A. SINCLAIR and Mark Sinclair, Individually and in Their own Right, Appellants, v. Robert Alan BLOCK, M.D., and Philadelphia OB-GYN Group, Ltd., Health Services Plan of Pennsylvania.
    Superior Court of Pennsylvania.
    Argued April 2, 1991.
    Decided July 3, 1991.
    Petition for Allowance of Appeal Granted Dec. 11, 1991.

      Lawrence D. Finney, Philadelphia, for appellants.
    Joseph H. Foster, Philadelphia, for Robert A. Block, appellee.
    Nancy L. Siegel, Philadelphia, for Phi. OB-GYN Group, appellee.
    Before WIEAND, OLSZEWSKI and BROSKY, JJ.
   BROSKY, Judge.

These appeals are from an order of the trial court which denied appellants' post-trial motions and directed the prothonotary to enter judgment in favor of Dr. Block, and from the entry of judgment in favor of Philadelphia OB-GYN Group, Ltd. (POGGL). Appellants present the following issues for review: (1) whether the trial court erred in refusing to grant appellants’ motion to amend their post-trial motions to include additional grounds for relief which related to the trial court’s jury charge; (2) whether the trial court erred in concluding that appellants waived their right to assert additional grounds in their post-trial motions; (3) whether the trial court erred in charging the jury as to appellee’s reporting requirements under federal law; (4) whether the trial court erred in charging the jury as to the “two schools of thought” doctrine; (5) whether the trial court erred in concluding that a forceps delivery is not a surgical or operative procedure to which the “informed consent” doctrine applies, and if so, whether the trial court erred in refusing to remove the nonsuit entered in favor of Dr. Block on this issue; (6) whether the trial court erred in refusing to charge the jury on the issue of informed consent; (7) whether the trial court erred in precluding appellants from answering certain questions relating to Dr. Block’s lack of explanation as to the risks associated with a forceps delivery; and (8) whether the trial court erred in refusing to remove the nonsuit entered in favor of POGGL. For the reasons set forth below, we affirm the judgment and order entered in favor of appellees.

Before addressing the merits of this appeal, it is necessary to briefly recount the relevant facts of this case. Mrs. Joan Sinclair was pregnant with her first child. On October 21, 1982, her labor commenced, and she eventually arrived at the hospital where her obstetrician, Dr. Block, ruptured her amniotic sac and proceeded to monitor the progress of the labor. Although Mrs. Sinclair’s cervix ultimately reached full dilation, Dr. Block noted that after several hours the baby stopped moving through the birth canal. In addition, there was some indication that the baby’s heart rate had slowed. At this point, Dr. Block observed that the baby was turned to the side and was not proceeding through the birth canal in the usual position. Because of the baby’s position, failure to progress and slow heart rate, Dr. Block attempted to deliver the child by using forceps. The attempted forceps delivery was unsuccessful and Paula was subsequently delivered via caesarean section. After her birth, Paula was observed to have areas of swelling on her scalp, as well as a faint mark on her face and forehead, which was thought to be a mark from the forceps. Subsequent examination and testing revealed that Paula had sustained seizures and a fractured skull.

As a result of these injuries, appellants, Paula and her parents, timely commenced suit against appellees, Dr. Block and his employer, POGGL. A jury trial was conducted in March, 1990. During trial, a nonsuit was granted as to POGGL and as to Dr. Block on the issue of informed consent. The jury returned a verdict in favor of Dr. Block on the issue of negligence. Appellants filed post-trial motions. It was not until almost five months later, on the day of oral argument, that appellants requested leave to specify additional grounds in support of their request for post-trial relief. Appellees objected to the untimely amendment. The trial court declined to grant appellants’ motion to amend and subsequently denied the post-trial motions. As a result, judgment was entered in favor of Dr. Block. Appellants timely filed an appeal from this judgment, docketed at No. 2540. With regard to POGGL, appellants’ requested the prothonotary to enter judgment in accordance with the nonsuit that was entered at trial. An appeal from this judgment was docketed at No. 2541. These appeals were then consolidated for appellate review.

Appellants first contend that the trial court erred in refusing to grant their motion to amend their post-trial motions to include additional allegations of trial error. In conjunction with this issue, appellants further claim that the trial court erred in determining that these additional errors were waived by appellants. With regard to the filing of original and supplemental post-trial motions, the procedural rules provide that:

(b) Post-trial relief may not be granted unless the grounds therefor, ... (2) are specified in the motion____ Grounds not specified are deemed waived unless leave is granted upon cause shown to specify additional grounds.
(c) Post-trial motions shall be filed within ten days after[:] (1) verdict____

Pa.R.C.P., Rules 227.1(b)(2) and (c)(1), 42 Pa.C.S.A. However, where a party files supplemental post-trial motions and no objection is raised by an opposing party, and where the trial court elects to ignore the untimeliness and address the merits of the issues, this court has indicated that the grounds raised in the supplemental post-trial motions are not waived, but have been properly preserved for appellate review. See Millard v. Nagle, 402 Pa.Super. 376, 380, 587 A.2d 10, 11-12 (1991) (en banc), citing Kurtas v. Kurtas, 521 Pa. 105, 109, 555 A.2d 804, 806 (1989). In cases where the opposing party objects to the untimely filing and asserts that he or she is prejudiced thereby, the trial court must then determine whether to grant or deny leave to file the supplemental post-motions and explain its rationale therefor. See Millard v. Nagle, supra, 402 Pa.Super. at 380, 587 A.2d at 12. The decision of the trial court may then be reviewed by this court under an abuse of discretion standard. Id.

In applying these principles to the facts of this case, we observe that the trial court did not grant appellants’ motion to amend and did not give appellants leave to file their supplemental post-trial motions. The trial court did not provide any explanation for its decision, and merely concluded that these additional claims were waived because of appellants’ failure to raise these matters in their original post-trial motions. See Trial Court Opinion, dated August 13, 1990, at 2-3. After reviewing the record, we discern no abuse of discretion committed by the trial court.

The record reveals that appellants did not seek leave to file their supplemental post-trial motions until July 27, 1990, almost five months after the date of the trial. Appellants did not offer any explanation or reason for their inability to raise the additional grounds in the original post-trial motion. Instead, appellants asserted that they expressly reserved the right to file additional post-trial motions after reading the transcript. See Appellants’ Brief, at 18. We neither approve nor condone this method of preserving claims for post-trial and appellate review, and we have repeatedly rejected the idea that a party can unilaterally extend the time in which to file post-trial motions by including such a statement in the originally filed post-trial motions. See, e.g., Commonwealth v. Kelly, 365 Pa.Super. 28, 36, 528 A.2d 1346, 1350 (1987), allocatur denied, 517 Pa. 598, 535 A.2d 1057 (1987) and Millard v. Nagle, supra, 402 Pa.Super. at 400, 587 A.2d at 22 (dissenting opinion by Tamilia, J.). Moreover, this court has recognized that where the additional grounds do not require a review of the transcript, they must be raised within the period prescribed by the rules in order to be preserved for review. See Kelly, 365 Pa.Super. at 36-37, 528 A.2d at 1350.

The matters which appellants sought to raise pertained to an allegedly erroneous jury instruction. Appellants specifically objected to the portion of the jury instruction relating to the federal reporting requirements following the lower court’s charge. See N.T. 3/9/90, at 115. Therefore, appellants were clearly aware of any alleged error and did not need to review the trial transcript in order to raise this issue in their original post-trial motions. Because the record reveals that appellants failed to offer any reason for their delay in asserting the additional grounds, and because appellants clearly failed to comply with the time requirements set forth in Rule 227.1(c), we are unable to conclude that the trial court abused its discretion by denying appellants’ leave to file supplemental post-trial motions in this case. We similarly find no error in the trial court’s conclusion that the matters contained in the supplemental post-trial motions were waived.

