author: WIEAND, Judge:

text:
    588 A.2d 1308
    John SMITH, Appellant, v. Robert E. WAGNER and Joseph Lagrew, d/b/a Lagrew and Company, and Marcia Lagrew Jones, a/k/a Marcia Jones Lagrew; Marcia Lagrew Jones, d/b/a Lagrew Printing Company; Joseph Lagrew; Richard Larsen; Marilyn Wagner, Shirlee Leete; Thomas W. Leete; Dana Erway; Virginia Erway; Muriel Pekarski, Appellees.
    Superior Court of Pennsylvania.
    Argued Oct. 18, 1990.
    Filed April 5, 1991.

      Don Bailey, Greensburg, for appellant.
    Robert E. Wagner, pro se.
    Jeffrey E. Leber, Dist. Atty., Coudersport, for Larsen, appellee.
    James T. Rague, Wellsboro, for Wagner and Pekarski, appellees.
    Before WIEAND, FORD ELLIOTT and HESTER, JJ.
   WIEAND, Judge:

In this civil action in which plaintiff alleged that he had been defamed as a result of a conspiracy to undermine his career in government, the trial court sustained preliminary objections in the nature of a demurrer to an amended complaint. After careful review of the averments of the amended complaint, we are constrained to reverse.

Pa.R.C.P. 1019(a) directs that a complaint shall state, “[t]he material facts on which a cause of action ... is based ... in a concise and summary form.” The rule

requires fact pleading. 2A Anderson, Pennsylvania Civil Practice § 1019.1 (1969). “The purpose of [1019(a) ] is to require the pleader to disclose the ‘material facts’ sufficient to enable the adverse party to prepare his case.” Landau v. Western Pennsylvania National Bank, supra [445 Pa. 217] at 225, 282 A.2d [335] at 339 [(1971)]. A complaint therefore must do more than “give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 [78 S.Ct. 99, 103, 2 L.Ed.2d 80] (1957) (statement made in reference to Fed.R.Civ.P. 8(a)). It should formulate the issues by fully summarizing the material facts. “Material facts” are “ultimate facts,” i.e,, those facts essential to support the claim. Evidence from which such facts may be inferred not only need not but should not be alleged____ Allegations will withstand challenge under § 1019(a) if (1) they contain averments of all of the facts the plaintiff will eventually have to prove in order to recover, 1 Goodrich-Amram, Procedural Rules Service § 1019(a)-2; D’Antona v. Hampton Grinding Wheel Co., 225 Pa. Superior Ct. 120, 310 A.2d 307 (1973), and (2) they are “sufficiently specific so as to enable defendant to prepare his defense,” Commonwealth Environmental Pollution Strike Force v. Jeanette, 9 Pa. Commonwealth Ct. 306, 308, 305 A.2d 774, 776 (1973).

Baker v. Rangos, 229 Pa.Super. 333, 349-350, 324 A.2d 498, 505-506 (1974). The amended complaint in the instant case contains one hundred eighteen (118) causes of action. The averments thereof are generally that the plaintiff, John Smith, the executive director of the Potter County Housing and Redevelopment Authority, was defamed by various publications of the Potter County True Press in which Smith was accused of being part of a conspiracy to control, mismanage and steal county funds. The True Press, it is alleged, was authored and published by the defendant, Robert E. Wagner, who encouraged his readers to boycott those business people in the community who were associated with Smith or other members of the Redevelopment Authority. The True Press was printed, it is alleged, by Joseph and Marcia Lagrew, d/b/a Lagrew Printing Company. The defamatory information, it is alleged further, was compiled by Wagner in cooperation with defendants, Richard Larsen, Marilyn Wagner, Shirlee and Thomas Leete, Dana and Virginia Erway, and Muriel Pekarski, all of whom aided in distributing the True Press to persons in Potter County. Additionally, Smith alleges that defamatory accusations were communicated to third persons verbally on three separate occasions by Wagner and Larsen. The conduct of the defendants, it is alleged, was undertaken maliciously and pursuant to a conspiracy to injure plaintiff and damage his career.

The averments of the complaint are not specific but refer generally to copies of the True Press which are attached to the complaint. Reviewing these news articles has been a monumental task. Plaintiffs style of pleading, not to be encouraged, may well have contributed to the trial court’s inability to comprehend fully the nature of Smith’s claim. Nevertheless, when one wades through the sea of information contained in Smith’s complaint, it is possible to find concealed therein a legally cognizable cause of action.

A preliminary objection in the nature of a demurrer tests the legal sufficiency of the complaint. Mudd v. Hoffman Homes for Youth, Inc., 374 Pa.Super. 522, 524, 543 A.2d 1092, 1093 (1988).

