author: POPOVICH, Judge.

text:
    605 A.2d 390
    John FAILOR and Kathy Failor v. WESTEX, INC.; David McKee Corporation, Pendergast Safety Equipment Company, Lamco, Carey Machinery and Supply Company, Red Kap Industries, Star Glove and Leather Company and Star Glove Company, Inc., Steel Grip Safety Apparel Company, Inc., Husband Industries, Work Wear Corporation, Inc., Stedman Corporation, Rubin Brothers, Ronco Textile Products, Inc., Sager Corporation, Wagco and Troy Laundry, v. The HENLEY GROUP, INC., Pullman, Inc., Swindell Dressler Energy Supply Co., the M.W. Kellogg Co., Allied Signal, Inc., Whellabrator Technologies, Inc. and Dresser Industries, Inc. Appeal of STEEL GRIP SAFETY APPAREL COMPANY, INC., Greffen Wheel.
    Superior Court of Pennsylvania.
    Argued Jan. 15, 1992.
    Filed March 23, 1992.

      R. Bruce Morrison, Philadelphia, for appellant.
    Daniel J. Gallagher, Harrisburg, for appellee Pendergast Safety.
    Terance P. Kennedy, Philadelphia, for appellees Stedman Corp., Rubin Bros. & Ronco Textile.
    Kurt E. Kramer, Philadelphia, for appellee Sager Corp.

      Walter L. McDonough, Philadelphia, for appellee Wagco.
    Eunice Trevor, Philadelphia, for appellees Failor.
    Before McEWEN, POPOVICH and JOHNSON, JJ.
   POPOVICH, Judge.

This is an appeal from the order of the Court of Common Pleas of Cumberland County entered on April 25, 1991, granting plaintiffs motion for discontinuance with respect to nine defendants without prejudice to the remaining defendants to join the dismissed parties to this action, at a later date, should further discovery reveal that joinder is justified. Appellant, Steel Grip Safety Apparel Company, Inc., contends the lower court erred in dismissing the nine defendants from this product liability case because the dismissal was based on self-serving testimonial affidavits, the court had previously restricted discovery and the dismissal was prejudicial to the remaining defendants. However, finding no error in the lower court’s decision, we affirm the order dismissing those nine defendants and remand this case for trial.

The record reveals that plaintiff John Failor allegedly sustained severe burn injuries when a fireball blew out of the electric arc furnace he was operating at his place of employment, Frog Switch and Manufacturing. At the time of his injuries, Failor was wearing flame resistant clothing provided to him by his employer. On May 29, 1987, plaintiffs instituted this product liability action by writ of summons. On February 24, 1988, plaintiffs deposed a representative of Westex, Inc., the alleged manufacturer of the fire resistant fabric used to make the clothing worn by John Failor. Westex identified various purchasers and distributors of their flame resistant fabric during the relevant time period. In their complaint filed on March 30, 1988, plaintiffs named Westex as a defendant. Plaintiffs also named an additional fourteen defendants, including appellant Steel Grip Safely Apparel, all of which were allegedly manufacturers and/or distributors of flame resistant clothing made from the Westex fabric and sold to Failor’s employer.

The defendants filed their responsive pleadings, including cross-claims against each other pursuant to Pa.R.C.P. 2252. Following some discovery, including the deposition of Frog Switch’s purchasing agent, plaintiffs, on January 23, 1990, moved to dismiss those defendants which their investigation revealed neither manufactured nor distributed the fire resistant pants worn by John Failor. A hearing on plaintiffs’ petition was continued pending additional discovery, and, on October 10, 1990, the lower court convened a conference to discuss outstanding discovery issues, plaintiffs’ discontinuance motions and several motions for summary judgment. Following that meeting, the lower court deferred decision on the dismissal petition of plaintiffs and the motions for summary judgment, pending additional limited discovery. By order dated November 13, 1990, discovery concerning the flame resistant clothing was to proceed as follows:

1. Any party, including defendant Steel Grip, may conduct a record deposition of Frog, Switch and Manufacturing Co. on the issue of its purchase of flame resistant trousers between 1983 and 1986.
2. Said parties may seek an additional record deposition with respect to Lamco, Carey Machinery and Supply Co., and Alpenco on the issue of their purchase and sale of the type of clothing involved in plaintiff’s accident.
3. Said parties may serve a request for production of documents and interrogatories directed to defendants on the issue of whether they have sold the type of clothing involved in plaintiff’s accident and if so when and to whom they made the sale.
4. Said parties may thereafter seek a single deposition of the appropriate individual or individuals from each defendant who answers the aforementioned interrogatories and/or request for production of documents affirmatively that they did engage in the sale or distribution of the type of clothes worn by plaintiff and/or sold the type of clothes worn by plaintiff to plaintiffs employer or to any supplier dealing with plaintiffs employer.

Pursuant to the order, discovery was to be completed within ninety days. During the following ninety days, appellant did not notice, schedule or take any depositions under the terms of the November 13, 1990, discovery order.

In March of 1991, plaintiffs filed an Amended Petition to Dismiss Certain Defendants (the nine defendants listed above). The petition was based on the testimonial affidavits provided by the nine defendants which denied any connection to the flame resistance clothing worn by Pailor at the time of the accident. Appellant opposed the petition arguing dismissal of the defendants based on their self-serving testimonial affidavits would violate the rule set forth in Nanty-Glo v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932). The lower court found that the Nanty-Glo rule was inapplicable to the facts before it and granted the petition to discontinue without prejudice to the remaining defendant to join the dismissed defendants should further discovery uncover evidence warranting joinder.

Rule 229(a) of the Pennsylvania Rules of Civil Procedure provides that discontinuance is the “exclusive method of voluntary termination of an action, in whole or in part, by the plaintiff before commencement of trial.” A discontinuance may be entered as to less than all defendants, but not “without leave of court after notice to all parties.” Pa. R.C.P. 229(b). However, “[t]he court ... may strike off a discontinuance in order to protect the rights of any party from unreasonable inconvenience, vexation, harassment, expense, or prejudice.” Pa.R.C.P. 229(c). “Decisions as to the granting of such requests for discontinuances rest in the discretion of the trial judge and can be reviewed only as to the abuse of that discretion.” Martinelli v. Mulloy, 223 Pa.Super. 130, 133, 299 A.2d 19, 20 (1972), citing Brown v. T.W. Phillips Gas and Oil Co., 365 Pa. 155, 74 A.2d 105 (1950) and Pesta v. Barron, 185 Pa.Super. 323, 138 A.2d 690 (1958); See also Star v. Sewickley Valley Hospital, 253 Pa.Super. 554, 385 A.2d 478 (1978).

Appellant essentially argues that the lower court abused its discretion in granting the discontinuance on three grounds. First, appellant argues the lower court was prohibited by the Nanty-Glo rule from dismissing the nine defendants based on their “self-serving” affidavits. Second, appellant contends the lower court prematurely dismissed the defendants because the court’s limitation on discovery precluded it from obtaining sufficient information from which it could determine whether the dismissed defendants were actually part of the manufacturing or distribution chain of the flame resistant clothing used by Failor. And third, appellant alleges it was prejudiced by the discontinuances. However, we find these arguments unpersuasive.

First, the Nanty-Glo rule is inapplicable to this case. We quote with approval from the opinion below, authored by the Honorable Kevin A. Hess:

Nanty-Glo, supra, and the cases which have followed provide that testimonial affidavits of the moving party or his witness, not documentary in nature, even if uncontradicted, will not afford a sufficient basis for the entry of summary judgment, since the credibility of the testimony is still a matter for the jury. Penn Center House, Inc. v. Hoffman, 520 Pa. 171, 553 A.2d 900 (1989) citing Goodrich-Amram.2d, Section 1035(b):4. The objecting defendants would argue that this rule applies equally to plaintiff's motions to discontinue. Clearly, this is not the case. At the risk of oversimplification, Nanty-Glo prohibits entry of judgment favorable to the moving party based on that party’s own affidavits. Here the plaintiff proposes a resolution favorable to its opponent. Nanty-Glo recognizes the potential for duplicity where pre-trial disposition of a case depends upon affidavits offered by the moving party. This request under Rule 229, on the other hand, is one which the plaintiffs have simply agreed with certain of the defendants that there is no evidence which implicates them. The dismissal of these defendants, at this stage, has everything to commend it as it will avoid substantial additional expense to parties as to whom there is no evidence of liability.

Trial Court Opinion at p. 2.

Second, we turn to appellant’s allegation that the discontinuances were premature because discovery was limited by the court below. This argument clearly must fail. By the time plaintiffs original Petition for Dismissal of Certain Defendants was filed on January 23, 1990, the case had been pending for approximately one year and ten months, and when the lower court entered the order limiting discovery on November 13, 1990, over two years and seven months had transpired without limitation on discovery. Resolution of the discontinuance petition was delayed on at least two occasions to permit additional discovery, and after entry of the lower court’s order limiting discovery, appellants failed to notice, schedule or take any depositions. During the entire discovery period (almost three years), appellant failed to uncover any evidence directly linking the dismissed defendants to the flame resistant pants in question. In fact, appellant admits: “Again, the point is not that Steel grip has possession of any ‘smoking gun’ pointed at any of the dismissed defendants, but rather that dismissal based solely on the [“self-serving”] affidavits] was premature.” Appellant’s Brief, p. 16.

After three years of litigation, we find that appellant was permitted more than adequate time within which to uncover facts tying the dismissed defendants to the fire resistant pants. We will not find the trial court’s decision to dismiss certain defendants to be an abuse of its discretion, especially in light of the fact that appellant may join any of the dismissed defendants should later discovered facts warrant it. Cf. Pa.R.C.P. 4012; Stenger v. Lehigh Valley Hospital, 382 Pa.Super. 75, 554 A.2d 954 (1989) (trial court is in the best position to weigh fairly competing needs and interests of parties affected by discovery; unique character of discovery process requires that trial court have substantial latitude to fashion protective orders).