Having disposed of appellants’ initial claims, we need not address the question of whether the trial court erred in instructing the jury as to Dr. Block’s reporting requirements under federal law. However, even if we were to address the merits of this issue, we find that appellants would not be entitled to relief on this basis. This court recently reviewed a similar jury instruction in Levine v. Rosen, 394 Pa.Super. 178, 575 A.2d 579 (1990), allocatur granted, 526 Pa. 636, 584 A.2d 319 (1991). In Levine, the trial court gave the standard irrelevant considerations charge and then dismissed the jury. After defense counsel objected to this portion of the charge, the trial court recalled the jury and gave them an additional charge on the physician’s reporting requirements under federal law. On appeal, this court concluded that although the lower court’s corrected charge was an accurate statement of federal law, it undermined the irrelevant considerations instruction which had previously been given. Id., 394 Pa.Super. at 183, 575 A.2d at 581. We further observed that the federal reporting requirements were irrelevant to the merits of the medical malpractice action, as the requirements do not relate to the issue of the physician’s negligence. Id. Because this additional instruction may have contributed to the verdict, we reversed the judgment and remanded for a new trial. Id.

In this case, the trial court instructed the jury as follows: A medical malpractice case is a civil action for damages, and nothing more. The sole issue is whether the plaintiff has suffered injuries as a result of the defendant’s negligence, and is thus entitled to monetary compensation for those injuries. The case does not involve punishment of the defendant or even criticism of his professional abilities beyond the fact of this matter. The claim—the only requirement is that he has an obligation, under the federal law, to report to a licensing board the results of this case and the circumstances relating to it. The claim does not involve the defendant’s reputation, his medical practice or his rights as a licensed physician. Therefore, no thought should be given to these irrelevant considerations in reaching a verdict in this case.

N.T., 3/9/90, at 109.

As we recognized in Levine, the discussion of a physician’s duty to report the results and circumstances of the case is irrelevant to the issue of whether the physician was negligent. See Levine, supra. However, appellants would only be entitled to a new trial if the instructions might have contributed to the verdict. See Levine, supra, citing Jones v. Montefiore Hospital, 494 Pa. 410, 419, 431 A.2d 920, 925 (1981). Unlike the situation presented in Levine, the trial court in this case did not call the jury back to instruct it on the physician’s duty to report the circumstances of the case under federal law. Instead, the trial court mentioned this requirement in the context of its discussion relating to irrelevant matters and specifically instructed the jury that it should not give any thought to.these factors. Because the jury was instructed to disregard these irrelevant concerns, including Dr. Block’s duty to report the outcome of this case, the trial court’s instruction could not have contributed to the verdict.

Moreover, under the Health Care Quality Improvement Act of 1986, 42 U.S.C.A. §§ 11101, 11131 and 11134, a physician is only required to report a payment made in settlement or satisfaction of a medical malpractice claim. The trial court in this case did not instruct the jury that Dr. Block would only have to report the result if he actually made payment to appellants in satisfaction of their claim, but informed the jury that Dr. Block would be required “to report the results of this case and the circumstances relating to it.” See N.T. 3/9/90, at 109. Thus, even if the jury considered this instruction, it could not have influenced the jury’s verdict because the instruction indicated that Dr. Block would be required to report the outcome of the case to the federal licensing board, regardless of whether the jury’s verdict was entered in favor of Dr. Block or the Sinclairs.

In their fourth issue, appellants assert that the trial court erred in giving the “two schools of thought” charge to the jury, and claim that such a charge was inappropriate because there was no evidence that the experts disagreed on the application or use of forceps to deliver the baby. In general, “[t]he “two schools of thought” doctrine provides that a doctor will not be liable for medical malpractice if he follows a course of treatment supported by reputable, respected and reasonable medical experts.” Levine, 394 Pa.Super. at 183, 575 A.2d at 581. The doctrine is therefore only applicable “in medical malpractice cases where there is more than one method of accepted treatment for the patient’s disease or injury.” Furey v. Thomas Jefferson University Hospital, 325 Pa.Super. 212, 224, 472 A.2d 1083, 1089 (1984). However, a jury instruction on this doctrine has been found inappropriate or inapplicable where the experts agree on the method of treatment for a particular disease or condition, but disagree on whether the symptoms exhibited by the patient were consistent with such a condition and whether the physician was negligent in failing to diagnose the condition. See Levine, 394 Pa.Super. at 183-184, 575 A.2d at 581-582, citing Morganstein v. House, 377 Pa.Super. 512, 517-519, 547 A.2d 1180, 1182-1183 (1988), appeal dismissed, 525 Pa. 498, 581 A.2d 1377 (1990), (which held that the two schools of thought doctrine was inapplicable where the medical experts agreed on the treatment of unstable angina, but disagreed as to whether the patient’s symptoms and EKG disclosed the illness and should have been diagnosed) and D’Angelis v. Zakuto, 383 Pa.Super. 65, 69-71, 556 A.2d 431, 433-434 (1989) (which held that the two schools of thought instruction was inapplicable where the experts did not disagree on the proper treatment for pneumonia, but disagreed as to whether the patient’s condition should have been diagnosed in view of the symptoms exhibited by the patient).

In this case, appellants believed that Dr. Block was negligent for attempting to deliver the baby by the use of forceps; thus, it was their position that he should have proceeded to directly perform a caesarean section. See N.T. 3/1/90, at 119; 3/8/90, at 214-216; and 3/9/90, at 10-12. In support of this theory, appellants’ expert, Dr. Pinshaw, admitted that while the use of forceps was appropriate in some cases, they should not have been used to deliver the baby in this case. See N.T. 3/1/90, at 89-90 and 95-97. Contrary to this testimony, appellees presented the testimony of Dr. Schneider, who testified that it was reasonable to first attempt a forceps delivery before proceeding to perform a delivery by caesarean section because of the relatively minor risks associated with a forceps delivery, as compared to the more serious risks associated with a caesarean delivery. See N.T. 3/6/90, at 20-21 and 23-25. In fact, Dr. Schneider indicated that caesarean sections should be avoided unless they were absolutely necessary. See id., at 25. This preference for avoiding caesarean sections was further discussed by Dr. Block, who indicated that while increasing numbers of caesarean deliveries were performed at the time of Paula’s delivery, this trend had reversed itself in that more physicians are returning to the use of forceps and are avoiding caesarean deliveries. See N.T. 3/8/90, at 41-42.

As established by this testimony, it is clear that the experts did not disagree as to the diagnosis of Mrs. Sinclair’s condition since all of the physicians believed that it was necessary to deliver the baby. See N.T. 3/1/90, at 86 and 122-123; and 3/6/90, at 22-23. Instead, they disagreed as to the manner or type of treatment which should have been administered to Mrs. Sinclair to assist her with the delivery of her child. Under these circumstances, the “two schools of thought” instruction was required and we find that the trial court did not err in giving this instruction to the jury.

Appellants next challenge the trial court’s determination that a delivery by forceps is not a surgical procedure which requires application of the informed consent doctrine. The parties do not dispute the fact that Mrs. Sinclair was never advised of the risks associated with a forceps delivery while she was in labor. See N.T. 3/7/90, at 103. Similarly, there is no disagreement that Mrs. Sinclair never specifically consented to the forceps delivery. However, Mrs. Sinclair admitted that she signed a general consent form which authorized Dr. Block to perform any procedure which was necessary to treat any problem or condition that might have occurred during her labor. See N.T. 3/7/90, at 114-115 and 119-123. While it is undisputed that she consented to have her child delivered by Dr. Block, the question remains as to whether the use of forceps would fall within the scope of this general consent or whether it is a separate surgical or operative procedure which requires the physician to obtain additional consent.