A demurrer admits every well-pleaded material fact set forth in the pleadings to which it is addressed as well as all inferences reasonably deducible therefrom, but not conclusions of law. Buchanan vs. Brentwood Federal Savings and Loan Association, 457 Pa. 135, 320 A.2d 117 (1974); Bordon v. Baldwin, 444 Pa. 577, 281 A.2d 892 (1971); Papieves v. Lawrence, 437 Pa. 373, 263 A.2d 118 (1970). In order to sustain the demurrer, it is essential that plaintiffs complaint indicate on its face that his claim cannot be sustained, and the law will not permit recovery. Hoffman vs. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970); Schott vs. Westinghouse Electric Corp., 436 Pa. 279, 259 A.2d 443 (1969); Papieves v. Lawrence, supra. If there is any doubt, this should be resolved in favor of overruling the demurrer. Clevenstein v. Rizzuto, 439 Pa. 397, 266 A.2d 623 (1970).

Wicks v. Milzoco Builders, Inc., 503 Pa. 614, 623, 470 A.2d 86, 91 (1983), quoting Gekas v. Shapp, 469 Pa. 1, 5-6, 364 A.2d 691, 693 (1976). See also: Creeger Brick v. Mid-State Bank, 385 Pa.Super. 30, 30-31, 560 A.2d 151, 152 (1989); McGaha v. Matter, 365 Pa.Super. 6, 8, 528 A.2d 988, 989 (1987).

To state a cause of action for defamation, a complaint must contain averments of fact which, if proven, would establish, (1) the defamatory character of the communication; (2) its publication by the defendant; (3) a reference to the plaintiff; (4) a recipient’s understanding of the communication’s defamatory character and its application to plaintiff; (5) special harm resulting from the publication; and (6) abuse of any conditional privilege. See: 42 Pa.C.S. § 8343(a). See also: Agriss v. Roadway Express, Inc., 334 Pa.Super. 295, 304, 483 A.2d 456, 461 (1984). Additionally, because appellant was a local public official, he must aver that defendants acted with “actual malice” ; that is, knowledge or reckless disregard of the falsity of the objectionable statements. New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Curran v. Philadelphia Newspapers, Inc., 497 Pa. 168, 439 A.2d 652 (1981).

In the instant case, the plaintiff-appellant was identified by name in the True Press and in Wagner and Larsen’s verbal communications as a liar, a thief and a crook. Such statements are, as a matter of law, capable of defamatory meaning. Corabi v. Curtis Publishing Co., 441 Pa. 432, 447, 273 A.2d 899, 907 (1971). The True Press was distributed among residents of Potter County who were familiar with plaintiff-appellant and who were capable of understanding the references to him. Wagner and Larsen also verbalized the defamatory statements to Potter County residents. Appellant was not required to plead special damages. Agriss v. Roadway Express, Inc., supra 334 Pa.Super. at 327, 483 A.2d at 474. The averments of actual harm to reputation, earning capacity and public humiliation were sufficient allegations of damage. Moreover, the averment that the defendants acted with the intent to destroy appellant’s career and business interests was sufficient, if proven, to defeat any qualified privilege which appellees may have had for their numerous publications. See: 42 Pa.C.S. § 8342. See also: Berg v. Consolidated Freightways, Inc., 280 Pa.Super. 495, 421 A.2d 831 (1980); Beckman v. Dunn, 276 Pa.Super. 527, 419 A.2d 583 (1980) (a privileged communication is one made upon a proper occasion, from a proper motive, in a proper manner and based upon reasonable and probable cause). Finally, appellant has explicitly averred “actual malice” on the part of each defendant with the sole and inexplicable exception of Wagner. When the averments against Wagner are read as a whole, however, the inference is inescapable that the True Press was authored with reckless disregard for the truth or falsity of the statements made.

We conclude, therefore, that the averments of the complaint are sufficient to state causes of action for defamation against the named defendant-appellees.