Finally, appellant, citing Dash v. Wilap Corp., 343 Pa.Super. 584, 495 A.2d 950 (1985) and Martinelli, supra, alleges it is prejudiced by the dismissal of those defendants against which it has filed a cross-claim. In Dash, supra, a crime victim sued her adjoining landowner on the grounds that the adjoining property which had not been maintained for four years, was used by the criminal to conceal his whereabouts before and after the crime. The adjoining landowner joined the perpetrator of the crime as an additional defendant, but later sought to discontinue its claim against the perpetrator. The lower court granted the defendant’s petition to discontinue and denied plaintiff’s request for leave to amend her complaint to include a direct claim against the perpetrator. On appeal, we affirmed the discontinuance order, but reversed the lower court’s denial of plaintiff’s request for leave to amend her complaint.

Instantly, the lower court expressly dismissed the defendants without prejudice to appellant’s right to join the dismissed parties as additional defendants should sufficient facts be averred. Thus, the lower court did not violate the rule of Dash, supra. This is readily apparent when we consider the case of Martinelli, supra. In Martinelli, supra, the lower court granted plaintiff’s petition to discontinue against one of two defendants and denied defendant’s request to join that dismissed party as an additional defendant pursuant to Pa.R.C.P. 2252. We ruled that it was error for the lower court to deny defendant’s motion to join without permitting counsel an opportunity to allege facts sufficient to support his claim against the additional defendant. Martinelli, 223 Pa.Super. at 136, 299 A.2d at 21-22; see also Pa.R.C.P. 2252; Rau v. Manko, 341 Pa. 17, 17 A.2d 422 (1941). Instantly, the lower court has expressly permitted appellant an opportunity to join the dismissed parties as additional defendants, provided appellant is able to allege sufficient facts to support its claim. Thus, the lower court complied with Martinelli, supra, and we find that the lower court did not err in discontinuing the cases against those nine defendants since appellant has not averred any facts which implicate those dismissed defendants in the manufacture or distribution of the flame resistant clothing worn by John Failor.

Appellant also alleges it is unduly prejudiced by the lower court’s dismissal since it will unnecessarily increase the burden and costs of discovery with respect to those nine defendants since eight of the nine are not Pennsylvania residents. However, appellant has not explained why it failed to depose any of these dismissed defendants during the almost three years this case has been pending, and we will not now penalize plaintiffs and those dismissed defendants for appellant’s failure to proceed with discovery in an expeditious manner.

In sum, we affirm the order of the court below which dismissed the actions against those nine defendants. The current status of the record does not warrant continuance of those cases. However, the lower court wisely discontinued the action without prejudice to appellant to join those dismissed defendants should further discovery reveal evidence of their participation in the manufacture or distribution of the flame resistant clothing worn by John Failor at the time of his injury.

Order affirmed. Case remanded for trial.

McEWEN, J., concurs in the result.

      . Those nine defendants dismissed from the suit are Pendergast Safety Equipment, Husband Industries, Work Wear Corporation, Stedman Corporation, Sager Corporation, Wago Products, Ronco Textile Products, Inc., Rubin Brothers, Inc., and Red Kap Industries.

      . In addition to Westex and the fourteen defendants which manufactured or distributed flame resistant clothing made from Westex fabric, plaintiffs named defendant David McKee Corporation as designer, manufacturer and seller of the electric arc furnace and defendant Troy Laundry as the commercial laundry which regularly cleaned and treated the work clothes.


source: Caselaw Access Project

author: OLSZEWSKI, Judge.

license: Public Domain

text:
    605 A.2d 395
    Patricia WU, Appellant, v. Michael SPENCE, M.D., and Hahnemann University Hospital, Appellees.
    Superior Court of Pennsylvania.
    Argued Jan. 16, 1992.
    Filed March 24, 1992.
    Henri Marcel, Broomall, for appellant.

      James M. Penny, Jr., Philadelphia, for appellees.
    Before ROWLEY, President Judge, and OLSZEWSKI, and MONTEMURO, JJ.
   OLSZEWSKI, Judge.

This is an appeal from the order of the Court of Common Pleas of Philadelphia County denying appellant’s motions to remove a compulsory nonsuit and for a new trial. Appellant brought this medical malpractice action based upon appellee’s failure to inform her of the risks of the drug treatment prescribed. The trial court granted the nonsuit upon a finding that no action will lie based upon a lack of informed consent of the risks involved with a therapeutic drug treatment. Since we find no error, we affirm the decision of the trial court. A discussion of the case follows.

Appellant, Patricia Wu, was under the care of appellee, Michael Spence, M.D., for the treatment of trichomonas. Appellant was admitted to the hospital and treated intravenously with the antibiotic flagyl. Appellant’s theory of recovery was that appellee failed to advise her of the potential risk of peripheral neuropathy as a result of the flagyl treatment. No evidence was to be presented on a negligence or medical malpractice theory. The case was solely based upon a lack of informed consent. The case was submitted to the court for a determination of the legal issues in the case. The court determined initially that no cause of action would lie based upon a lack of informed consent to the risks associated with the administration of a therapeutic drug. On agreement of parties, the court received the statement of plaintiff’s counsel regarding the evidence to be presented at trial and the depositions of appellant and her medical expert. At this point appellee moved for a nonsuit, which the court granted. Appellant filed motions to remove the nonsuit and for a new trial, which were denied. From the denial of these motions, appellant filed this timely appeal.

The standard of review on the appeal of a denial of a motion to remove a nonsuit is well settled. The plaintiff must be allowed the benefit of all favorable evidence and reasonable inferences arising therefrom, and any conflicts in the evidence must be resolved in favor of plaintiff. Coatesville Contractors v. Borough of Ridley, 509 Pa. 553, 558-60, 506 A.2d 862, 865 (1986). Further, “[i]t has been long settled that a compulsory nonsuit can only be granted in cases where it is clear that a cause of action has not been established.” Id. “However where it is clear a cause of action has not been established, a compulsory nonsuit is proper.” Toth v. Economy Office Forms Corp., 391 Pa.Super. 383, 386-88, 571 A.2d 420, 422 (1990). “We must, therefore, review the evidence to determine whether the order entering judgment of compulsory nonsuit was proper.” Coatesville, 509 Pa. at 559-60, 506 A.2d at 865. With this as our standard of review, we have reviewed the record in this matter and find that it is clear no cause of action was established, and, therefore, the trial court properly granted the nonsuit.

Appellant has argued that the doctrine of informed consent should apply to the intravenous administration of a therapeutic drug. In this regard appellant has argued that the court should consider the touching involved with thu intravenous administration of the flagyl sufficient to form the basis of the battery required for informed consent. In the alternative appellant has argued that we should adopt a negligence standard for informed consent, as opposed to the battery standard which has been the traditional basis of informed consent in this Commonwealth. Finding no merit to appellant’s arguments, we affirm the decision of the trial court.

Appellant’s initial argument is that the touching involved with the intravenous administration of the drug was a sufficient touching to find a battery to support a cause of action under informed consent. We do not agree. In the case before the Court, appellant is clearly claiming damages caused by the action of the drug. Appellant is not claiming that she was harmed by the insertion of the needle. The method of administration of the drug is irrelevant to appellant’s cause of action.

When it is the need for an injection which the patient disputes, it is reasonable to impose a duty of informed consent. For example, there are some drugs which may be administered either orally or by injection; the decision to inject such a drug should be made only with the patient’s informed consent. On the other hand, when it is the substance administered, not the method of administration, which is challenged I agree with Judge Hoffman that it is absurd to invoke the duty of informed consent simply because the physician or nurse must touch the patient to inject the drug.

Karibjanian v. Thomas Jefferson University Hospital, 717 F.Supp. 1081, 1084 (1989) (discussing the dissenting opinion of Hoffman, J., in Malloy v. Shanahan, 280 Pa.Super. 440, 421 A.2d 803 (1980)). Appellant does not claim a lack of consent in regard to the method of administration of the drug. Appellant claims a lack of consent only in regard to the potential for peripheral neuropathy as a side effect of the flagyl. Further, appellant does not claim that the intravenous administration of the drug caused or increased this side effect. In appellant’s expert’s video-taped trial deposition, he states that the effect would not differ greatly whether the administration was oral or intravenous, because flagyl is very well absorbed orally. We find appellant’s first argument unconvincing and without merit. Further, for the reasons discussed below, we find that to expand informed consent to facts where a technical battery has not occurred would completely reverse a decision of the Pennsylvania Supreme Court.

Appellant’s second argument on appeal is that this Court should adopt a negligence standard for informed consent. Traditionally informed consent in Pennsylvania has been grounded in battery. Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663 (1966). The basis of an action for a lack of informed consent is that when a physician touches a patient a technical battery occurs, unless that touching is done with the patient’s consent. Id. An emergency situation is, of course, an exception. The caselaw has consistently refused to extend informed consent to the administration of therapeutic drugs. Boyer v. Smith, 345 Pa.Super. 66, 497 A.2d 646 (1985); Malloy v. Shanahan, 280 Pa.Super. 440, 421 A.2d 803 (1980). See also Keech v. Mead Johnson and Company, 398 Pa.Super. 329, 580 A.2d 1374 (1990). This Court has consistently limited informed consent to a battery theory. We will not expand informed consent here.