In concluding that a forceps delivery is not a surgical procedure which requires the physician to obtain the patient’s consent, the trial court cited Bulman v. Myers, 321 Pa.Super. 261, 467 A.2d 1353 (1983) and Sauro v. Shea, 257 Pa.Super. 87, 390 A.2d 259 (1978). These decisions offer scant assistance as both cases involve the extraction of teeth, a procedure which is clearly surgical or operative in nature. In reviewing the existing cases which discuss the informed consent doctrine, we observe that the cases fall into two distinct categories: (1) those involving a surgical procedure in which the patient is anaesthetized, an incision is made, and pieces of tissue, bone, etc. are excised; and (2) those involving the prescription of drugs or those involving the failure to disclose facts which are personal to the physician. In the former category, the doctrine has always been applied, while in the latter it has not. Further, in the cases to which the doctrine applies, the facts frequently reveal situations in which the physician was authorized to perform a particular procedure, but exceeded the scope of that authority by performing additional procedures. See, e.g., Millard v. Nagle, supra (in which the physician was authorized to repair the patient’s bladder, and proceeded to remove the patient’s only remaining ovary which was enlarged and which hindered the physician’s ability to repair the bladder) and Moure v. Raeuchele, supra (in which the physician was authorized to evaluate and locate the cause of the patient’s inability to become pregnant, and the physician performed a surgical repair of the patient’s damaged fallopian tubes). The only case which indirectly addresses the question of whether a particular procedure constitutes a surgical or operative procedure is Doe v. Dyer-Goode, 389 Pa.Super. 151, 156, 566 A.2d 889, 891-892 (1989), allocatur denied, 527 Pa. 587, 588 A.2d 509 (1990), in which this court indicated in dicta that the insertion of a needle for the purpose of drawing blood was not the type of surgical procedure that would require an application of the doctrine.

From a review of the above cases, it appears that none of these decisions is similar to the facts presented in this case. Rather, the facts before us are more analogous to a situation in which a physician uses a tool to accomplish a particular task. For example, physicians routinely utilize otoscopes to examine the ears and ear canals of their patients. In performing such an examination, the physician would not be required to specifically obtain the patient’s consent to use the otoscope, as this procedure would be covered by the patient’s general consent to the examination. Similarly, a gynecologist typically inserts a speculum into a woman’s vagina in order to perform a vaginal examination. Again, such a procedure would not require the physician to obtain the patient’s specific consent to utilize this tool, as it would be covered by the patient’s general consent to the examination.

In comparing the use of forceps with the use of these types of instruments, it would be erroneous to treat a forceps delivery as the type of operative or surgical procedure which requires the physician to obtain additional consent. Like the use of an otoscope or the insertion of a speculum, the use of forceps merely involves the application of a tool to assist the physician in providing treatment. Moreover, the use of forceps is not as drastic a measure as the usual surgical or operative procedure, such as a caesarean delivery, which requires complete anaesthesia of the mother, a surgical incision into the mother’s abdominal wall and extraction of the child. The case sub judice is also distinguishable from those cases in which the physician exceeded the scope of the consent, since Mrs. Sinclair specifically authorized Dr. Block to perform any procedure which was necessary to accomplish the delivery of her child. For these reasons, we agree with the trial court that Dr. Block was not required to obtain Mrs. Sinclair’s specific consent to use forceps to deliver the child because she had already given her general consent to the delivery.

Having made this determination, we must ascertain whether the trial court erred in entering a nonsuit in favor of Dr. Block on the issue of informed consent. A nonsuit may only be granted where the plaintiff has failed to establish a right to relief. Pa.R.C.P., Rule 230.1, 42 Pa. C.S.A. and Bowser v. Lee Hospital, 399 Pa.Super. 332, 336-38, 582 A.2d 369, 371 (1990). As applied to this case, we determined that it was unnecessary for Dr. Block to obtain Mrs. Sinclair’s specific consent to use forceps in the delivery because the use of forceps is not a surgical or operative procedure which requires application of the informed consent doctrine. Further, Mrs. Sinclair testified that she discussed the delivery procedures with either Dr. Block or his partners and authorized them to perform any procedure which was necessary to deliver her child. See N.T. 3/7/90, at 119-123. In view of the uncontradicted evidence that Mrs. Sinclair consented to this procedure, we discern no error in the trial court’s entry of a nonsuit as to the question of informed consent.

Appellants’ sixth issue requires us to determine whether the trial court erred in refusing to instruct the jury on the informed consent doctrine. As explained above, the trial court entered a nonsuit on appellants’ informed consent theory because there was uncontradicted evidence that Mrs. Sinclair had consented to the use of any procedure with regard to the delivery of her child. Since the question of Mrs. Sinclair’s consent no longer remained a viable issue for the jury’s consideration, it follows that the trial court did not err in refusing to instruct the jury on this theory. See Pagesh v. Ucman, 403 Pa.Super. 549, 589 A.2d 747, 749 (1991) (which indicates that a trial court’s failure to give requested points for charge will only be reversed where the instructions are accurate and applicable to the facts of the case), citing Yost v. Union Railroad Company, 380 Pa.Super. 236, 244, 551 A.2d 317, 321 (1988), allocatur denied, 522 Pa. 603, 605, 562 A.2d 876, 877 (1989). See also, Commonwealth v. Snoke, 525 Pa. 295, 301-02, 580 A.2d 295, 298 (1990) (holding that there is no requirement for the trial judge to instruct the jury as requested by either counsel if the issue is not in dispute or the law is not applicable to the case.).

In their seventh issue, appellants’ challenge the trial court’s preclusion of testimony offered by Mrs. Sinclair relating to the informed consent issue. With regard to this issue, this court has long recognized that “[t]he decision to admit or exclude evidence rests within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion____ [T]he court may exclude evidence that is irrelevant, confusing, misleading, cumulative or prejudicial.” Pagesh v. Ucman, supra, 403 Pa.Super. at 558, 589 A.2d at 751 (citations omitted). Because we find the precluded testimony to be cumulative or repetitive of testimony which had already been given by Mrs. Sinclair, we decline to reverse the trial court’s ruling.

At trial, Mrs. Sinclair was questioned as to the events which immediately preceded the delivery of her child and her conversations with Dr. Block. Her testimony was as follows:

Q. If you can, when did you first learn that you were going to the delivery room?
A. About 12:30, 12:45.
Q. And before going to the delivery room, did you have any conversations with Dr. Block concerning the type of delivery that would be performed?
A. No I didn’t....

N.T, 3/7/90, at 103. Appellants’ counsel then proceeded to ask Mrs. Sinclair whether Dr. Block had explained the risks associated with a forceps delivery to Mrs. Sinclair at any time prior to his application of the forceps. See id., at 104. At this point, appellees’ objected on the basis that the question had already been asked and answered by the witness. The trial court sustained the objection. In reviewing this testimony, we find that the trial court did not err in precluding additional testimony since Mrs. Sinclair had/previously admitted that she had no conversation with Dr. Block before she entered the delivery room. If no conversation with Dr. Block occurred, then it follows that he could not have explained the risks or anything else to Mrs. Sinclair. Accordingly, the trial court did not err in precluding this additional and cumulative testimony. Moreover, even if it is assumed that the trial court erred in precluding Mrs. Sinclair’s téstimony, the error must be deemed harmless since it could not have contributed to the verdict or otherwise affected the outcome of the case.

In their final issue, appellants allege that the trial court erred in refusing to remove the nonsuit entered in favor of Philadelphia OB-GYN Group. Appellants concede that this issue is moot in view of our resolution of the previous issues and conclusion that appellants’ are not entitled to the award of a new trial. See Appellants’ Brief, at 40. Accordingly, we need not further address this issue.