The averments of the complaint are also sufficient to state a cause of action for civil conspiracy. Such a cause of action requires (1) a combination of two or more persons acting with a common purpose to do an unlawful act or to do a lawful act by unlawful means or for an unlawful purpose; (2) an overt act done in pursuance of the common purpose; and (3) actual legal damage. Burnside v. Abbott Laboratories, 351 Pa.Super. 264, 277, 505 A.2d 973, 980 (1985); Gordon v. Lancaster Osteopathic Hospital Ass’n, 340 Pa.Super. 253, 267, 489 A.2d 1364, 1372 (1985); Aetna Electroplating Co. v. Jenkins, 335 Pa.Super, 283, 288, 484 A.2d 134, 137 (1984); Baker v. Rangos, supra 229 Pa.Super. at 351, 324 A.2d at 506; Raneri v. DePolo, 65 Pa.Commw. 183, 187, 441 A.2d 1373, 1376 (1983). “[I]f a plaintiff is unable to allege facts that are direct evidence of the combination and its intent, he must in order to comply with Rule 1019(a) allege facts that, if proved, will support an inference of the combination and its intent.” Baker v. Rangos, supra 229 Pa.Super. at 351, 324 A.2d at 506. It is not necessary, however, that the appellant aver specifically the time, place or date for a conspiratorial meeting or the precise date on which the conspiracy was entered. Baker v. Rangos, supra 229 Pa.Super. at 355, 324 A.2d at 507, citing Commonwealth v. Musser Forests, Inc., 394 Pa. 205, 146 A.2d 714 (1958).

Instantly, appellant averred that the conspiracy had become manifest in March, 1988, when the first edition of the True Press had been published and distributed. Contained in the newsletter itself was a statement that the intent was to undermine appellant’s economic interests and political career. While it is not improper to criticize politicians and local officials publicly in an attempt to improve government, it is improper to engage in a concerted effort to destroy someone’s reputation and career by publishing defamatory statements. Appellant’s averments of fact regarding defendants’ actions and intent, therefore, are sufficient to withstand demurrer. Whether appellant can prove that defendants acted to injure him must be determined from the evidence. For present purposes, it is enough that the averments of the complaint are sufficient. They are factual averments and not merely a single, vague and eonclusory statement of conspiracy. Compare: Landau v. Western Pennsylvania National Bank, 445 Pa. 217, 282 A.2d 335 (1971); Burnside v. Abbott Laboratories, supra, 351 Pa.Super. at 277-280, 505 A.2d at 980-982.

The trial court found the amended complaint deficient in its failure to aver actual damages resulting from the conspiracy. While it is true that in an action for civil conspiracy damages are awarded for the injury done by the conspiracy, P.L.E. Conspiracy § 26, it is not necessary that appellant plead specific amounts of out of pocket losses in order to survive a demurrer. Instantly, the damages which appellant pleaded were those resulting from the publication of defamatory falsehoods. Such damages customarily include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering. See: Gertz v. Robert Welch, Inc., 418 U.S. 323, 350, 94 S.Ct. 2997, 3012, 41 L.Ed.2d 789, 811 (1974). Thus, averments in the amended complaint that appellant suffered damage to his reputation, embarrassment and a substantial and permanent loss of earning capacity are sufficient to plead a cause of action for civil conspiracy.

We conclude, for the foregoing reasons, that the complaint filed by plaintiff-appellant was sufficient to withstand summary dismissal in response to the defendant-appellees’ preliminary objections.

Reversed and remanded for further proceedings. Jurisdiction is not retained.


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    588 A.2d 1312
    COMMONWEALTH of Pennsylvania, Appellant, v. Edward DOTZMAN, Appellee. (Four Cases)
    Superior Court of Pennsylvania.
    Argued Jan. 31, 1991.
    Filed April 5, 1991.

      Harriet R. Brumberg, Asst. Dist. Atty., Philadelphia, for Com., appellant.
    Owen Larrabee, Asst. Public Defender, Philadelphia, for appellee.

      Before CAVANAUGH, CHULLO and BROSKY, JJ.
   CAVANAUGH, Judge:

The principal issue in this case is whether the deadly weapon enhancement provisions set forth at 204 Pa.Code § 303.4 are unconstitutional as violative of the prohibition against double jeopardy. The court below, in imposing sentence on Edward Dotzman, the appellee, did not apply § 303.4 to the guideline sentence range for robbery in the first degree, where the offenses were committed at knife-point. The Commonwealth’s petition to modify the sentence was denied and it has appealed to this court.

Before reaching the main issue we must consider appellee’s contention that we should quash this appeal from the discretionary aspect of the sentence. Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987) allows an appeal from the discretionary aspect of a sentence, only where the appellant includes in his brief, immediately preceding argument in support of the challenge, a separate concise statement of the reasons for the allowance of the appeal under Pennsylvania Rule of Appellate Procedure 2119(f). The Commonwealth has complied with this requirement. However, under 42 Pa.C.S. § 9781(b), an allowance of appeal may be granted at the discretion of the appellate court only where it appears that there is a substantial question that the sentence imposed is not appropriate. In exercising that discretion the court may consider the trial court’s opinion and the record. Commonwealth v. Darden, 366 Pa.Super. 597, 531 A.2d 1144 (1987); Commonwealth v. Felix, 372 Pa.Super. 145, 539 A.2d 371 (1988).