In Boyer, the Court held that the doctrine of informed consent should be limited to those cases involving surgical or operative procedures. Boyer, 345 Pa.Superior Ct. at 71-73, 497 A.2d at 649. The Court based this determination on the fact that the Pennsylvania Supreme Court, in Gray v. Grunnagle, grounded the doctrine of informed consent “upon the legal theory that the performance of a medical procedure without a patient’s informed consent constitutes a technical assault or battery.” Id. The Court in Boyer felt that to expand the doctrine to the administration of therapeutic drugs would totally obliterate the standard set forth in Gray, and, therefore, felt bound by the decision of our Supreme Court in Gray. See Levinson v. Souser, 384 Pa.Super. 132, 557 A.2d 1081 (1989). We must agree with the Court in Boyer. Expanding informed consent to include therapeutic drug treatment would completely obliterate the standard set forth by the Supreme Court in Gray. We further believe that the adoption of a negligence standard would also completely obliterate the standard set forth in Gray. We feel duty bound to follow the law as established by our Supreme Court.

It may be time for the Supreme Court to reconsider its decision in Gray. The greater use of various drug treatments has led to a situation where the risk associated with adverse side effects may be considerable. Further, there is the possibility that in light of adverse side effects, a patient may wish to chose an alternative treatment. A patient’s decision to undergo drug therapy should be no less informed than a decision to undergo surgery. The law should require that a physician provide his patient with all available information and options. We find the dissenting opinion of Judge Hoffman in Malloy v. Shanahan persuasive in regard to adopting a negligence standard to eliminate any present confusion in the law. Under the present development of the law, whether or not to make such a change in the law is not within the province of this Court.

Since clearly no cause of action was established, the nonsuit was proper.

Order affirmed.

MONTEMURO, J., concurs in the result.

      . Trichomonas is an infection of the female reproductive tract.


author: BECK, Judge: JOHNSON, Judge,

text:
    605 A.2d 397
    Patricia A. CAVALIERE, an Individual; Lettie M. Gustis, an Individual; Kristie L. Gustis, an Individual, Appellants, v. DUFF’S BUSINESS INSTITUTE, a Corporation and Phillips Colleges, Inc., a Corporation.
    Superior Court of Pennsylvania.
    Submitted Oct. 15, 1991.
    Filed March 24, 1992.

      Donald H. Presutti, Pittsburgh, for appellants.
    Amy Acheson, Pittsburgh, for appellees.

      Before BECK, JOHNSON and HOFFMAN, JJ.
   BECK, Judge:

The issue is whether a complaint that pleads generally that students at a private court reporting school were given inadequate and improper instruction, in breach of an alleged implied contract for a quality education, states a cause of action for breach of contract.

The trial court held that the complaint failed to state a cause of action and dismissed it. Upon review of the record, the briefs submitted by the parties and all pertinent authorities, we find that the trial court did not err. Therefore, we affirm.

The relevant facts and procedural history are as follows. Appellants Patricia Cavaliere, Lettie Gustis, and Kristie Gustis enrolled in a two year court reporting program offered by appellees, Duffs Business Institute and Phillips Colleges, Inc. (hereinafter collectively referred to as “the Institute”). Appellants paid tuition for the first and second quarters of the program; they also bought the necessary books and materials. The course of instruction offered by the Institute was set forth in its student handbook and catalog. Appellants aver that, through the Institute’s agents, handbook and catalog, the Institute made the following representations:

1. that the Institute’s court reporting program was approved by the National Shorthand Reporters Association (NSRA);
2. that a graduate of the Institute could become NSRA certified and/or enjoy a career as a court reporter;
3. that the program was qualified as an approved educational program by the Pennsylvania Higher Education Assistance Program (PHEA); and
4. that the Institute provided a quality education.

Although appellants contend that some of the representations made by the Institute were contained in the student handbook and catalog, a copy of those documents were not attached to the complaint.

Appellants claim that during the first quarter of the program, the Institute failed to provide “adequate, proper and quality” instruction and proper instructional tools. Appellants further allege that because of this, they were unable to advance to the second quarter courses and were required to repeat the first quarter courses. When appellants repeated these courses, they had a new instructor. However, this instructor quit a few weeks into the course. Appellants contend that the replacement instructor was not qualified adequately to instruct the class. Thus, on February 20, 1990, appellants withdrew from the program.

Appellants’ complaint contains numerous allegations based on these facts. They are presented in a scattershot manner and consist of claims that the Institute breached its agreement to provide a quality education, adequate instruction and qualified instructors, misrepresented that it would provide a quality education, and breached NSRA and PHEA standards. The complaint does not state what the precise deficiencies in the program were, what qualifications the instructors lacked, or exactly what the standards of the NSRA and PHEA were and how they were breached. The complaint also generally alleges that the Institute violated the Unfair Trade Practices and Consumer Protection Law. The damages sought included a refund of tuition, lost wages, parking fees and mileage, costs of equipment, lost interest on investments and reimbursement of government tuition loans.

The Institute filed preliminary objections in the nature of a demurrer and a motion to strike. They argued that appellants had failed to allege how the alleged representations by the Institute were false, what the actual agreement between the parties was and how it was breached. Appellees noted that appellants had not claimed that the representations about the Institute’s approval by the NSRA or PHEA were false. Lastly, they objected to the general lack of specificity of the complaint and appellants’ failure to attach a copy of the student handbook or NSRA and PHEA standards to the complaint.

In response, appellants attempted to explain and clarify their pleading, although they did not seek to amend their complaint and, therefore, added nothing to the specificity of the factual allegations. They contended that their complaint pleaded only one cause of action, sounding in breach of contract, that the alleged contract was not based on a writing so that no documents needed to be attached to the complaint, and that the alleged contract was a “verbal implied agreement”. Appellants argued that the student handbook was referred to “simply to illustrate the Defendants implied claim that they provide adequate, proper court reporting education.”

On November 6, 1990, the trial court entered an order sustaining the appellees’ preliminary objections in the nature of a demurrer and dismissing the complaint. The trial court relied on its own decision in Joseph N v. Shadyside Academy, 132 P.L.J. 569 (1984), wherein the court had dismissed an action similar, although not identical, to this one. In Joseph, plaintiffs were a thirteen year old child and his parents. They sued a private academic institution which the child had attended for three years and from which he had been expelled for misbehavior. They alleged that they had informed the school of the child’s behavior problems and that although the school had represented that it provided such superior education that the behavior problems would be negated, this had not occurred. Thus, plaintiffs alleged, inter alia, breach of agreement to provide quality education. The trial court did not permit the plaintiffs to plead this cause of action, relying on decisions from numerous other jurisdictions in which similar claims for what has been labeled “educational malpractice” had been rejected. The Joseph court found that the alleged agreement and the alleged breach were both too vague to form a basis for relief, that there was no workable standard of care by which to judge the defendant’s performance, and that there was too much uncertainty in ascertaining both damages and the cause thereof. Id. at 570-71.

The trial court found the selfsame deficiencies in the instant case. It noted the generality of appellants’ allegations, finding that they had not alleged a definite standard of education which had been promised nor had they specified how that standard had been breached. Since the allegations were purely conclusory, consisting only of a statement that a “quality” education had been promised and that the actual instruction had not been of sufficient “quality”, the court dismissed the complaint.

On review of an order sustaining preliminary objections in the nature of a demurrer and dismissing a complaint, our review is plenary. We must determine whether the trial court correctly determined that, taking as true all properly pleaded material facts and disregarding all pleaded conclusions of law, under no circumstances will the law permit recovery on the complaint. Pawlowski v. Smorto, 403 Pa.Super. 71, 588 A.2d 36 (1990); Doe v. Dyer-Goode, 389 Pa.Super. 151, 566 A.2d 889 (1989), appeal denied, 527 Pa. 587, 588 A.2d 509 (1990).

A proper analysis of the question presented in this case requires a thorough review of the present state of the law regarding claims against educational institutions in which the quality or nature of the instruction given is at issue. The appellate courts of this Commonwealth have not previously considered the circumstances under which a student may recover on a common law action for breach of contract against a private trade school. However, the Commonwealth Court has addressed a somewhat analogous situation, i.e. the right of a student to sue a public academic institution for breach of contract or in tort for failure to provide the student with certain services or instruction. Moreover, courts across the country have considered in general the extent to which common law actions seeking redress for “educational malpractice”, whether in tort or contract, should be recognized.

In what appears to be the first reported decision on this issue, Peter W v. San Francisco Unified School District, 60 Cal.App.3d 814, 131 Cal.Rptr. 854 (1976), a student sued the public high school he had attended alleging that although he had graduated, the school had negligently failed to provide him with basic skills in reading and writing. The court refused to recognize a cause of action for educational malpractice on several grounds. As the Peter court’s analysis has more recently been described:

For one, the conflicting theories of the science of pedagogy prevented the construction of a workable rule of care. In other words, different but acceptable scientific methods of academic training made it unfeasible to formulate a standard by which to judge the conduct of those delivering the services. Second, the nature of the claim prevents a finding of legal causation. For example, failure in schools could stem from a variety of factors including the student’s physical, neurological, emotional, cultural and environmental background, as well as the actual system itself. Lastly, school systems are already beset by social and financial problems for which no solution is yet available. To expose the schools to liability in light of the above policy considerations would be an undue burden on society.

Swidryk v. Saint Michael’s Medical Center, 201 N.J.Super. 601, 493 A.2d 641, 643 (1985).

This rationale has been followed by courts in numerous jurisdictions, including Pennsylvania. In Aubrey v. School District of Philadelphia, 63 Pa.Commw. 330, 437 A.2d 1306 (1981), and Agostine v. School District of Philadelphia, 106 Pa.Commw. 492, 527 A.2d 193, appeal denied, 517 Pa. 610, 536 A.2d 1334 (1987), the Commonwealth Court rejected similar suits against public schools. In Aubrey, a student who failed to graduate with her class because she had failed a health education class sued the school on several theories of relief. The court affirmed the dismissal of her complaint on demurrer, stating that important policy reasons prevented the court from entertaining such a suit. The court not only agreed that it was inappropriate for courts to make judgments on educational policy, but also found it to be unwise for courts to engage in day-to-day review of the implementation of such policies. Aubrey, 63 Pa.Commw. at 332-334, 437 A.2d at 1307 (citing Donohue v. Copiague Union Free School, 47 N.Y.2d 440, 418 N.Y.S.2d 375, 391 N.E.2d 1352 (1979)). The court further relied on the fact that the Supreme Court of Pennsylvania has long vested substantial discretion in school authorities, who by statute are charged with administering the public school system, whose conduct is governed by extensive statutory and regulatory controls, and who, unlike the courts, have substantial expertise in all aspects of educational policy and administration. Id. (citing Regan v. Stoddard, 361 Pa. 469, 65 A.2d 240 (1949)).