In sum, we determined that appellants did not sufficiently establish good cause for their failure to timely raise their additional grounds for post-trial relief. Consequently, we found that the trial court did not err in denying appellants leave to file their supplemental post-trial motions. Similarly, the trial court did not err in concluding that appellants’ challenge to the trial court’s jury instruction was waived because appellants’ failed to properly preserve this issue for review. We noted, however, that even if we were to address this issue, appellants would not be entitled to relief as the erroneous jury instruction could not have contributed to the verdict in this case. We further held that the trial court did not err in instructing the jury as to the two schools of thought doctrine, because the experts in this case disagreed as to the type of treatment which should have been administered to Mrs. Sinclair with regard to the delivery of her child. We next addressed the applicability of the informed consent doctrine to the facts of this case and concluded that it was unnecessary for Dr. Block to obtain Mrs. Sinclair’s specific consent to use forceps as Mrs. Sinclair had previously authorized Dr. Block to use any procedure that was necessary to accomplish the delivery of her child. As a result, we found that the trial court did not err in entering a nonsuit on this issue. Similarly, the lower court did not err in refusing to charge the jury on the issue of informed consent as this issue had been withdrawn from the jury’s consideration and was therefore irrelevant. Appellants also questioned the trial court’s preclusion of testimony with regard to Dr. Block’s failure to advise Mrs. Sinclair of the risks associated with a forceps delivery while she was in the delivery room. With regard to this issue, we found no error in the trial court’s ruling as the witness had previously given similar testimony which responded to the question. Finally, we determined that while the trial court erred in entering a nonsuit as to POGGL, the error was moot because the jury found that Dr. Block was not negligent. As none of the grounds raised by appellants entitles them to the award of a new trial, the judgments entered in favor of appellees are affirmed.

Judgment and Order affirmed.

      . POGGL was a Pennsylvania corporation which consisted of Dr. Block and two other physicians with whom he practiced obstetric and gynecological medicine. See N.T. 3/2/90, at 7.

      . Appellants have violated Pa.R.A.P., Rule 2116(a), 42 Pa.C.S.A., which provides that ‘‘[t]he statement of the questions involved must state the question or questions in the briefest and most general terms____ It should not ordinarily exceed 15 lines, [and] must never exceed one page____ This rule is to be considered in the highest degree mandatory, admitting of no exception____” In reviewing the Statement of Questions contained in appellants’ brief, we observe that it spans three pages and raises nine issues. Because these defects do not substantially hamper our ability to provide effective and meaningful review, we will not dismiss the appeal. However, "[w]e remind [appellants] that the rules [of procedure] are mandatory, not directory, and that in appropriate cases, we will not hesitate to impose sanctions, including the draconian remedy of dismissing the appeal[,]” whenever a party fails to comply with the rules. Pleet v. Valley Greene Associates, 371 Pa.Super. 530, 531-532 n. 1, 538 A.2d 567, 568 n. 1 (1988).

      . We have restated the issues raised by appellant for ease of discussion.

      . This phenomenon was described as an “arrest of descent.” See N.T. 3/1/90, at 80-81.

      . Mrs. Sinclair’s child, Paula, was situated with the back of her head turned towards the mother’s right side. See N.T. 3/1/90, at 74. Dr. Block indicated that it was not possible to deliver the baby with its head in this position. See N.T. 3/8/90, at 50.

      . Essentially, the forceps would be used to rotate or turn the baby to the correct position, that is, with the back of the baby’s head turned towards the mother’s abdomen. See N.T. 3/6/90, at 27.

      . The mark was very faint and disappeared after a few days. No other forceps marks were noticed on Paula's head.

      . Health Services Plan of Pennsylvania (HSPOP), a Pennsylvania Corporation which provided health care services to appellants, was also identified as an original defendant in the complaint. See Complaint, at paragraph 4. By agreement of the parties, suit as to this defendant was discontinued on September 16, 1988. Thus, HSPOP is no longer a party to this action and is not involved in this appeal.

      . Appellants essentially sought leave to file supplemental post-trial motions.

      . We observe that the trial court could properly have exercised its discretion and considered the additional claims raised by appellants, despite the fact that these claims were untimely. See Pa.R.C.P., Rule 126, 42 Pa.C.S.A. (which permits a trial court to disregard the rules in the interest of justice). However, this rule does not mandate or require a trial court to consider untimely supplemental post-trial motions, especially where the party asserting the grounds has offered insufficient or no reason for the delay.

      . We note that Judge Diaz, the lower court judge who presided in Levine, was the same judge who heard the case sub judice.

      . Appellants’ argument on appeal is contradicted by the record in which they explained their various theories of negligence to the trial court. Primarily, appellants’ believed that: (1) Dr. Block should not have applied forceps, but should have performed a caesarean delivery; and (2) that he negligently applied the forceps. See N.T. 3/8/90, at 214-215 and N.T. 3/9/90, at 10-12.

      . See, e.g., Bulman v. Myers and Sauro v. Shea, supra, in addition to Millard v. Nagle, supra, (concerning the removal of an ovary); Gouse v. Cassel, 385 Pa.Super. 521, 561 A.2d 797 (1989), allocatur granted, 524 Pa. 608, 569 A.2d 1367 (1989) (involving a splenectomy); and Moure v. Raeuchele, 387 Pa.Super. 127, 563 A.2d 1217 (1989), allocatur granted, 524 Pa. 629, 574 A.2d 70, 71 (1990) (pertaining to the surgical repair of a damaged fallopian tube).

      . See, e.g., Keech v. Mead Johnson & Co., 398 Pa.Super. 329, 580 A.2d 1374 (1990), Tarter v. Linn, 396 Pa.Super. 155, 578 A.2d 453 (1990) and Boyer v. Smith, 345 Pa.Super. 66, 497 A.2d 646 (1985) (all of which involved the prescription of drugs); and Kaskie v. Wright, 403 Pa.Super. 334, 589 A.2d 213 (1991), reargument denied, April 29, 1991, slip op. at 8, No. 1412 Philadelphia 1990, (filed February 13, 1991) (opinion by Montemuro, J.) (in which this court declined to expand the doctrine of informed consent to include a duty to advise a patient of information relating to the physician’s credentials).

      . A determination of whether the withdrawal of blood was a surgical procedure was irrelevant to this court’s resolution in Doe v. DyerGoode, since the plaintiff had consented to the procedure.

      . In view of our conclusion that specific consent to use forceps was unnecessary, we need not address appellants’ arguments relating to the timing of the consent. Appellants suggest in their brief that Dr. Block should have advised Mrs. Sinclair of the risks associated with the forceps delivery and obtained her consent after he realized that the baby was stuck in the birth canal. See Appellants’ Brief, at 32-33. We reject appellants’ position. To explain such a procedure to a woman who has been in labor for several hours, and who is undoubtedly tired and in pain, would be ineffective and inappropriate. Under such circumstances, it is unlikely that the mother is able to think clearly and coherently and weigh the risks. Moreover, such an explanation would place unnecessary and unwarranted stress upon the mother. If an explanation of the delivery process is to be given, it should occur prior to labor, as was done in this case when Mrs. Sinclair signed the general consent form. In this manner, the patient will have the opportunity to reflect upon the various methods of childbirth and discuss these procedures with her obstetrician.

      . Following the close of appellants’ case, appellees moved for the entry of a compulsory nonsuit on the issue of informed consent. N.T. 3/7/90, at 136. Appellees’ motion was granted by the lower court. Id., at 145. Although the lower court and counsel for the parties have described this ruling as a "compulsory nonsuit" this characterization is erroneous as appellants were permitted to submit their case to the jury for a determination as to whether Dr. Block was negligent in delivering the child. Thus, the lower court did not technically enter a compulsory nonsuit, but removed appellants' claim based on lack of informed consent from the jury’s consideration and refused to instruct the jury thereon because the evidence did not support such a theory of recovery. N.T. 3/8/90, at 210.

      . Appellants also suggest that the trial court erred in entering a nonsuit because appellees presented evidence prior to the entry of the nonsuit. See Appellants’ Brief, at 31 n. 5. However, appellants admit that they never raised this specific objection at the time the nonsuit was entered. See Appellants' Brief, id. Accordingly, this argument is deemed waived. See Pa.R.C.P. Rules 227.1(b)(1) and Pa.R.A.P., Rule 302(a), 42 Pa.C.S.A. Even if we were to consider this argument, we observe that appellees did not enter a complete defense in this case prior to the close of appellants’ case. Rather, for reasons not appearing of record, appellees had to present the testimony of Dr. Schneider during appellants’ case. Prior to presenting this testimony, counsel for the parties entered into an agreement and obtained the court’s permission to present this witness out-of-turn. See N.T. 3/6/90, at 3. Also, this testimony was not directed towards the informed consent issue, but related to appellants’ other theories of liability which survived the entry of the nonsuit. Under these particular circumstances, appellees cannot be said to have presented a defense.