We find that there is a substantial question that the sentence is not appropriate under the sentencing guidelines as the trial court held inapplicable the provisions of 204 Pa.Code § 303.4. See, Commonwealth v. Mattis, 352 Pa.Super. 144, 507 A.2d 423 (1980). Accordingly, the appeal is allowed.

The appellee entered a guilty plea to four counts of robbery (three counts of robbery as a first-degree felony and one count as a felony of the second degree), three counts of possession of an instrument of crime generally, two counts of theft, unlawful taking and disposition, and two counts of illegal use of computer.

The three robberies in this case which constituted felonies of the first degree all involved the use of a knife and basically followed a consistent modus operandi. The three offenses occurred within a short period of time. On January 28, 1989 the appellee entered the automobile of Daniel Hernandez which was stopped at a traffic light. He demanded money at knifepoint and fled with $250.00 and Mr. Hernandez’s driver’s license. On February 1, 1989 at 3:00 A.M., the appellee entered the vehicle of Robert Stein at Frankford Avenue and Harbison Street and demanded money at knifepoint. He observed a Philadelphia Saving Fund Society bank card in Mr. Stein’s wallet and ordered him to drive to an automatic teller machine where Mr. Stein was forced to withdraw cash and give it to the appellee. On February 5, 1989 the appellee was hitchhiking at about 3:50 A.M. when Thomas Mason stopped and offered him a ride. Once inside the vehicle, the appellee demanded Mason’s wallet at knifepoint. Again, the appellee observed a MAC card and ordered Mason to drive to a MAC machine where he forced him to withdraw $200.00. The appellee fled in Mason’s vehicle and took his MAC card with him. The next day, the appellee withdrew another $400.00 on Mr. Mason’s MAC card.

Three of the robberies were first-degree felonies, as the appellee intentionally put his victim in fear of immediate, serious bodily injury. Further, the offenses were committed with a deadly weapon which triggered the deadly weapon enhancement provisions of the sentencing guidelines, 204 Pa.Code § 303.4, 42 Pa.C.S. § 9721.

Since the court below determined that the appellee possessed a deadly weapon during the commission of the robberies described above, under § 303.4 “at least 12 months and up to 24 months confinement shall be added to the guideline sentence range which would otherwise have been applied.”

At sentencing the court below stated:

I have considered the deadly weapon enhancement. I find it should not be applied in this ease for this reason: That in each case, each of these robberies became a felony of the first degree because of the use of the weapon, which in no case was anyone harmed. The weapon was used to frighten people and force them to follow the defendant’s instructions to go to a bank and take out money. In each of these cases, if the weapon had not been used, the robbery would have risen no higher than a felony of the third degree. Thus, the use of the weapon has already been counted to raise the degree of the robbery and to raise the offense gravity score. To count the use of the weapon both to raise the offense gravity score and to add on years by the deadly weapon enhancement in my view, violates the very rules of construction of the Sentencing Commission, which have held that you may not count a zero prior record score as a mitigating circumstance, because it would be to count it twice. In my view, where the use of the weapon is itself a factor that raises the crime to a higher offense gravity score, then to also add the weapon enhancement is to punish the defendant twice for the same conduct. (Emphasis added.)

The court below, in its opinion, stated: “The deadly weapons enhancement section of the Sentencing Guidelines is not a mandatory requirement such as a mandatory sentence. The Court need not impose the deadly weapons enhancement guidelines but need only consider them.” It is clear from the record, however, that the court in imposing sentence did not take into consideration the deadly weapon enhancement provisions of § 303.4. The court believed the section should not be applied as it would result in a double penalty for the same offense. This conclusion is fortified by the court’s opinion, wherein it is stated: “To further enhance the sentence on the FI Robbery bills, because he used a weapon, would be to sentence him twice for possessing an instrument of crime.”

The constitutional protection against double jeopardy precludes one from being punished twice for the same offense. However, the court misinterpreted § 303.4 as the Act does not provide for sentencing the defendant twice for the same offense, but rather calls for an increase in the guideline sentence range where a deadly weapon has been used. The court’s reasoning that the appellee would not have been found guilty of robbery as a first degree felony unless he had used a deadly weapon, and that the deadly weapon enhancement provision is inapplicable, as involving double jeopardy, is fallacious. We note initially that robbery to be a first-degree felony does not necessarily require the use of a deadly weapon. Secondly, where a deadly weapon is used, the deadly weapon enhancement provision is triggered but this is not a double punishment but only the legislative imposition of the requirement that the guideline sentence range be increased.