More recently, in Agostine, the Commonwealth Court rejected a negligence action in which a student alleged that she had improperly been placed in classes for the educable mentally retarded when she was in fact learning disabled. The court restricted plaintiff to relief under the Public School Code, pursuant to which the Department of Education regulates the training and education of exceptional students, and found that the plaintiff had no separate right to a private cause of action for monetary relief. Id. See also Hoffman v. Board of Education, 49 N.Y.2d 121, 424 N.Y.S.2d 376, 400 N.E.2d 317 (1979); Hunter v. Board of Education of Montgomery County, 292 Md. 481, 439 A.2d 582 (1982); Tubell v. Dade County Public School, 419 So.2d 388 (Fla.Dist.Ct.App.1982).

This reasoning in support of barring a cause of action for educational malpractice against a public school has equally been applied to such actions against a variety of private schools. For example, in Helm v. The Professional Children’s School, 103 Misc.2d 1058, 481 N.Y.S.2d 246 (1980), the court specifically found that the same concerns regarding the ability to establish a causal link between the student’s failure to learn and the school’s educational program were present in an action against a private academic institution.

However, in some of the cases involving actions against private educational institutions, the courts have recognized that in certain limited situations a private institution may be subject to a cause of action for breach of contract. In one such case, Paladino v. Adelphi University, 89 A.D.2d 85, 454 N.Y.S.2d 868 (1982), the court opined that although many of the reasons for refusing to recognize a cause of action for an alleged general failure to educate against a public school may apply equally to a private institution, in some such cases there may be available proof of a specific contractual undertaking which was breached, clearly and directly resulting in at least some demonstrable damages. The Paladino court opined:

If in a case such as this, a private school were to accept a student’s tuition and thereafter provide no educational services, an action for breach of contract might lie. Similarly, if the contract with the school were to provide for certain specified services, such as for example, a designated number of hours of instruction, and the school failed to meet its obligation, then a contract action with appropriate consequential damages might be viable.

Id. at 92, 454 N.Y.S.2d at 873. The court continued, however, by pointing out that the facts alleged in the case before it did not include allegations of such a specific contractual undertaking, but rather consisted of allegations of a general failure to educate. In such a case, the court concluded that whether the action was labeled as a tort action or a breach of contract action was irrelevant, since in either situation the court would be forced to enter into an inappropriate review of educational policy and procedures:

The asserted breach is predicated upon the quality and adequacy of the course of instruction. The claim requires the factfinder to enter the classroom and determine whether or not the judgments and conduct of professional educators were deficient____ It is readily apparent that the claims entail an analysis of the educational function____ The quality of the education and qualifications of the teachers employed by the private school are concerns not for the courts, but rather for the State Education Department and its commissioner.

Id. See also Wickstrom v. North Idaho College, 111 Idaho 450, 725 P.2d 155 (1986).

Of particular interest in this regard is a very recent case decided by the Court of Appeals of Ohio in which the court recognized the existence of a private cause of action for breach of contract against a private trade school. In Malone v. Academy of Court Reporting, 64 Ohio App.3d 588, 582 N.E.2d 54 (1990), several former students of a court reporting school sued the school, alleging, inter alia, fraud and breach of contract. The students alleged that they had enrolled at the school to receive paralegal training. They stated that the school had solicited their enrollment through a variety of advertising methods in which the school had represented that completion of the paralegal curriculum would yield an associate’s degree in paralegal studies, that the school had job placement services, that starting salaries for graduates were guaranteed to be at a certain level, that it had admission standards, a financial aid program, and training in Westlaw and Lexis, and that the study hours were transferable to the Ohio State University. The plaintiffs later learned, however, that the school was not certified or accredited by the state to issue an associate’s degree and subsequently withdrew.

The trial court dismissed the complaint, largely for the reasons relied upon by other courts who have refused to recognize educational malpractice claims. The appellate court disagreed and reinstated the complaint, drawing a distinction between a general allegation of educational malpractice and a suit seeking redress for specific instances of misrepresentation and breach of a specific contractual undertaking, as follows:

Defendants rely on Paladino v. Adelphi University ... for the proposition that any allegation directed to the adequacy or quality of education received is essentially a claim for educational malpractice which must be barred on public policy grounds. The so-called educational malpractice claim has not been well-received by the few courts which have addressed the issue. The Seventh District Court of Appeals of Ohio affirmed a motion to dismiss a complaint filed against the Steubenville Board of Education where the plaintiff alleged that he was promoted through high school as an athlete without ever being taught how to read and write.
In this case, however, plaintiffs have not mentioned educational negligence or malpractice anywhere in their complaint. Further, they have not argued on appeal that they presented this cause of action. They claim breach of contract [and] misrepresentation____
In Ohio, breach of contract and misrepresentation claims by students against educational institutions have been entertained by the courts for some time____ In Behrend [v. State, 55 Ohio App.2d 135, 379 N.E.2d 617 (1977)], this court held that an action would lie for an implied contract to provide accredited academic training where a state university closed down its school of architecture after losing accreditation. Moreover, we recognized in that case that an action for misrepresentation would lie for untrue or misleading statements about accreditation. Hence, plaintiffs have stated claims for breach of contract and misrepresentation.

Id. at 593-94, 582 N.E.2d at 58-59 (citations omitted). Thus, the Ohio court engaged in an analysis similar to that pursued in Paladino. See also Blane v. Alabama Commercial College, — Ala.-, 585 So.2d 866 (1991) (plaintiff who sued business college could not recover for breach of contract where she had not alleged any specific contractual undertaking that was breached); Wickstrom v. North Idaho College, 111 Idaho 450, 725 P.2d 155 (1986) (student who sued college where he enrolled in maintenance mechanic course could not recover for breach of contract where he had not alleged any specific contractual undertaking that had been breached).

Against the backdrop of these authorities, we now consider whether plaintiffs in the instant case have succeeded in pleading a cognizable cause of action against the Institute. We are persuaded by the reasoning employed by the many courts that have refused to recognize a general cause of action for educational malpractice, whether framed in terms of tort or breach of contract, where the allegation is simply that the educational institution failed to provide a quality education. It would be unwise to inject the judiciary into an area where it would be called upon to make judgments despite often insurmountable difficulties both in the formulation of an adequate standard of care and in finding a causal link between the alleged breach and the alleged damages. Moreover, as the Commonwealth Court

has correctly indicated in its decisions in Aubrey and Agostine, the legislature has already enacted a statutory scheme for the regulation of public schools. We add that this scheme also extends to both private academic and trade and business schools. See, e.g., Pa.Stat.Ann., tit. 24, §§ 6701-21 (Private Academic Schools Act) & tit. 24, §§ 6501-18 (Private Licensed Schools Act) (Supp.1991).

The concerns that are clearly appropriate in the case of an academic institution are equally raised by an attempt to inquire into the sufficiency of teaching methods at a trade or business school like the Institute. This court would be hard pressed to determine which of several alternative methods of teaching court reporting, or auto repair, or any other specialized business or trade skill was the appropriate one. Nor would it be an easy task to determine why a particular student failed to acquire certain skills after pursuing a course of instruction aimed at teaching those skills.

This is not to say, however, that it should be the policy of this Commonwealth to bar an action against a private trade school in every instance, no matter what the allegations of the complaint. We are convinced that the distinction drawn by the Paladino and Malone courts is valid. We can fathom no policy against permitting a cause of action for breach of contract or misrepresentation where, for example, a private trade school has made a positive representation that a certain curriculum will be offered and the student then finds that such curriculum is not available or where the school has asserted that it is accredited or licensed to give a certain degree and it is later discovered that this is false. In such a case, the nature of the contractual undertaking and the breach thereof are clear and the plaintiff may be able to establish a cause of action against the offending institution. Cf. Reimer v. Tien, 356 Pa.Super. 192, 514 A.2d 566 (1986).

The difficulty with the instant lawsuit is simply that plaintiffs’ complaint amounts to a general allegation of a lack of a quality education, without more. The complaint does not allege that there was any specific undertaking, in the student handbook and catalog or otherwise, to provide a specific course of instruction which was not provided. There is no allegation that any of the courses which the handbook included in the school’s curriculum were not offered. Nor does the complaint allege that the representations made by the Institute to the effect that it was approved by the NSRA or PHEA were false. Finally, there is no pleading of any other specific misrepresentation or failure to perform a contractual undertaking. The sole allegation is that the instruction and instructors provided by the school were generally inadequate and of low quality. Such a complaint invites the court to enter into precisely the kind of generalized review of the entire course of instruction that so many other courts have wisely refrained from doing. Moreover, it presents obvious difficulties in determining whether appellants’ withdrawal from the course and any damages they may have suffered were actually caused by deficiencies in the instruction given or, alternatively, by other factors unrelated to the Institute. Such a complaint is clearly insufficient.

Therefore, the trial court did not err in dismissing the complaint.

The order of the trial court is affirmed.

JOHNSON, J., files a concurring statement.

JOHNSON, Judge,

concurring.

I join so much of the Majority Opinion as determines that the complaint is clearly insufficient and that the most distinguished trial judge, the Honorable R. Stanton Wettick, Jr., did not err in sustaining the preliminary objections and dismissing the complaint.