      . As previously discussed, the trial court entered a nonsuit on appellants' informed consent theory. Consequently, this issue was no longer before the jury and any testimony on this issue would not have been considered by the jury in rendering its verdict. Under these circumstances, the error committed by the trial court, if any, was harmless.

      . Of course, if the jury had found Dr. Block to have been negligent in delivering the baby then the trial court’s entry of the nonsuit as to POGGL would have been erroneous. At trial, appellants introduced evidence that Dr. Block and the other physicians with whom he practiced had formed a professional corporation. See N.T. 3/2/90, at 7. Under the Professional Corporation Law, ‘‘[t]he professional corporation shall be liable ... for any negligent or wrongful acts or misconduct committed by any of its officers, shareholders, employees or agents while they are engaged on behalf of the corporation in rendering professional services." See 15 Pa.C.S.A. § 2925(b) (which is substantially a reenactment of the prior Professional Corporation Law, Act of July 9, 1970, P.L. 461, No. 160, § 13, 15 P.S. § 2913, which was in effect at the time Paula was delivered by Dr. Block.). Thus, POGGL would have been held liable if the jury had determined that Dr. Block was negligent.


author:
DEL SOLE, Judge:
      BROSKY, Judge,

text:
    594 A.2d 761
    Carole BRIGGS, Administratrix of the Estate of Patricia C. Briggs, Late, of Port Allegany McKean County, Pennsylvania, Appellant, v. ERIE INSURANCE GROUP, a/k/a Erie Insurance Exchange, a/k/a Erie Insurance Company, Appellee. Audrey J. PAINTER, Administratrix of the Estate of Tina M. Barr, Late, of Port Allegany, McKean County, Pennsylvania, Appellant, v. ERIE INSURANCE GROUP, a/k/a Erie Insurance Exchange, a/k/a Erie Insurance Company, Appellee.
    Superior Court of Pennsylvania.
    Argued Feb. 27, 1991.
    Decided July 19, 1991.

      Harold B. Fink, Jr., Port Allegany, for appellant.
    T. Warren Jones, Erie, for appellee.
    Before DEL SOLE, FORD ELLIOTT and BROSKY, JJ.
   DEL SOLE, Judge:

This is an appeal from an order granting Summary Judgment in favor of Appellee, Erie. Appellants, Briggs and Painter, representatives of the estates of their deceased daughters, seek review of the trial court’s action on their claim against Erie for fraudulent inducement. Upon review of this claim and the arguments presented, we conclude that Summary Judgment was improperly entered in this case. Contrary to the trial court’s finding, the Appellants’ claims against Erie do not seek rescission of a settlement agreement, but rather are claims for damages based upon Erie’s fraudulent acts which occurred during settlement proceedings. Because rescission of the settlement agreement is not sought, the trial court erred in ruling that Appellants’ actions were precluded by this court’s previous decisions in a matter involving these Appellants, and therefore, Appellants may proceed in litigating their claims.

In issuing its ruling the trial court relied on the factual events which preceded the filing of the instant complaint. Ms. Briggs and Ms. Painter each had a daughter who died as a result of an automobile collision with a vehicle operated by Michael Smith. Erie, Smith’s insurer, initiated settlement discussion with Briggs and Painter in their capacities as representatives of their daughters’ estates. As a result of these “discussions” Briggs executed a general release for a settlement of $125,000, and Painter did likewise for the amount of $130,000. Both releases recite that they operate as a release of all claims against Michael Smith “and any and all other persons, firms, corporations, [and] associations, ... arising out of the accident on or about January 11, 1987.” Briggs and Painter later brought an action against Michael Smith and Michael Taylor, another individual alleged to be responsible for the accident. Smith and Taylor pled the defense of the release. The trial court granted the defendant’s preliminary objections, ruling that plaintiffs, having failed to tender the settlement proceeds, could not attack the releases and seek their rescission. On appeal to the Superior Court the trial court’s decision was affirmed “on the basis of [the trial court’s] opinion.”

In the instant action brought against Erie, the trial court, when presented with a motion for Summary Judgment, ruled that Appellants “failed to meet the prerequisite for rescission, i.e., the tender of the contract or settlement proceeds, pursuant to the Superior Court Order.” The trial court concluded that “the holding of the Superior Court that the releases were binding and enforceable is now a final judgment and precludes the present claims against defendant Erie insurance.”

The trial court’s ruling in the instant matter is premised on the belief that Appellants seek to rescind the release. Such is not the case. Appellants’ Complaints seek damages for the fraud allegedly perpetrated by Erie’s employee. The Complaints aver that an adjuster for Erie “intentionally, fraudulently, and maliciously informed the [Appellants] of certain facts which were not true and which were designed ... for the express purpose of inducing the [Appellants] to settle.” Appellant-Briggs alleges that she was told that the maximum amount of liability insurance coverage was in the amount of $125,000 when, in fact, the limits of the liability policy were $250,000/$500,000. A similar allegation is found in Appellant-Painter’s Complaint which states that she was told the policy limits were $150,-000. It is also alleged that the adjuster informed Appellant-Briggs that if she were to obtain her own attorney it would cost her substantial sums of money causing her to receive less than the amount being offered to settle the case. The Complaints further provide that Appellants are precluded from asserting causes of action against Michael Smith and Michael Taylor because of the fraudulently induced releases. Appellants do not in their Complaint seek rescission of the releases, but rather seek damages for the losses they have allegedly suffered due to this fraudulent action. Because Appellants are not seeking to avoid their releases, a return of the settlement proceeds is not a prerequisite to this action. Hess v. Evans, 288 Pa.Super. 180, 431 A.2d 347 (1981).

For these same reasons, the trial court erred in concluding that the instant action was controlled by this court’s previous decision in Appellants’ case against Smith and Taylor. Neither the parties, nor the issues in these two matters are the same. In fact, this court affirmed the trial court’s actions in the previous case brought against the individual tortfeasors based upon a trial court opinion which contained the following language:

Although the plaintiff claims to be the victim of fraud, that is a separate cause of action that should be directed toward those alleged to have perpetrated it. Such an allegation cannot be used to justify relitigating a cause of action against these individual defendants who are protected by the release and who played no part in the alleged fraud.

As suggested by the trial court in the previous case, Appellants now have brought a separate action in fraud against the alleged perpetrator, Erie.

The Supreme Court recently considered a case with a similar collateral estoppel claim. In Muhammad v. Strassburger, 526 Pa. 541, 587 A.2d 1346 (1991) the Muhammads filed a legal malpractice suit against the attorney and the firm who had represented them in a medical malpractice case in which a settlement was reached. The appellants alleged that the suit against them should have been dismissed because it sought to relitigate the settlement, which the Superior Court in a previous case upheld. See Muhammad v. Childrens’ Hospital of Pittsburgh, 337 Pa.Super. 635, 487 A.2d 443 (1984) (unpublished memorandum opinion.) The Supreme Court found that the second action was not barred by the doctrine of collateral estoppel. The court stated:

The issue in the first case was whether Mrs. Muhammad had authorized the settlement. The issues in the case before us are whether the attorney appellants were negligent and/or deceitful in their representation of the Muhammads and, if so, whether the Muhammads suffered harm as a result. It is thus evident that the matter is not barred by the doctrine of collateral estoppel as there are issues in this case that were not litigated in the medical malpractice case.
526 Pa. at 546, 587 A.2d at 1348.)