The court below incorrectly stated that “the deadly weapon enhancement section is not a mandatory requirement, such as a mandatory sentence.” The Code requires that where a deadly weapon is used “at least 12 months and up to 24 months confinement shall be added to the guideline sentence range____” (Emphasis added.) This is clearly a mandate of the legislature to which the court below did not adhere. Appellee argues that: “Because sentencing courts have wide discretion, and the instant sentence was imposed with scrupulous attention to the Sentencing Code and knowledge of the correct enhanced guidelines ranges, the discretionary departure from the enhancement, if found to be legally incorrect, is merely harmless error.” This argument is flawed as it is based on the incorrect premise that sentence was “imposed with scrupulous attention to the Sentencing Code.” In actuality, the court determined that the deadly weapon enhancement provision could not be applied.

§ 303.4 does not conflict with the prohibition against double jeopardy. The double jeopardy clause “protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” Grady v. Corbin, — U.S. —, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), citing, North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) (footnotes omitted.) See also, Commonwealth v. Kemmerer, 526 Pa. 160, 584 A.2d 940 (1991). An increase in the guideline sentence range does not constitute multiple punishment for the same offense. Commonwealth v. Brown, 402 Pa.Super. 369, 587 A.2d 6 (1991). The guidelines and the ranges set forth therein do not mandate the imposition of a minimum sentence. As noted in Commonwealth v. Zorn, 397 Pa.Super. 231, 580 A.2d 8, 12, footnote 5 (1990): “Under the guidelines, the judges have discretion, whereas under the mandatory sentencing provisions, they do not____” The court below noted that a sentencing court “need not impose the deadly weapon enhancements guideline but need only consider them.” While stating this, it is clear that the court did not consider the enhancement provisions as it stated they did not apply because their application would result in double punishment for the same offense. The appellee’s argument that the court below fully considered both “the sentencing guidelines, including the deadly weapon enhancement” is devoid of merit. The court below made it clear that the enhancement provisions were inapplicable and would not be applied to the first-degree felony robbery convictions.

In Commonwealth v. Drumgoole, 341 Pa.Super. 468, 491 A.2d 1352 (1985) the defendant was convicted of robbery, aggravated assault and criminal conspiracy. A gun was used in the robbery. At sentencing:

the trial court, however, determined that the deadly weapon enhancement provisions of the guidelines were not applicable. This was error. The sentencing court has not been given discretion to determine whether or not consideration should be given to the fact that a deadly weapon was used in calculating the guideline sentence ranges. Although the trial court is vested with the right, in the proper exercise of its discretion, to sentence outside the guidelines, it is imperative that before making that determination the correct starting point in the guidelines be determined. (Emphasis in original.)

341 Pa.Super. at 474, 491 A.2d at 1355.

In reviewing a judgment of sentence to which the sentencing guidelines have been applied, we may remand where the trial court applied the guidelines erroneously. Commonwealth v. Johnakin, 348 Pa.Super. 432, 502 A.2d 620 (1985). As the court did in Drumgoole, supra, we must remand for resentencing since the court below improperly excluded § 303.4 in determining the guideline sentence range.

In Commonwealth v. Septak, 359 Pa.Super. 375, 518 A.2d 1284 (1986) we remanded for resentencing, as the trial court refused to apply the deadly weapon enhancement provisions of § 303.4. The reason for refusing to apply the section did not rise to a constitutional challenge but was based on the fact that the defendant was not put on notice that the section would apply. We held that the defendant had adequate notice as he knew that his accomplice had a gun. In a companion case, Commonwealth v. Pokorny, 360 Pa.Super. 384, 520 A.2d 511 (1987), we also vacated the judgment of sentence and remanded for resentencing as the trial court erroneously failed to apply the deadly weapon enhancement provision of the sentencing code. In that case, the reason for not applying the provision was that the Commonwealth did not state during the guilty plea hearing that the deadly weapon enhancement section would be sought at sentencing for a crime in which the defendant possessed a gun. While neither case involved a constitutional challenge to § 303.4, they determined beyond peradventure that § 303.4 must be applied where a crime is committed by one in possession of a deadly weapon.

The trial court has no discretion as to whether it will apply § 303.4 and add at least twelve months and up to twenty-four months confinement to the guideline sentence range when the defendant possesses a deadly weapon during the commission of an offense. It must do this. The court’s discretion comes into play in imposing sentence, only after it has determined the proper sentencing guideline range.

Judgment of sentence vacated and case remanded for resentencing. See Commonwealth v. Drumgoole, supra.