Judge Wettick found that, although the plaintiffs set forth certain educational standards in their complaint, there was no claim that any of those standards had been breached. He further found that the complaint contained numerous conclusory allegations that fell short of the specificity required in fact pleading. None of the fourteen specific paragraphs contained in the defendants’ demurrer to the complaint raise the issue of common law educational malpractice.

I do not necessarily disagree with some of the observations in the Majority Opinion regarding the issue of a common law action for breach of contract against a private trade school. However, on the pleadings before us on this appeal, the complaint is so deficient that the action of the trial court may be affirmed without delving into whether Pennsylvania should recognize a general cause of action for educational malpractice in matters involving private trade schools.

The Majority acknowledges in a footnote that the distinguished trial court specifically invited the plaintiffs to seek leave to amend their complaint in order to more specifically set forth both the alleged agreement between the parties and the breach. The plaintiffs have not sought such relief either from the trial court or from this court during the appeal. I am satisfied that the complaint which we are called upon to review does not set forth a cause of action upon which relief could be granted, regardless of whether Pennsylvania had in place a cause of action for educational malpractice.

This matter has come to us specially submitted on briefs, without oral argument. The complaint is deficient on its face. I would postpone consideration of the issues surrounding causes of action based upon educational malpractice until that problem is squarely presented. I therefore must concur in the result.

      . The court did not specifically deal with appellants' Unfair Trade Practices and Consumer Protection Law cause of action. We need not address this issue, since appellants have presented no argument as to this cause of action in their brief to this court.
      We also note that the trial court specifically invited appellants to seek leave to amend their complaint to further specify the agreement and breach. Since appellants had already filed this appeal, the court stated that if appellants wished to amend, they should request that this court remand the matter to permit amendment. Appellants have not made such a request in their brief, arguing instead that the complaint is sufficient in its present form.

      . One possible and manifestly undesirable consequence of recognizing an educational malpractice cause of action challenging the general quality of instruction given at an educational institution is well illustrated by the case of Swidryk v. Saint Michael's Medical Center, 201 N.J.Super. 601, 493 A.2d 641 (1985). In that case, a resident doctor who was sued for malpractice in turn sued the director of medical education at the hospital where plaintiff was a resident, contending that he was provided inadequate supervision during his residency and provided an inadequate medical educational environment. The court rejected the action, stating:
      To allow a physician to file suit for educational malpractice against his school and residence program each time he is sued for malpractice would call for a malpractice trial within a malpractice case. Creation of the tort of educational malpractice in this context would substantially increase the amount of time which a medical malpractice case takes to try____ The litigation explosion has limits and this is one area in which those limits should definitely be marked.

        Id. at 608, 493 A.2d at 645. Similarly, in Moore v. Vanderloo, 386 N.W.2d 108 (Iowa 1986), a patient allegedly injured by a chiropractor sued both the chiropractor and the school where he was trained for breach of warranty and negligence. The Supreme Court of Iowa affirmed a grant of summary judgment for the school, citing all of the traditional reasons for not recognizing a claim for educational malpractice claim and further opining, in pertinent part:

        ... if a cause of action for educational malpractice is recognized in Iowa, any malpractice case would have a malpractice action within it. For example, a doctor or attorney sued for malpractice by a patient or client might have an action over against his or her educational institution for failure to teach the doctor or attorney how to treat or handle the patient or client's problem.....Further, if an educational malpractice claim is allowed against a professional school, could we logically refuse to recognize such a cause of action against an institution offering training courses for certain trades? For example, would a homeowner damaged by faulty wiring have a cause of action against the electrician’s trade school?

        Id. at 115.

      . We need devote very little space to a rebuttal of appellants’ argument that numerous jurisdictions have recognized a cause of action like that pleaded in appellants’ complaint. In support of this contention, appellants provide citations to and one line descriptions of seven cases decided by other jurisdictions. Most of these cases are not even remotely apposite to the instant dispute and the others are not at all persuasive. For example, appellants refer us to Olson v. Glens Falls Insur. Co., 5 Cal.Rptr. 233, 181 Cal.App.2d 165 (1960), as a case wherein students of a cosmetology school were permitted to sue the school for breach of contract. Appellants fail to mention, however, that in Olson the plaintiffs proceeded under a specific provision of the California Business and Professions Code requiring surety bonds for the protection of cosmetology school students. Clearly this case has no relevance here. Similarly, appellants refer us to Dinberg v. Albert Murray, Inc., 331 N.Y.S.2d 65, 39 A.D.2d 622 (1972), a case in which the plaintiff student proceeded on a specific statutory cause of action under the New York General Business Law. Once again, we fail to see how this authority has any relevance to the action before us. Suffice it to say, the remaining cases cited by appellants also involve a variety of factual and legal scenarios which sufficiently distinguish them from the instant case as to make them irrelevant to our disposition of this case.


author: POPOVICH, Judge:

text:
    605 A.2d 405
    COMMONWEALTH of Pennsylvania, Appellee, v. Myron LEIGHOW, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 20, 1991.
    Filed March 25, 1992.

      Peter J. Hill, Bloomsburg, for appellant.
    Scott W. Naus, Dist. Atty., Bloomsburg, for Com.
    Before CAVANAUGH, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

This is an appeal from judgment of sentence entered January 18, 1990, in the Court of Common Pleas of Columbia County, following appellant’s conviction on the charge of criminal homicide. Appellant raises three issues on appeal: 1) Whether the lower court erred in denying his pretrial motions for a change of venue or venire; 2) Whether the lower court erred in precluding appellant from entering testimony to impeach the credibility of one of the Commonwealth’s witnesses; and 3) Whether the lower court erred in denying appellant’s motion for a mistrial on the ground that the Commonwealth withheld exculpatory or favorable evidence from appellant when it failed to disclose to him that a State Police scuba team had dragged the Montour Preserve Lake but did not find the murder weapon. Having reviewed the record and the parties’ briefs, we affirm.

The relevant facts are as follows: In the early morning of July 16,1987, Lee Creasy was shot in the back while on the porch of his home. Creasy died as a result of this wound. Police arrested appellant, a co-worker and friend of the victim, and charged him with Creasy’s murder. Following a trial, a jury found appellant guilty of murder in the first degree.

Appellant contends that, in view of the publicity which his case received, the court below erred in denying his motions for a change of venue or venire. We disagree.

Our standard of review is clear. As we stated in Commonwealth v. Patterson, 392 Pa.Super. 331, 572 A.2d 1258 (1990): “The grant or refusal of a change of venue is within the sound discretion of the trial court, which is in the best position to assess the community feeling, and it will not be disturbed absent an abuse of discretion.” Id., 392 Pa.Superior Ct. at 349, 572 A.2d at 1268.

In Commonwealth v. Breakiron, 524 Pa. 282, 571 A.2d 1035 (1990), our Supreme Court stated that, absent any showing of prejudice, when determining whether a new trial is required due to pre-trial publicity, we must consider the following factors:

1. Whether pre-trial publicity was inherently prejudicial;
2. Whether pre-trial publicity saturated the community;
3. Whether there was a sufficient proximity in time between the publicity and the selection of a jury such that the community from which the jury was drawn did not have an opportunity to ‘cool down’ from the effects of the publicity, thus making a fair trial in this community impossible. If all of these questions are answered in the affirmative, a new trial is required. If any question is answered negatively, it was not improper to refuse the request for a change of venue.

Id., 524 Pa. at 287, 571 A.2d at 1037 (quoting Commonwealth v. Romeri, 504 Pa. 124, 470 A.2d 498 (1983)).

The Breakiron court defined “inherently prejudicial” publicity as

‘publicity which is harmful to the accused, and which may or may not require a change of venue depending upon what effect it has had in the community from which prospective jurors are drawn.’ Factors to consider in the determination as to whether publicity is inherently prejudicial include: ‘whether the pre-trial publicity was, on the one hand, factual and objective, or, on the other hand, consisted of sensational, inflammatory and ‘slanted articles demanding conviction’ ...; whether the pre-trial publicity revealed the existence of the accused’s prior criminal record; whether it referred to confessions, admissions or reenactments of the crime by the defendant; and whether such information is the product of reports by the police and prosecutorial officers.

Id., 524 Pa. at 287-88, 571 A.2d at 1037 (quoting Commonwealth v. Romeri, 504 Pa. 124, 470 A.2d 498 (1983)).

Instantly, the publicity which appellant claims was prejudicial was in the form of newspaper articles, television and radio reports. These articles and reports may be separated into two categories: 1) Those made within months of the shooting; and 2) those made within days of appellant’s trial. We will address both of these categories.

Applying the first of the criteria enunciated in Breakiron, supra, we note that the articles and newscasts published in the fall of 1987 and spring of 1988 make reference to appellant’s criminal record and his relationship with the victim’s wife. It is clear from our review of these media reports that they were “inherently prejudicial” under Breakiron.

Next, we must determine “whether such publicity has been so extensive, so sustained and so pervasive that the community must be deemed to have been saturated with it.” Breakiron, supra, 524 Pa. at 288, 571 A.2d at 1037. At appellant’s preliminary hearing, his counsel presented evidence of the frequency of the news reports and the size of the audience that the various media reach. In view of the media attention given to this case, as demonstrated by this evidence, we find it reasonable to conclude that the community had, in fact, been “saturated” by this publicity.

Last, we must determine whether there was an adequate “cooling off” period. As our Supreme Court stated in Breakiron:

In testing whether there has been a sufficient cooling period, a court must investigate what the panel of prospective jurors has said about its exposure to publicity in question. This is one indication of whether the cooling period has been sufficient. Thus, in determining the efficacy of the cooling period, a court will consider the effects of publicity, something a defendant need not allege or prove.
Although it is conceivable that pretrial publicity could be so extremely damaging that a court might order a change of venue no matter what the prospective jurors said about their ability to hear the case fairly and without bias, that would be a most unusual case. Normally, what prospective jurors tell us about their ability to be impartial will be a reliable guide to whether the publicity is still so fresh in their minds that it has removed their ability to be objective. The discretion of the trial judge is given wide latitude in this area.