Similarly in this case, the issue Appellants seek to have addressed is the fraudulent conduct by Smith’s insurer, Erie. The previous action filed by Appellants was not brought against Erie but was against two individual tortfeasors. The trial court in its opinion in the previous case noted that the fraudulent conduct of the insurer was not an issue, and it dismissed Appellants’ claims against the individual tortfeasors on the basis that Appellants had failed to return the settlements proceeds which precluded them from pursuing a rescission of the settlement agreement and release. As in Muhammad v. Strassburger, the doctrine of collateral estoppel does not bar the instant matter since there are issues in this case which were not litigated in Appellants’ case against the individual tortfeasors.

Although we conclude that Appellants’ claims against Erie are not barred by collateral estoppel, and that Appellants were not required to submit the settlements proceeds to the court before litigating this claim, we find it necessary to examine the claims made by Appellants to determine if they are viable.

When reviewing an entry of summary judgment, the appellate court's scope of review is plenary. Curry v. Estate of Thompson, 332 Pa.Super. 364, 481 A.2d 658, 659 (1984). In applying the same standard as the trial court we must accept as true all well pleaded facts in the non-moving party’s pleadings, giving the non-moving party the benefit of all reasonable inferences to be drawn therefrom. Id. To uphold summary judgment, there must be not only an absence of genuine factual issues, but also an entitlement to judgment as a matter of law. Rybas v. Wapner, 311 Pa.Super. 50, 457 A.2d 108, 109 (1983).

The claims made by Appellants in the instant case are based upon allegations of fraudulent inducement. Erie submits that these claims arise out of the accident and are, therefore, barred by the release. Erie continues by arguing that Appellants, in their previous action seeking to rescind the settlement, elected a remedy and they cannot now seek damages based upon the same contract.

Appellants in the instant case are not bringing this action based upon the settlement contract, as Erie contends. Their action is also not based upon claims arising out of the automobile accident, which would be barred by the release. Appellant claims relate solely to specific conduct which they allege Erie’s agents engaged in during certain settlement discussions. It is this conduct, which Appellants allege was intentional, fraudulent and malicious, which forms a basis for their cause of action.

In Muhammad we were again reminded of the longstanding public policy which encourages settlements. In recognizing such a policy the court concluded that plaintiffs will not be permitted to file suits against their attorneys unless it can be shown that they were “fraudulently induced to settle the original action.” The Supreme Court rejected the concept that an action could be brought against an attorney for malpractice based on negligence and/or contract principles when the client has agreed to the settlement, but concluded “only cases of fraud should be actionable.” Muhammad v. Strassburger, supra, (526 Pa. at 546, 587 A.2d at 1348) (Justices Larsen and Zappala dissenting.)

As the Muhammad case demonstrates, a claim based upon the fraudulent conduct of one’s counsel is a separate matter from issues involving the sanctity of settlement agreements. Likewise the fraudulent conduct of a third party, which occurs during settlement proceedings between an injured party and a tortfeasor, is actionable where the necessary elements are alleged. “One may not, with impunity, induce another to contract by fraudulent misrepresentations.” College Watercolor Group, Inc. v. Wm. H. Newbauer, Inc., 468 Pa. 103, 360 A.2d 200, 206 (1976).

Traditionally, in order to state a cause of action for fraud, the plaintiff was required to establish: (1) a misrepresentation, (2) a fraudulent utterance thereof; (3) an intention by the maker that the recipient will thereby be induced to act; (4) justifiable reliance by the recipient upon the misrepresentation; and (5) damaged to the recipient as the proximate result. Delahanty v. First Pennsylvania Bank, N.A., 318 Pa.Super. 90, 108, 464 A.2d 1243 (1983). We have recently clarified the second element of the test to refer to the intent or scienter required for an utterance to be considered fraudulent, which intent has been characterized as knowing or reckless. B.O. v. C.O., 404 Pa.Super. 127, 132, fn. 1, 590 A.2d 313, 315 fn. 1 (1991). The allegations contained in Appellants’ complaint satisfy each of these elements.

As stated, Appellants contend that Erie’s employee made a misrepresentation of the policy limits announcing that they were a particular figure when in fact they were in a higher amount. Appellants also alleged this misrepresentation was intentionally and maliciously made and that it justifiably induced them to act to sign their releases, which precluded them from seeking further benefits. We find these actions, which for purposes for summary judgment we accept as true, constitute fraudulent conduct. While a carrier may in good faith negotiate a settlement and is not required to state its insured’s policy limits, when it chooses to disclose this information it must do so honestly.

Where, as here, it is alleged that an insurance company misrepresents a material fact to induce settlement, such as the limits of the applicable policy, and this misrepresentation causes a settlement to occur, the plaintiff who can prove this fraudulent conduct is entitled to damages. Because Appellants make such an allegation in the instant case; and because their action is not barred by the release or any previous litigation concerning different parties and separate matters, we vacate the award of Summary Judgment and remand this matter for further proceedings.

Judgment vacated. Case remanded for further proceedings. Jurisdiction relinquished.

BROSKY, Judge,

concurring.

I concur with the result reached by the majority, but write here for purposes of clarification of a few matters.

I believe the key to the present case lies in a premise made in appellee’s brief. Appellee acknowledges in its brief that one who is fraudulently induced into a contract has two distinct remedies. Appellee’s brief, p. 20. One, pursuing the voidable nature of the fraudulently induced contract he can seek recission of the contract and be placed in a status quo ante; or, two, he can affirm the contract as formed and sue for damages resulting from the fraud. National Building Leasing Inc. v. Byler, 252 Pa.Super. 370, 381 A.2d 963 (1977). In an indirect fashion the issue of fraudulent inducement was introduced into the first filed action against the defendant-tortfeasors. However, it was found that, even in the presence of fraud, avoidance of the consequences of the release and a restoration to the status quo ante required tender of the settlement proceeds. Both appellants appeared unable to meet this requirement. In the present action appellants are, perhaps by necessity, seeking the latter remedy. Since there is no desire to rescind the contract it is unnecessary to return the proceeds of the previously executed settlement. Thus, we can dispel appellee’s first argument.

Appellee has also suggested that the present action is barred by the doctrine of res judicata. However, this is not the case. Appellant’s first action was a claim for liability based upon negligent operation of a motor vehicle. The present action is a claim for fraud based upon settlement negotiations which ensued after the automobile accident. Not only are the parties different, the nature of the claims and the facts supporting them, although interrelated, are distinctly different as well. Therefore, res judicata does not bar the present action.

Perhaps appellee really wished to make a collateral estoppel argument. Appellee asserts that appellants are raising the same “claim” as earlier, that the release was procured through fraud. However, it is notable that appellants at no time initiated an action for recission of the contract. Rather, appellee interjected this issue by asserting the release as an affirmative defense to the liability action. Appellants countered with an assertion that the release was invalid due to fraud. The thrust of their position at that time was that the release did not prevent an action for damages resulting from the auto accident because the release was fraudulently procured. The court found, without addressing the fraud issue, that even if fraudulently procured, absent a tender of the consideration the release would bar the liability action. Thus, although the issue was presented to the court the claim was for damages as a result of the auto accident, not an action for recission of the contract.

Although, appellee argues that the procedural framework is a distinction without a difference, I cannot agree. Res judicata is a doctrine of claim preclusion. Appellants’ claim in the first action was for damages resulting from an auto accident. The claim in the second action was for damages resulting from fraud in settlement negotiations. These are distinctly different actions supported by different facts. If both actions relied upon the same facts, appellee would be correct. Appellants would have been obligated to pursue both “claims” in the original proceeding. However, that is not the case. That the issue of fraud was brought up in the first action could, at best, set up a possibility of collateral estoppel or issue preclusion. However, I see no issue decided in the previous action which would prevent the present action from proceeding. The fact of the matter is, a key issue was decided in the previous litigation, that being that notwithstanding any fraud in the inducement, absent a return of the settlement proceeds the release will bar a liability action against the original defendants. However, this fact is insufficient to prevent the hearing of the fraud claim presently before the court because such an action does not turn upon recission of the settlement contract or an avoidance of that release. The present action, in essence, assumes an affirmance of the contract and a suit for damages related to the fraud. The damages sought are for the perpetration of the fraud, and although related to the deaths occurring in the auto accident, the damages are not for those deaths. The factual issue paramount to the present action, whether or not there was a fraudulent inducement, has not yet been decided.