Panel jurisdiction is relinquished. Jurisdiction of the Court is Relinquished.

      . The Fifth Amendment of the United States Constitution provides:
      "... nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb: ____” This provision is applicable to the states through the Fourteenth Amendment of the Constitution. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) and Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). See also, Commonwealth v. Burkhardt, 526 Pa. 341, 586 A.2d 375 (1991.)
      The constitutional protection against double jeopardy is also guaranteed by the Constitution of Pennsylvania, Article I, Section 10.

      . 204 Pa.Code § 303.4 provides in part:
      § 303.4 Deadly weapon enhancement
      (a) When the court determines that the defendant possessed a deadly weapon, as defined in 18 Pa.C.S. § 2301 (relating to definitions), during the commission of the current conviction offense; at least 12 months and up to 24 months confinement shall be added to the guideline sentence range which would otherwise have been applicable.
      18 Pa.C.S. § 2301 defines a deadly weapon as:
      "Deadly weapon." Any firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death or serious bodily injury, or any other device or instrumentality which, in the manner in which it is used or intended to be used, is calculated or likely to produce death or serious bodily injury. (Emphasis added.)

      . A felony of the first degree is one which is so designated in the Crimes Code as carrying a maximum sentence of imprisonment of more than ten years. 18 Pa.C.S. § 106(b)(2).
      18 Pa.C.S. § 1103 provides:
      A person who has been convicted of a felony may be sentenced to imprisonment as follows:
      (i) In the case of a felony of the first degree, for a term which shall be fixed by the court at not more than 20 years.
      Robbery is defined in 18 Pa.C.S. § 3701 as follows:
      (a) Offense defined.—
      (1) A person is guilty of robbery if, in the course of committing a theft, he:
      (i) inflicts serious bodily injury upon another;
      (ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury;
      (iii) commits or threatens immediately to commit any felony of the first or second degree.

      . In Pennsylvania, there is a strong presumption in favor of the constitutionality of all lawfully enacted legislation. Commonwealth v. Hatfield, 397 Pa.Super. 90, 579 A.2d 945 (1990).

      . That the total sentence imposed fell within the mitigated range of the enhanced sentencing guidelines is of no moment where the court ruled that § 303.4 is inapplicable.

      . Commonwealth v. Johnakin, supra, held that the trial court was required to apply the deadly weapon enhancement provision of the guidelines as the defendant had stabbed her victim in the course of a robbery.


author: MONTEMURO, Judge:

text:
    589 A.2d 213
    John F. KASKIE, Individually and as Administrator of the Estate of John Charles Kaskie, Deceased, and Mary Margaret Kaskie, Individually, Appellants, v. James WRIGHT, M.D., Lawrence Sherman, M.D., John Dietrick, M.D., Henry Hood, M.D., Kenneth E. Quickel, Jr., M.D., Thomas R. Royer, M.D., F. Kenneth Ackerman, Jr., M.D., Geisinger Medical Center, Geisinger Clinic and Geisinger Foundation, Appellees.
    Superior Court of Pennsylvania.
    Argued Dec. 13, 1990.
    Filed Feb. 13, 1991.
    Reargument Denied April 29, 1991.

      Thomas B. Rutter, Philadelphia, for appellants.
    John B. Consevage, Harrisburg, for appellees.
    Before MONTEMURO, TAMILIA and HOFFMAN, JJ.
   MONTEMURO, Judge:

This is an appeal from an order granting appellees’ motion for summary judgment in a wrongful death and survival action predicated on medical malpractice.

On July 2, 1981, appellants’ decedent, their minor son, was severely injured when he was struck by an automobile driven by an intoxicated driver. The child was taken to appellee Geisinger Medical Center and delivered to the care of Dr. David Rees Stewart, who along with Drs. James Wright and Lawrence Sherman performed surgery. On July 4 the boy’s brain ceased to function as the result of a reduction in intracranial blood flow; on July 10, he suffered cardiac arrest and died.

Appellants’ commenced the instant wrongful death and survival action on June 10, 1987. The complaint averred that their son had died as the result of negligence on the part of Dr. Stewart and sought damages therefor. Appellants also claimed that informed consent was lacking, as they had not been told prior to permitting the operation on their son that Dr. Stewart was an alcoholic and unlicensed to practice medicine in Pennsylvania. Their ignorance of these matters, of which they claim only to have become aware through newspaper coverage of an unrelated case, is proffered in explanation of their delay in instituting suit.

Appellees moved for summary judgment on the basis that the action is barred by the two year statute of limitations applicable to wrongful death and survival actions, 42 Pa. C.S.A. § 5524(2). The trial court agreed, and this appeal followed.