Id., 524 Pa. at 288, 571 A.2d at 1037-38 n. 1.

Instantly, appellant has not provided us with a transcript of the voir dire testimony. However, our review of the Voir Dire Questions of Defendant indicates that appellant’s counsel made a thorough inquiry into the prospective jurors' ability to be objective, placing particular emphasis upon their knowledge of media reports of the case both before and after they had been summoned for jury duty. Voir Dire Questions of Defendant at 1-2. As the lower court stated:

The record will further reveal that the voir dire process was long and searching, encompassing several days of individual voir dire, which included extensive questioning by defense counsel, who did not exhaust their peremptory challenges. In the course of the voir dire, the Court was liberal in granting challenges for cause.

Trial Court Opinion at 3.

In view of the attention which both the lower court and appellant’s counsel gave to jury selection, we are satisfied that adequate inquiry was made into “whether the publicity [was] still so fresh in their minds that it ha[d] removed their ability to be objective” and that the lower court did not abuse its discretion in refusing appellant’s request for a change of venue or venire. Breakiron, supra, 524 Pa. at 288, 571 A.2d at 1038, n. 1. We hold, therefore, under the circumstances sub judice, that the period of more than seven months which passed between the time of publication of the last of these media reports and the commencement of jury selection was sufficient to allow the prospective jurors to “cool down” from the effects of this publicity. See Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976) (six month “cooling off” period sufficient following pretrial publicity).

Next, with respect to the publicity which appellant’s case received during jury selection, appellant directs our attention to several newspaper articles. These articles describe appellant as a “state parolee” and an “ex-convict” and tell of his “criminal record for local arson in 1983”, as well as the “[p]olice [having] said [appellant] had been having an affair ... with [the victim’s] wife, ... who was also arrested as a conspirator in the shooting.” Defendant’s Third Motion for Change of Venue/Venire, Exhibits 1-3. Arguably, these newspaper accounts meet the definition of “inherently prejudicial” set forth in Breakiron.

However, although some of the prospective jurors may have been aware of these articles, we have no basis upon which to conclude that their publication amounted to publicity which was “so extensive, so sustained and so pervasive that the community must be deemed to have been saturated with it.” Breakiron, supra, 524 Pa. at 288, 571 A.2d at 1037. Further, as stated above, the lower court and appellant’s counsel expended considerable effort scrutinizing prospective jurors. Our review of the record gives us no indication that the court below abused its discretion in denying appellant’s motions for a change of venue or venire.

Next, appellant contends that the lower court erred in refusing to allow Ramona Pegg to testify as to a conversation she had with Samuel Sassaman, the victim’s brother-in-law. This contention is without merit.

At trial, Sassaman testified that on the night of the shooting, he went to the home of his neighbor, Ramona Pegg and told her that he had killed Lee Creasy. Sassaman then testified that he later told Ms. Pegg that he hired someone to kill Creasy. Trial Transcript at 208-09. When questioned at trial as to his reasons for telling his neighbors of his responsibility for the crime, Sassaman testified that he was trying to protect his mother. Trial Transcript at 195. Sassaman further testified that his mother had threatened him after he had overheard her and appellant planning the shooting. Trial Transcript at 185-87, 190, 195. In addition, Sassaman stated that he lied to police about the crime on several occasions. Trial Transcript at 201-14.

Subsequently, appellant’s counsel called Ramona Pegg to testify. When appellant’s counsel began to question Ms. Pegg as to what Sassaman had said to her on the night of the shooting, the prosecutor objected on the grounds of the testimony being hearsay and duplicative. At sidebar, appellant’s counsel asserted that the witness should be allowed to testify as to what Sassaman had told her since, even if such a statement were hearsay, it would come in under the declaration against interest exception to the hearsay rule. The trial court sustained the Commonwealth’s objection. Trial Transcript at 324-25. Appellant asserts that, in spite of the fact that Sassaman admitted that he had told Ms. Pegg and her husband that he killed Lee Creasy, Ms. Pegg could have testified as to the exact nature of the conversation as well as Sassaman’s demeanor.

It is well settled that a trial court has discretion to exclude evidence which is cumulative. Leaphart v. Whiting Corp., 387 Pa.Super. 253, 564 A.2d 165 (1989). Instantly, the evidence which appellant’s counsel sought to elicit from Ramona Pegg had already been established. Sassaman himself testified that he made the admission to Ms. Pegg. Appellant’s counsel did not inform the trial judge that he wished to explore Ms. Pegg’s recollection of Sassaman’s demeanor during her conversation with him. We do not, therefore, find that the lower court abused its discretion in refusing to allow testimony for which no legitimate purpose had been established.

Finally, appellant asserts that the lower court erred in denying his request for a mistrial because the Commonwealth withheld exculpatory or favorable evidence from appellant. We disagree.

Before trial, appellant’s attorney made a discovery request, seeking, inter alia, “[a]ny and all evidence favorable or exculpatory to the above-named accused, which is material either to the issue of guilt or to punishment, which is in the possession or control of the Commonwealth.” Appellant’s Request for Disclosure and Discovery at 1. Subsequently, appellant, through his attorney, informed the Commonwealth that he “intend[ed] to present an alibi defense and staffed] the facts as follows: ... 3. At the time and date of said offense, Defendant, Myron Leighow, was night-fishing at the Montour County Preserve, Montour County, Pennsylvania....’ Notice of Alibi Defense at 1. The Commonwealth did not reveal to appellant’s counsel that the Pennsylvania State Police had dragged the Montour Preserve Lake and failed to discover the murder weapon. Nevertheless, in his closing statement to the jury, the attorney for the Commonwealth stated, in part: “I submit to you there is no gun. He told you there was no gun. If he went fishing at all, he didn’t throw a line in the water, people.” District Attorney Closing Statement at 14-15. Appellant’s counsel made a timely objection to the Commonwealth’s remarks, and requested that the trial judge declare a mistrial. The judge denied this request. Trial Transcript at 413-16.

Appellant contends that by failing to disclose to his counsel that the Montour County Preserve Lake had been dragged, the Commonwealth violated Pennsylvania Rule of Criminal Procedure 305(B)(1). Rule 305(B)(1) provides, in part:

B. Disclosure by the Commonwealth
(1) Mandatory. In all court cases, on request by the defendant, and subject to any protective order which the Commonwealth might obtain under this rule, the Commonwealth shall disclose to the defendant’s attorney all of the following requested items or information, provided they are material to the instant case. The Commonwealth shall, when applicable, permit the defendant’s attorney to inspect and copy or photograph such items, (a) Any evidence favorable to the accused which is material either to guilt or punishment, and which is within the possession or control of the attorney for the Commonwealth;

As we stated in Commonwealth v. Johnson, 310 Pa.Super. 385, 456 A.2d 988 (1983):

Pa.R.Crim.P. 305 E gives the trial court broad discretion in formulating remedies for a failure to comply with discovery requirements. In many cases, ordering a continuance will be an adequate remedy. This will be so where the undisclosed statement or other evidence is admissible and the defendant’s only prejudice is surprise. Sometimes, however, the prejudice will go beyond surprise; if the prejudice is so great that the fairness of the trial has been affected, a new trial should be ordered.

Id., 310 Pa.Superior Ct. at 395, 456 A.2d at 993.

Assuming, arguendo, that the Commonwealth violated Rule 305(B)(1), appellant has not demonstrated that he was prejudiced by this violation. Evidence that the murder weapon had not been found after the Montour Preserve Lake was dragged would not have exculpated the appellant. Indeed, Sergeant Roger W. Nunkester, one of the investigating police officers, testified on cross-examination by appellant’s counsel that the murder weapon had not been found. Trial Transcript at 105. We hold, therefore, that the lower court did not abuse its discretion in denying appellant’s request for a mistrial. See, Commonwealth v. Bruner, 388 Pa.Super. 82, 564 A.2d 1277 (1989) (decision whether to declare a mistrial is within the discretion of the trial court and will not be reversed absent an abuse thereof).

Judgment of sentence affirmed.

      . Even if our review of the voir dire testimony would reveal evidence to support appellant’s contentions, he has waived our consideration of the testimony by failing to include a transcript of the voir dire for our review. Pa.R.App.P.1921. See also, Commonwealth v. Patterson, 392 Pa.Super. 331, 572 A.2d 1258 (1990).

      . In Kepple v. Fairman Drilling Co., 380 Pa.Super. 52, 551 A.2d 226 (1988), we stated:
      A mere error of judgment does not rise to abuse of discretion: it is only where the trial court, in reaching its conclusion, has overridden or misapplied the law, or where the judgment is manifestly unreasonable, or the result of prejudice, partiality, bias, or ill will illustrated by the record, that it will be found to have abused its discretion.

        Id., 380 Pa.Superior Ct. at 57-58, 551 A.2d at 229.

      . We find the fact that appellant did not exhaust his peremptory challenges to be particularly noteworthy.


author: WIEAND, Judge:

text:
    605 A.2d 410
    Karen N. WEAVER (now Karen Swank) v. James H. WEAVER. Appeal of Martin M. DUDAS, t/a Dr. Dudas Associates.
    Superior Court of Pennsylvania.
    Submitted Oct. 31, 1991.
    Filed March 26, 1992.