The above discussion should dispel appellee’s last argument, that appellants are precluded from suing for fraud because they had already elected their remedy, that being recission, in the first action. The fact of the matter is, the remedy sought by appellants in the first action was money damages for the death of their decedents. The validity of the release was an issue collateral to the first action which was interjected by appellee. Appellants did not choose a remedy of recission, but argued fraud to counter the defense asserted by the defendants. The present action seeks money damages for fraud. Thus, the only remedy which has been sought regarding the fraudulent inducement is the present action for money damages. Had appellants filed an action seeking recission while failing to also plead, alternatively, an action for damages, appellee’s position might prevail. However, that is not what transpired and that is why appellee’s argument must fail now.

      . I cannot say I am in total agreement with appellants’ characterization of the measure of those damages. Appellants attempt to argue that the measure of those damages "is what plaintiffs would have recovered through a wrongful death and survival action, not limited to the limits of the respective liability policies, but could include any monies recoverable from both defendants individually as well as any underinsured coverage that would have been available had that coverage been brought into play’ by the amount of the wrongful death and survival verdict.” Appellants’ brief at p. 10. The proper measure of damages, it seems to me, would be the sum that appellants would have recovered in the absence of the fraud minus the sum actually recovered. Although the exact amount this might be must be decided by the fact finder, it appears dubious to assert that one who appeared willing to settle for the incorrectly perceived lower policy limits would have been unwilling to settle for the correct and higher sum of the actual policy limits.


author: DEL SOLE, Judge:

text:
    594 A.2d 766
    Margaret C. BRINDLE, Carla Douglass, Michelle Trimbur, Deborah Kojsza, Gregory Glinka, and Deborah Hunt, Appellants, v. WEST ALLEGHENY HOSPITAL and Greater Canonsburg Health Systems, Appellees.
    Superior Court of Pennsylvania.
    Argued April 16, 1991.
    Decided July 19, 1991.

      Richard G. Johnson, Pittsburgh, for appellants.
    David R. Johnson, Pittsburgh, for appellees.
    Before McEWEN, DEL SOLE and FORD ELLIOTT, JJ.
   DEL SOLE, Judge:

This appeal has been taken from a Judgment of Non-suit by six nurses formerly employed at West Allegheny Hospital. They initiated an action against West Allegheny Hospital and its owner, Greater Canonsburg Health Systems, seeking damages for breach of their employment contracts and for fraud and misrepresentation. The court subsequently granted defendants/Appellees Summary Judgment on number of counts and only Count V, the claim based on fraud and misrepresentation, remained to be heard at trial. After Appellants presented their evidence and rested their case, the trial judge granted a defense motion for a Compulsory Non-suit. Appellants’ motion to have the Non-suit removed was denied and this appeal followed.

On appeal we are asked to consider whether the trial court erred in determining that there was insufficient evidence of fraud to take the case to the jury. This court upon review of an order denying a motion to remove a compulsory non-suit will reverse that order where an abuse of discretion or error of law is found. Kuriger v. Cramer, 345 Pa.Super. 595, 498 A.2d 1331 (1985). In determining whether the trial court properly concluded that the plaintiff failed to establish a cause of action, an appellate court must view the evidence in the light most favorable to the plaintiff, giving the plaintiff the benefit of all reasonable inferences of fact arising from that evidence and resolving any conflict in the evidence in favor of the plaintiff. Coatesville Contractors v. Borough of Ridley, 509 Pa. 553, 506 A.2d 862 (1986).

The courts have traditionally held that in order to state a cause of action for fraud, the plaintiff must establish five elements: (1) a misrepresentation; (2) a fraudulent utterance thereof; (3) an intention by the maker that the recipient will thereby be induced to act; (4) justifiable reliance by the recipient upon the misrepresentation; and (5) damage to the recipient as the proximate result. Woodward v. Dietrich, 378 Pa.Super. 111, 548 A.2d 301 (1988). The second element requiring a “fraudulent utterance” has been found to refer to the intent or scienter required for an utterance to be considered fraudulent. “This intent has been characterized as knowing or reckless, and applies when the maker of the utterance knows or believes that the matter is not as he or she represents it to be, does not have the confidence in the accuracy of the representation that is stated or implied, or knows that there is not the basis for the representation that is stated or implied.” B.O. v. C.O., 404 Pa.Super. 127, 132 fn. 1, 590 A.2d 313 (1991). Because we conclude that Appellants were unable to prove scienter on Appellees’ part, we need not consider the remaining elements of the test to affirm the trial court’s action.

At trial Appellants attempted to demonstrate that they were induced to remain at their jobs at West Allegheny Hospital by hospital management who assured them that the hospital was not for sale and that it would not close. Appellants maintain that these statements were fraudulently made and that they were harmed when they lost their jobs as result of the hospital’s eventual closure a few months after the statements were made. A critical component of Appellants’ case was proof the the hospital intentionally and knowingly misrepresented the truth when the employees were told that the hospital would not close and that the employees jobs were secure. Appellants claim this element of the test was met by three distinct pieces of evidence.

As proof that management personnel knew that their representations were false, Appellants point to testimony that the hospital’s vice president announced his resignation just 6 weeks after he presided over a meeting assuring personnel that their jobs would remain safe. Appellants argue that the fact that he then obtained employment with Allegheny General Hospital, the hospital which purchased West Allegheny, demonstrates that knowing misrepresentations were made. Absent from Appellants evidence, however, is any proof that the vice president’s departure was prompted by the eventual sale. Any conclusion that his resignation and new employment made his earlier statements intentional misrepresentations would be mere speculation, something upon which a jury cannot rest its verdict.

Appellants also point to the comments of a nursing manager to establish scienter. Appellant Douglas testified at trial to a conversation she had with this nursing manager.

She had joked at one time how you will probably be working for Allegheny General again, because I had been employed at Allegheny General before.
N.T. 11/15-17/89 at 172.

And on cross examination the following exchange occurred:

Q And on September 26 you talked to Diane Karcz about this situation again, and she offered you her personnel opinion at that time that Allegheny General would buy the hospital and make it into a psychiatric unit? A Yes, sir.
N.T. 11/15-17/89 at 182.

We are unable to conclude from this testimony that hospital management knew that the hospital would close and intentionally misrepresented this fact to its employees. The plaintiff witness here merely stated that á nurse manager “joked” about the future and that she offered her “personal opinion” that Allegheny General would buy the hospital. There was no proof offered that this nurse manager knew these facts to be true and she was not called as a witness to so testify.

Appellants strongest evidence on this point came from the testimony of the hospital’s attorney. Appellants offered in evidence deposition testimony taken of A. Patricia Diulus. In this very brief testimony she responded to the following:

Question: Did you have occasion to participate in negotiations leading to the sale of West Allegheny Hospital as you described earlier as an asset transaction that occurred last week?
Answer: I had some involvement, yes.
Question: What was your involvement?
Answer: I was involved as in-house legal counsel for Greater Canonsburg Health System.
Question: As part of your role as in-house legal counsel, what did you do?
Answer: I was involved in the discussions with management and administration of the Greater Canonsburg Health System and outside parties to the negotiations. Question: When did the negotiations for the sale initiate? Answer: Actual negotiations for the sale were initiated sometime in the summer of 1986.
N.T. 11/15-17/89 at 259.

When questioned further the witness was unable to state with any more particularity the date when negotiations began. Appellants suggest that since this witness’ testimony establishes that negotiations were underway in the summer of 1986, the same time they were being assured that their jobs were safe and the hospital would not close, they have satisfied their requirement to prove that the hospital made knowingly false statements calculated to deceive them. We do not concur that this testimony is sufficient to establish such proof.