Appellants sole claim on appeal is that the statute of limitations is tolled by what is characterized as appellees’ fraudulent concealment of Dr. Stewart’s addiction and licensure status at the time of the decedent’s death.

In reviewing an order granting summary judgment our function is to determine whether issues of triable fact exist. Bobb v. Kraybill, 354 Pa.Super. 361, 511 A.2d 1379 (1986). Summary judgment is proper only in cases free and clear from doubt, and for our review we accept as true all well-pleaded facts, giving the plaintiff the benefit of all reasonable inferences from the facts. Roland v. Kravco, Inc., 355 Pa.Super. 493, 513 A.2d 1029 (1986).

Zackhery v. Crystal Cave Company, 391 Pa.Super. 471, 473-474, 571 A.2d 464, 465 (1990). See also Pa.R.C.P. 1035(b).

There is no dispute here that the action was commenced beyond the two year limitations period set by 42 Pa.S.C.A. 5524(2). Moreover, as appellees point out, the discovery rule, which extends periods of limitation where the existence of a cause of action cannot reasonably be discovered within the time prescribed by the applicable statute, does not apply to wrongful death and survival actions in Pennsylvania. Pastierik v. Duquesne Light Company, 514 Pa. 517, 526 A.2d 323 (1987). Appellants contend, however, that appellees are estopped from advancing the statute as a defense, arguing that the statute is tolled by appellees’ failure to provide them with information which, had it been in their possession at the time of their son’s death, would have led them to file suit earlier. This failure is characterized as fraudulent concealment which in turn resulted in lack of informed consent.

Appellants correctly rely upon Molineux v. Reed, 516 Pa. 398, 532 A.2d 792 (1987), to define the conditions under which such estoppel may be said to exist.

Where, “through fraud or concealment, the defendant causes the plaintiff to relax his vigilance or deviate from his right of inquiry,” the defendant is estopped from invoking the bar of the statute of limitations. Schaffer v. Larzelere, 410 Pa. 402, 405, 189 A.2d 267, 269 (1963). Moreover, defendant’s conduct need not rise to fraud or concealment in the strictest sense, that is, with an intent to deceive; unintentional fraud or concealment is sufficient. Walters v. Ditzler, 424 Pa. 445, 227 A.2d 833 (1967); Nesbitt v. Erie Coach Company, 416 Pa. 89, 204 A.2d 473 (1964). Mere mistake, misunderstanding or lack of knowledge is insufficient, however, Schaffer v. Larzelere, supra; and the burden of proving such fraud or concealment, by evidence which is clear, precise and convincing, is upon the asserting party. Nesbitt v. Erie Coach Company, supra.

Id., 410 Pa. at 402, 532 A.2d at 794.

In general, to qualify as grounds on which a claim that an action is time barred may be equitably estopped, the conduct complained of must be “something amounting to an affirmative inducement to plaintiff to delay bringing the action.” Gravinese v. Johns-Manville Corp., 324 Pa.Super. 432, 442, 471 A.2d 1233, 1238 (1984) (emphasis added).

The trial court, in examining the case before it, determined that:

The alleged medical negligence of Dr. Stewart which caused the death was or should have been apparent when the minor decedent expired in July, 1981. If officials of defendant affirmatively concealed facts which related to that negligence, then the two year statute might be tolled, but, even if they concealed Dr. Stewart’s alcoholism and non-licensure, there has been demonstrated no causal connection between those facts and the death of the minor.

Trial Court Opinion at 4.

Insofar as negligence is concerned, we are constrained to agree with the trial court’s assessment. Although appellants argue that the nexus between the doctor’s shortcomings and the child’s death was demonstrated in their complaint and affidavit, and bourne out by deposition testimony given in the companion case whose revelations gave rise to the instant action, our review of those documents yield no such connection. What is proffered as cause and effect in the complaint and affidavit is merely the same conclusory language which might appear in any claim of medical malpractice. The depositions are not included in the official record on this case and are not before us. Ritter v. Ritter, 359 Pa.Super, 12, 518 A.2d 319 (1986); General Accident Fire and Life Assurance Corp., Ltd. v. Flamini, 299 Pa.Super. 312, 445 A.2d 770 (1982); Pa.R.App.P.1921.