      James B. Yelovich, Somerset, for appellant.
    George B. Kaufman, Asst. Dist. Atty., Somerset, for Karen Weaver, appellee.
    Joseph B. Policicchio, Somerset, for James Weaver, appellee.
    Before ROWLEY, President Judge, and CAVANAUGH, WIEAND, CIRILLO, OLSZEWSKI, KELLY, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.
   WIEAND, Judge:

Karen Nannette Weaver (now Swank) and James Hamilton Weaver were divorced by a bifurcated decree entered November 21, 1980. The equitable distribution of marital property, consisting solely of a jointly owned residence having a value of twenty thousand ($20,000) dollars, was referred to a special master. Following the divorce decree but before the marital property had been distributed, three judgments were entered against the husband. The first of these judgments was entered on June 29, 1981 for four hundred and 69/100 ($400.69) dollars in favor of the Pennsylvania Department of Revenue. The second judgment was entered on August 18, 1981 in favor of Martin Dudas, D.D.S., t/a Dr. Dudas Associates, in the amount of seven hundred twenty-seven and 53/100 ($727.53) dollars. The third judgment was entered on October 2, 1986 in favor of Craig A. Miller for three thousand, nine hundred ninety-eight and 46/100 ($3,998.46) dollars. When the master held a hearing on November 19, 1987, the liens of the Department of Revenue and Dr. Dudas had not been revived. The master filed a report in which he recommended that the marital home be awarded to the wife. Exceptions were filed by the husband and by Craig A. Miller and heard by the trial court, which awarded the marital home to the wife free and clear of liens, subject, however, to her payment of three thousand ($3,000) dollars. The trial court also directed the master to hold a further hearing to determine the manner in which the three thousand ($3,000) dollars were to be distributed among husband and his creditors. Only Craig Miller appeared at the subsequent hearing before the master, and the master recommended that the entire three thousand ($3,000) dollars, less certain costs and fees, be awarded to Miller on account of his judgment. He concluded that any liens which Dr. Dudas and the Department of Revenue might have had against husband’s interest in the real estate had lapsed when the same had not been renewed at the end of five years. Dr. Dudas filed exceptions, which the trial court dismissed. He then filed the instant appeal.

After husband and wife had been divorced by decree entered on November 21, 1980, the real estate previously owned by them as tenants by the entireties was owned as tenants in common. Act of May 10, 1927, P.L. 884, § 1, as amended, 68 P.S. § 501. In Jawork v. Jawork, 378 Pa.Super. 89, 548 A.2d 290 (1988), a panel of the Superior Court considered the interaction between the Act of 1927 and the equitable distribution provisions of the Divorce Code of 1980 and concluded that the two were not in irreconcilable conflict. The Court said:

The Act of [1927], as amended ... governs only the status of the title between divorcing parties; the Divorce Code provides jurisdiction to, inter alia, equitably divide marital property. 28 P.S. § 301(a)(1). The change in legal status of the title does not affect the power of the court to determine the parties’ respective rights in the property pursuant to the Divorce Code, nor does the change in ownership status alter its classification as marital. Property does not lose its marital character merely because the entry of a divorce decree in a bifurcated action has, pursuant to 68 P.S. § 501, operated to change the way in which it is held. See 23 P.S. § 401(f); Marinello v. Marinello, 354 Pa.Super. 471, 512 A.2d 635 (1986) (absent action for partition, separate estates are not created and property is not classified as non-marital pursuant to 23 P.S. § 401(e)(2)).

Id., 378 Pa.Superior Ct. at 94-95, 548 A.2d at 292. Cf. Klebach v. Mellon Bank, N.A., 388 Pa.Super. 203, 210, 565 A.2d 448, 451 (1989), allocatur granted, 527 Pa. 647, 593 A.2d 420 (1990).

When the Dudas judgment was entered on August 18, 1981, it became a lien against the undivided one-half interest of the husband in the real estate which he and his former wife then owned as tenants in common. The entry of that judgment, however, did not affect the power of the court to make equitable distribution of marital real estate pursuant to the Divorce Code of 1980. When the Dudas judgment was filed, the record in the Prothonotary’s office showed that the Weaver real estate was the subject of proceedings for equitable distribution in the pending divorce action between the owners. Therefore, Dudas was chargeable with knowledge that the one-half interest against which he asserted a lien was involved in divorce litigation and was subject to distribution by the court. Cf. Hoyt v. American Traders, Inc., 301 Or. 599, 725 P.2d 336 (1986) (doctrine of lis pendens applied where husband’s creditor obtained judgment after wife had filed complaint for divorce and equitable distribution). Dudas, as judgment creditor, acquired no greater rights in the real estate than those of the debtor spouse. He succeeds only to that which the debtor spouse’s interest in the marital property turns out to be. Cf. Daeschler v. Daeschler, 214 N.J.Super. 545, 520 A.2d 777 (App.Div.1986). His lien was subject to any obligation to convey imposed upon the judgment debtor by the divorce court. Cf. Frankel v. Northeast Land Co., 391 Pa.Super. 226, 232, 570 A.2d 1065, 1068 (1990); Chorba v. Davlisa Enterprises, Inc., 303 Pa.Super. 497, 503, 450 A.2d 36, 39 (1982).

The lien of the Dudas judgment continued as a lien against James Weaver’s undivided one-half interest in real estate for a period of five (5) years after it had been filed but no longer, unless it was revived. Judgment Lien Law of July 3, 1947, 12 P.S. § 878. Because the Dudas judgment was not revived, the lien thereof lapsed and lost its priority to the lien of the Miller judgment, which was entered on October 2, 1986. See: Cusano v. Rubolino, 351 Pa. 41, 44, 39 A.2d 906, 908 (1944). When the Weaver home was ordered distributed to Karen Weaver Swank, the Dudas judgment did not constitute a lien against the interest of James Weaver in the real estate and was not entitled to participate in the funds paid to James Weaver as part of the trial court’s plan of distribution. Therefore, Dudas cannot complain of the trial court’s award of the real estate to Karen Weaver Swank free and clear of any lien of the judgment which he held against James Weaver. Similarly, he cannot complain that the moneys due his debtor were ordered paid to Craig Miller.

Order affirmed.

      . Although the divorce action had been commenced in March, 1978, prior to adoption of the Divorce Code of 1980, the trial court, on petition, had allowed the action to proceed under the new law.

      . This statute was repealed by the Act of December 19, 1990, P.L. 1240, No. 206, § 6, effective ninety (90) days thereafter.

      . Although repealed by the Judiciary Act Repealer Act of April 28, 1978 to the extent that it is inconsistent with duly promulgated rules of procedure, no procedural rule has been promulgated to regulate the duration of judgment liens. Therefore, section 878 of the Judgment Lien Law continues in force as part of the common law of Pennsylvania. Hertzog v. Jung, 363 Pa.Super. 439, 444 n. 2, 526 A.2d 425, 427 n. 2 (1987). See: 42 P.S. § 20003(b); In re Lucas, 41 B.R. 785, 787 (E.D.Pa.1984).


author: HESTER, Judge: CAVANAUGH, Judge,

text:
    605 A.2d 413
    MARSTELLER COMMUNITY WATER AUTHORITY, Appellant, v. P.J. LEHMAN ENGINEERS, Redevelopment Authority of Cambria County and Barr Township.
    Superior Court of Pennsylvania.
    Argued Jan. 16, 1992.
    Filed March 26, 1992.

      James D. Carmella, Indiana, for appellant.
    L. Edward Glass, Johnstown, for P.J. Lehman Engineers, appellee.
    Before CAVANAUGH, WIEAND and HESTER, JJ.
   HESTER, Judge:

This is an appeal from a June 13, 1991 order granting preliminary objections and dismissing this action. The sole issue is whether appellant, Marsteller Community Water Authority (“Marsteller”), has standing to sue appellees, P.J. Lehman Engineers (“Lehman”), the Redevelopment Authority of Cambria County (“Authority”), and Barr Township (“Township”). We conclude that appellant has standing to sue each of the appellees. Accordingly, we reverse.

Initially, we discuss our standard of review when the trial court has granted preliminary objections.

A preliminary objection in the nature of a demurrer admits every well-pleaded fact and all inferences reasonably deducible therefrom. McGaha v. Matter, 365 Pa.Super. 6, 8, 528 A.2d 988, 989 (1987); Pike County Hotels, Corp. v. Kiefer, 262 Pa.Super. 126, 133, 396 A.2d 677, 681 (1978). It tests the legal sufficiency of the challenged complaint and will be sustained only in cases where the pleader has clearly failed to state a claim for which relief may be granted. Mudd v. Hoffman Homes For Youths, Inc., 374 Pa.Super. 522, 524, 543 A.2d 1092, 1093 (1988).

Kelly-Springfteld Tire Co. v. D’Ambro, 408 Pa.Super. 301, 303, 596 A.2d 867, 868 (1991), quoting Creeger Brick v. Mid-State Bank, 385 Pa.Super. 30, 32-33, 560 A.2d 151, 153 (1989).

In compliance with this standard, we must review the allegations in the complaint. Marsteller is a municipal authority formed by the supervisors of Barr Township to provide the water supply to residents of the Village of Marsteller in Barr Township, Cambria County. The water system was not in compliance with relevant state environmental requirements, and Marsteller commissioned a report that specified what must be done to bring the system into compliance with state law. A copy of the report is attached to the complaint.

The engineer’s report attached to the complaint was prepared for “Marsteller Community Water Authority” and states that Marsteller’s water system is in need of improvement to bring it into compliance with the Pennsylvania Department of Environmental Resources (“DER”) current rules and regulations. The report provides that the water system will be owned and operated by Marsteller.

The Redevelopment Authority of Cambria County was organized by the Cambria County Commissioners under the Urban Redevelopment Authority Law. 35 P.S. § 1701, et seq. In 1987, the Township received grants totalling $525,-000 to improve the water system owned and operated by Marsteller. The Township entered into an agreement with the Authority and delegated to it the Township’s authority to administer the grant. The relevant agreements and grant submissions are in the sole possession of the Township and the Authority. Marsteller was the intended beneficiary of the grant.