The witness first referred to the “sale” as an “asset transaction” a term which can be used to describe the “joint venture” which hospital personnel repeatedly informed the staff was a viable option to help the hospital and the employees. Further, although the witness indicates that negotiations were initiated in the summer, there is no indication from this testimony that hospital management mislead hospital personnel about their job security. A sale of the hospital would not necessarily have resulted in a closing of the hospital and the layoff of its staff. Appellants’ harm would have occurred, if proven, from the loss of their jobs which was a result of the hospital’s closure, not its sale. Appellants offered no proof that the hospital knowingly misinformed them that the hospital would remain open.

Since Appellants failed to offer any proof that would enable a jury to conclude that as of the summer of 1986 there had been a decision made to close the hospital and that, with such knowledge, hospital management intentionally made false representations of this fact, the trial properly court entered a non-suit in this case. Because we reach this conclusion, it is unnecessary for us to examine Appellants’ claim that certain special damages are compensable.

Order affirmed.


author: ROWLEY, President Judge.

text:
    594 A.2d 769
    Grover BATTLE, Appellant, v. PHILADELPHIA HOUSING AUTHORITY.
    Superior Court of Pennsylvania.
    Argued May 7, 1991.
    Decided Aug. 12, 1991.

      Andrew B. Shaw, Philadelphia, for appellant.
    Esther Hornik, Bala Cynwyd, for appellee.
    Before ROWLEY, President Judge, and CIRILLO and JOHNSON, JJ.
   ROWLEY, President Judge.

May appellant Grover Battle maintain an action against appellee Philadelphia Housing Authority (“the Authority”) to recover for injuries allegedly suffered when he was attacked and beaten in the lobby of his residence, the “01” building of the Authority-owned Raymond Rosen Projects, while in the presence of security guards, employed by the Authority, who failed to come to his aid? The trial court, which granted the Authority’s motion for judgment on the pleadings in the order of September 6, 1990, from which this timely appeal is taken, held that he could not, as the Authority is a “local agency” and therefore immune from liability for negligence except in eight situations, specified in 42 Pa.C.S. § 8542(b), none of which the trial court considered applicable to appellant’s situation. Appellant contends that the Authority is not entitled to immunity as a local agency and is liable under Section 323 of the Restatement (Second) of Torts for the negligent performance of an undertaking to render services (i.e., security).

Although decisions concerning the immunity of agencies such as the PHA are more appropriately made by the Commonwealth Court, recent decisions of that Court and of our Supreme Court resolve any uncertainty as to the outcome of the appeal before us. As we are therefore able, by retaining and deciding the present case, to further the cause of judicial economy without impairing the cause of judicial consistency, we will do so.

Having evaluated appellant’s claims in light of the standard of review set forth in Gallo v. J.C. Penney Casualty Insurance Company, 328 Pa.Super. 267, 476 A.2d 1322, 1324 (1984), we reach the same result as did the trial court, but for a different reason. In Crosby v. Kotch, 135 Pa.Cmwlth. 470, 580 A.2d 1191 (1990), the Commonwealth Court, citing the opinion of our Supreme Court in Marshall v. Port Authority of Allegheny County, 524 Pa. 1, 568 A.2d 931 (1990), held that the Luzerne County Housing Authority was not a “local agency” entitled to governmental immunity but was instead a “Commonwealth agency” entitled to sovereign immunity. The Court based its decision on the language of Section 10 of the Housing Authorities Law, Act of May 28, 1937, P.L. 955, as amended, 35 P.S. § 1550 (“An Authority shall constitute a public body ... exercising public powers of the Commonwealth as an agency thereof ...”). Appellant acknowledges that the PHA “was created and is covered by the Housing Authority [sic] Law ...” (Brief for Appellant at 8). Therefore, the Authority is a Commonwealth agency and, as such, may be held liable for negligence only if the negligent act falls within one of the nine categories, specified in 42 Pa.C.S. § 8522(b), for which sovereign immunity has been waived.

Appellant contends that § 8522(b) “is not an inclusive list of all situations under which a Commonwealth Party waives sovereign immunity” (Brief for Appellant at 10; emphasis in original). This statement, for which appellant cites no authority, is expressly contradicted by the language of § 8522(a), which states that sovereign immunity is waived “in the instances set forth in subsection (b) only ...” (emphasis added).

Appellant also maintains that if § 8522(b) is in fact an exhaustive list of exceptions to sovereign immunity, his cause of action nevertheless falls within one of the following two exceptions:

(b) Acts which may impose liability.—The following acts by a Commonwealth party may result in the imposition of liability on the Commonwealth and the defense of sovereign immunity shall not be raised to claims for damages caused by:
(3) Care, custody or control of personal property.—The care, custody or control of personal property in the possession or control of Commonwealth parties, including Commonwealth-owned personal property and property of persons held by a Commonwealth agency [except for activities involving radioactive equipment, etc.].
(4) Commonwealth real estate, highways and sidewalks.—A dangerous condition of Commonwealth agency real estate and sidewalks, including Commonwealth-owned real property, leaseholds in the possession of a Commonwealth agency and Commonwealth-owned real property leased by a Commonwealth agency to private persons, and highways under the jurisdiction of a Commonwealth agency, except conditions described in paragraph (5) [Potholes and other dangerous conditions].

42 Pa.C.S. § 8522(b). Appellant cites no case law indicating that exception (8) is applicable to his case, and we perceive no connection between “personal property” and appellant’s injuries.

After reviewing the applicable case law and noting the Supreme Court’s insistence that the real property exception be strictly and narrowly construed, Marshall v. Port Authority, 524 Pa. at 7, 568 A.2d at 935, we conclude that appellant's reliance upon this exception is also unwarranted. In support of his claim that his own action falls within the real property exception, appellant cites Mistecka v. Commonwealth, 46 Pa.Cmwlth. 267, 408 A.2d 159 (1979), in which the Commonwealth Court held that the real property exception applied to a personal injury action brought by a plaintiff who was injured when unknown assailants threw a large rock from a local highway bridge onto plaintiff’s car. as she was traveling on a state highway beneath the bridge. Appellant fails to note, however, that in Snyder v. Harmon, 522 Pa. 424, 562 A.2d 307 (1989), the Supreme Court disavowed the rationale of Mistecka, id., 522 Pa. at 435 n. 7, 562 A.2d at 312 n. 7, and held that “sovereign immunity is waived pursuant to 42 Pa.C.S. § 8522(b)(4), where it is alleged that the artificial condition or defect of the land itself causes an injury to occur,” id., 522 Pa. at 434-35, 562 A.2d at 312 (emphasis added).

Recent opinions of the Commonwealth Court apply the holding of Snyder v. Harmon to cases that are factually similar to the case at bar. In Chambers v. Southeastern Pennsylvania Transportation Authority, 128 Pa.Cmwlth. 368, 563 A.2d 603 (1989), appellant, who was injured in a fight with several rowdy youths who had harassed him on a SEPTA subway, argued that SEPTA, a Commonwealth party for immunity purposes, had negligently failed to provide adequate lighting and security and to warn passengers of unsafe conditions. The Commonwealth Court held that the real property exception to sovereign immunity did not apply, as it was an unknown third party, rather than any defect in the property itself, which caused appellant’s injury. Similarly, in Alexander v. Com., Department of Public Welfare, 137 Pa.Cmwlth. 342, 586 A.2d 475 (1991), appellant, a patient in a DPW-operated facility who was abducted from the facility and then raped, argued on appeal that the institution’s allegedly negligent security measures had facilitated the criminal act. The Commonwealth Court held, however, that because appellant’s injuries were not caused by the physical characteristics of the facility but by an intervening factor (i.e., the assailant), the real estate exception to sovereign immunity was not applicable.

In the case before us, appellant does not allege that his injury resulted from a defect in the building itself, but rather that it resulted from the failure of the Authority’s security staff to prevent a third person’s attack upon him. Appellant’s claim to a waiver of sovereign immunity is legally indistinguishable from the cases just cited. Accordingly, we affirm the order of September 6, 1990, granting judgment on the pleadings to the Philadelphia Housing Authority.

Order affirmed.