Since, as Molineux makes clear, mere lack of information is not sufficient to make out a case for fraudulent concealment, the line between bare information and material facts must be drawn where the missing data is directly germane to the delay in advancing the claim. As this court ruled in Levenson v. Souser, 384 Pa.Super. 132, 557 A.2d 1081 (1989), alloc. dn. 524 Pa. 621, 571 A.2d 383, the patient, or in this case his representatives, does not need to know the precise extent of the alleged injuries before the statute of limitation on informed consent will run. Here appellants knew the child died. At that time medical negligence would have been apparent and/or could have been discovered. This is not a situation where a condition caused by negligence emerges slowly. Appellants’ apparent confidence in Dr. Stewart did not absolve them of the responsibility to be diligent concerning the treatment provided, id., nor did any action of appellees divest appellants of their right of inquiry concerning the death of their child. Thus, the trial court was correct in its dismissal of appellants’ wrongful death and survival action.

When examining the assertion of lack of informed consent, however, our inquiry alters: the question becomes whether the patient was made aware of all material risks which are collateral to a given procedure, including, at least, “the nature of the operation to be performed, the seriousness of it, the organs of the body involved, the disease or incapacity sought to be cured, and the possible results.” Gray v. Grunnagle, 423 Pa. 144, 166, 223 A.2d 663, 674 (1966) (quoting R.E. Powell, Consent to Operative Procedures, 21 Md.L.Rev. 189 (1966)). Absent consent based on such awareness, the treating physician is considered to have committed a technical battery, and “is liable for any injuries resulting from the invasion, regardless of whether the treatment was negligently administered.” Cooper v. Roberts, 220 Pa.Super. 260, 265, 286 A.2d 647, 649 (1971), applying the rule in Gray, supra. See also, Gouse v. Cassel, 385 Pa.Super. 521, 561 A.2d 797 (1989), alloc. gr. 524 Pa. 608, 569 A.2d 1367; Sagala v. Tavares, 367 Pa.Super. 573, 533 A.2d 165 (1987); Neal by Neal v. Lu, 365 Pa.Super. 464, 530 A.2d 103 (1987).

Obviously, traditional analysis is somewhat removed from the facts at hand, as it is not the particular procedure performed upon the decedent which is at issue at here, but rather some alleged characteristics of the person performing it. The question then becomes whether the doctrine of informed consent can be expanded to include information other than that which concerns medical treatment by surgical procedure.

Appellant has supplied no precedential basis for expansion. To the contrary, where the suggestion has been made that the informed consent doctrine should subsume other aspects of medical treatment, this court has ruled otherwise. In Boyer v. Smith, 345 Pa.Super. 66, 497 A.2d 646 (1985), a panel of this court held that the doctrine could not be expanded to include the administration of therapeutic drugs, as this would require transformation of the fundamental nature of the informed consent doctrine. In Pennsylvania, consent to treatment is a contractual arrangement between the parties under which physical contact with the patient’s body must be agreed to, and no negligence is necessary for recovery. Drug therapy, on the other hand, involves no such contact, and failure to provide the patient with information concerning it would therefore constitute negligence. Recovery would accordingly be available under a malpractice theory. The Boyer panel concluded that contractual concepts applied to medical treatment cases were not to be brought to bear in situations other than those involving surgical or operative procedures, i.e., where there must be a “touching,” because our supreme court in Gray, supra, by specifically relating the informed consent doctrine to assault and battery, contemplated no other application.

Although the instant case does involve a “touching,” it fails to meet the more critical aspect of the Boyer criteria: there is no allegation here that appellants were uninformed about the particular procedures their son underwent irrespective of the surgeon performing them. Like the court in Boyer, we too refuse to expand the informed consent doctrine to include matters not specifically germane to surgical or operative treatment. To do so, where the absent information consists of facts personal to the treating physician, extends the doctrine into realms well beyond its original boundaries. Nor are limitations easily definable. Are patients to be informed of every fact which might conceivably affect performance in the surgical suite? Moreover, here, no clear nexus has even been established between injury and lack of knowledge.

Matters such as personal weaknesses and professional credentials of those who provide health care are the responsibility of the hospitals employing them, the professional corporations who offer their services, or the associations which are charged with oversight. Their failure to fulfil their obligations in this regard becomes a matter of negligence, and it is from them that recovery must be sought.

Given our determination that appellants have stated no legal basis for recovery, we find that the trial court properly granted summary judgment as to the informed consent claim.

Judgment affirmed.

      . Dr. Stewart died during the pendency of the action. By agreement of the parties the proceedings against him and his estate for malpractice were severed.

      . Appellants credit the trial court with having ruled in their favor as to the existence of fraudulent representation. A careful reading of the trial court’s Opinion proves otherwise.

      . There are also letters attached as exhibits to appellant’s brief which are purportedly from physicians involved with the companion case in some capacity. By Order of October 17, 1990, these materials have been stricken as dehors the record.