The Authority hired Lehman to perform the engineering services for the evaluation, design, bidding, administration, and inspection of the construction contracts for the improvement of the water system in a series of three contracts, which are in the sole possession of the Authority and Lehman. Marsteller was the intended beneficiary of these agreements. Appellees, jointly, adopted changes to the proposed system improvements, and work was not performed according to the report specifications. The complaint alleges that the system still is not capable of performing in accordance with mandated state guidelines.

A reasonable inference from the remaining, specific allegations forming the causes of action against appellees is that appellees received the engineering report, and Lehman was to use the specifications in the report to upgrade the water system. The complaint alleges that the improvements performed failed to bring the system in compliance with the DER requirements outlined in the report.

Appellees filed preliminary objections in the nature of a demurrer on numerous grounds, including that appellant lacked standing to pursue the action. Appellees failed to produce copies of the grants or the majority of the agreements mentioned in the complaint and alleged to be in their sole possession. Appellees produced only the second part of one contract between the Authority and Lehman and the agreement between the Township and the Authority regarding the Marsteller improvement grant. As to the portion of the contract produced, it is obviously the generic portion of the agreement between Lehman and the Authority and contains general contract provisions that could be applicable to any contract signed by the Authority. The agreement between the Township and the Authority provides that the Township is “ultimately responsible for administering the respective program funds as outlined in the formal application for funds.” Defendant’s Exhibit A at 1. It notes that the funds will be used for the acquisition, design, and construction of the water system improvements in the Village of Marsteller, and it delegates the Township’s authority to administer and manage the grant funds to the Authority.

We now examine the sole legal issue presented in this appeal, which is Marsteller’s standing to pursue this action. The standing issue, however, is different as it relates to Lehman and to the two public bodies. Marsteller’s standing to object to governmental action is controlled by a different body of law than Marsteller’s standing to pursue this action against Lehman, which is not a public body and which has no direct contractual relationship with Marsteller. We first address the issue of standing against the Township and Authority.

In Sprague v. Casey, 520 Pa. 38, 550 A.2d 184 (1988), and William Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975), our Supreme Court set forth the standing test applicable to actions by government bodies. Those cases provide that if a party has been sufficiently aggrieved by any government action, the party will have standing to sue that governmental agency. Sufficient adverse interest to confer standing is present if the governmental action had a substantial impact on the party in a direct and immediate manner. Sprague v. Casey, supra. In William Penn, the Court held that a party will have standing if their interest in the subject matter of the litigation is direct, immediate, and monetary.

Viewed in accordance with this standard, it is clear that Marsteller has standing against the Township and the Authority. Those public entities received grants that they were to administer for the benefit of Marsteller to bring its water system into compliance with the DER requirements so that it can continue to provide water to its customers. According to the allegations in the complaint, the negligence of the Township and Authority in administering the grants is directly responsible for Marsteller’s continued failure to meet those requirements. Marsteller now is unable financially to bring itself into compliance with DER regulations due to dissipation of grant funds that the Township and Authority assumed responsibility to administer for its benefit. This is a substantial and direct adverse monetary aggrievement from the governmental action.

In refusing to grant standing to Marsteller, the trial court reasoned that the residents of the Village of Marsteller were more appropriate plaintiffs. However, the fact that other parties may have standing to pursue an action against appellees does not mean that Marsteller does not have standing. Marsteller owns and operates the system that was to be improved with the grant money. It was directly and substantially aggrieved by the failure of the Township and Authority to properly oversee the improvements and to ensure that DER requirements were satisfied. Marsteller has standing under the applicable standard, and it is not relevant that other parties also are aggrieved by the actions of the Township and Authority.

As to Lehman, the issue of standing hinges on whether Marsteller is a third party beneficiary of the contract between Lehman and the Authority. A party is not a third party beneficiary of a contract unless the contract states an intent to benefit the third party. Spires v. Hanover Insurance Co., 364 Pa. 52, 70 A.2d 828 (1950). Thus, the fact that the obligee knows that he will perform the contracted-for services for a third party is not, in itself, sufficient to vest the third party with standing to sue on the contract. Manor Junior College v. Kaller’s Inc., 352 Pa.Super. 310, 507 A.2d 1245 (1986) (owner of building did not have standing to sue for breach of verbal contract between contractor and subcontractor to perform repairs on building).

The record is woefully deficient on this issue. According to the allegations in the complaint, Marsteller was the intended beneficiary of three contracts entered into between the Authority and Lehman. Yet the trial court ruled on this issue while a motion for production of the relevant documents was pending. A partial, generalized portion of one contract is contained in the preliminary objections filed by appellees. This leads us to the conclusion that as to the specifics of the contracts, viz, what Lehman was to do and for what consideration, Marsteller’s name appears quite often.- This conclusion is reinforced by the fact that the preparer of the report used in the grant process expressly acknowledges that the report was prepared for Marsteller and Marsteller was to own and operate the recommended improvements outlined in the report.

Scales v. Sheffield Fabricating and Machine Co., 258 Pa.Super. 568, 393 A.2d 680 (1978), provides guidance. In Scales, an engineering company alleged that it was the intended beneficiary of an agreement between the Pennsylvania Department of Commerce and a production company. The production company was granted money to produce a model of a truck designed by the engineering company. Attached to the contract between the department and the production company was a proposal by the engineering company, and the proposal stated that the engineering company was to be in charge of the engineering work necessary to develop the truck. We held that the engineering company was the third party beneficiary of the agreement and could enforce payment for its services.

In the present case, the averments in the complaint, which we must accept as true if not controverted, state that Marsteller is the intended beneficiary of both the grant and the contracts between Lehman and the Authority. These averments are reinforced by the numerous references to Marsteller in the report used in the grant process and the reference to Marsteller in the agreement between the Township and the Authority. Furthermore, appellees failed to produce the relevant portions of the three agreements calling for the construction of the improvements. In accordance with our standard of review when preliminary objections are granted and with only the allegations in the complaint before us, we conclude that Marsteller has standing against Lehman.

Order reversed and case remanded. Jurisdiction relinquished.

CAVANAUGH, J., files a dissenting Opinion.

CAVANAUGH, Judge,

dissenting:

I respectfully dissent and would transfer this case to Commonwealth Court. This court recently noted in Wilson v. School District of Philadelphia, 410 Pa.Super. 416, 418, 600 A.2d 210, 211 (1991) that:

[W]e retain the power and, indeed, the responsibility to determine whether retention of jurisdiction in this case is appropriate or, alternatively, whether the matter should be transferred to Commonwealth Court. Lara, Inc. v. Dorney Park Coaster Co., Inc., 369 Pa.Super. 27, 534 A.2d 1062 (1987). See also Pa.R.A.P. 741, 751.

42 Pa.C.S. § 762(a)(4)(i)(A) provides, in pertinent part, that the Commonwealth Court shall have exclusive jurisdiction over appeals from the Courts of Common Pleas concerning:

“All actions or proceedings arising under any municipality, institution district, public school, planning or zoning code or under which a municipality or other political subdivision may be formed or incorporated or where is drawn into question the application, interpretation, or enforcement of any:
(A) Statute regulating the affairs of political subdivisions, municipality and other local authorities or other public corporations or of the officers, employees or agents thereof acting in their official capacity

All parties to this appeal, with the exception of Lehman Engineering, are Cambria County or Barr Township agencies and authorities. The Cambria County Redevelopment Authority was organized to oversee and implement grants pursuant to the Urban Redevelopment Authority Law 35 Pa.C.S. § 1702 et seq. The Marsteller Community Water Authority is a political subdivision of Barr Township incorporated to provide water service to the village of Marsteller.

Federal and state grant funds were expended to upgrade a water system, the water system as upgraded does not comply with Department of Environmental Resources standards, and cannot be issued a permit. Appellant Marsteller Water Authority filed suit to recover those funds which were expended. The appellee defendants raised preliminary objections which challenged appellant’s standing to sue, which were granted, and this appeal followed.

The appellees have argued that the Water Authority lacks standing to sue for three reasons. First, they contend that the Water Authority is not a party to the contract and cannot sue as an incidental beneficiary. Secondly, they argue that any recovery could not be paid to Marsteller Water Authority because such payment would circumvent the regulatory framework for administering grants and allow the Authority to spend without supervision. Finally, it is alleged that allowing an authority to sue the township which created it would have a serious negative policy impact in the development of Pennsylvania’s municipal improvement projects.

Under these circumstances, I conclude that this case falls within the appellate jurisdiction of the Commonwealth Court. Section 762 is phrased in the disjunctive, allowing for alternate grounds for establishing jurisdiction. The first ground is when the proceeding arises under a planning or zoning code under which a political subdivision may be formed. Clearly, the subject matter of this appeal, whether Marsteller as a formed political subdivision has standing to sue up the chain of authority, falls within the ambit of the jurisdictional statute.

Additionally, appellees Barr Township and Cambria County have argued that Marsteller Water Authority may not administer the grant money, and that a water authority should not be allowed to sue the township under which it was formed. These both are issues relating to the interpretation of statutes “regulating the affairs of political subdivisions” and are best left to the Commonwealth Court and its particular expertise to decide. As this issue falls within that court’s portion of the “legislatively ordained division of labor”, Newman v. Thorn, 359 Pa.Super. 274, 518 A.2d 1231 (1986), I would transfer this case to the Commonwealth Court.

      . Although the parties are all governmental agencies (except Lehman), the case is properly here rather than in Commonwealth Court since the case was decided entirely on the basis of common law contract principles. Burgettstown-Smith Township Joint Sewage Authority v. Langeloth Townsite Co., 403 Pa.Super. 84, 588 A.2d 43 (1991).

        . Appellant filed a motion for production of the other documents, including the grants and agreements between Lehman and the Authority. That motion was pending at the time that preliminary objections were granted.

      . We note that Marsteller has alleged numerous, specific instances of misfeasance against both the Township and the Authority in administering the grant for Marsteller’s benefit. As the issue in this appeal involves only standing, we do not express an opinion on whether Marsteller has stated a cause of action against appellees.