author: BLACK, P.J.,

text:
    Hlatky v. Jaeger

      Clifford E. Haines, for plaintiffs.

      James A. Doherty, for defendants.
    December 17, 2007
   BLACK, P.J.,

This is a medical malpractice case brought by the plaintiffs, John Hlatky and Rosemarie Hlatky, arising from medical care rendered to Mrs. Hlatky by the defendant Randy Jaeger M.D., an orthopedic surgeon employed by the defendant Lehigh Valley Orthopedics. Dr. Jaeger operated on Mrs. Hlatky’s hip in October and November 2000 after she fractured it in a fall at work. Prior to trial the plaintiffs discontinued their claims against various co-defendants.

The plaintiffs’ case against Dr. Jaeger and Lehigh Valley Orthopedics was tried to jury verdict from March 27, 2007, through April 4, 2007. The jury found in favor of the defendants. The plaintiffs have timely filed a motion for post-trial relief, which is now before the court for disposition.

The plaintiffs’ post-trial motion asserts (1) that the jury’s verdict was against the weight of the evidence; (2) that the court erred in permitting Dr. Leo Scarpino to be qualified as an expert during the trial; and (3) that the court erred in admitting into evidence a nurse’s note that Sacred Heart Hospital (not the current defendants) had failed to produce to the plaintiffs’ counsel during pretrial discovery. For the reasons stated below, we find no merit in the plaintiffs’ motion, and it is therefore denied.

FACTUAL BACKGROUND

On October 27, 2000, the plaintiff Rosemarie Hlatky was working as a sleep technologist at Sacred Heart Hospital when she fell over a housekeeping cart and struck the floor, causing a fracture to the head of her left femur. The defendant Randy Jaeger M.D., the hospital’s on-call orthopedic surgeon, was called to assess Mrs. Hlatky’s condition. He determined that her fracture required surgery, specifically that it be set with pins and screws. The next day, October 28,2000, Mrs. Hlatky was taken to the operating room at Sacred Heart Hospital where Dr. Jaeger performed the repair. Post-operative x-rays were interpreted by a radiologist as showing possible evidence of a surgical screw protruding beyond the femoral head into the acetabulum or hip socket. However, after reviewing the x-ray films, Dr. Jaeger disagreed with this interpretation and determined that the surgical screws were appropriately placed.

On November 1,2000, Mrs. Hlatky was moved to the rehabilitation floor of the hospital, which was then run by Moss Rehabilitation. Mrs. Hlatky had been instructed by Dr. Jaeger to begin rehabilitation of her hip by putting weight on it as tolerated. She underwent a course of physical therapy under the direction of Moss Rehabilitation. When she experienced pain that seemed disproportionate to the injury and surgery, additional radio-graphic studies were performed, including a CAT scan of the hip on November 8, 2000. The CAT scan showed that one or more of the screws was in fact protruding beyond the femoral head into Mrs. Hlatky’s hip joint. As a result, revision surgery was required.

On November 10, 2000, Mrs. Hlatky was readmitted to Sacred Heart Hospital where Dr. Jaeger performed revision surgery of her hip fracture the following day. During this procedure Dr. Jaeger replaced all the screws with smaller ones to address the protrusion that had been causing Mrs. Hlatky’s considerable pain. Mrs. Hlatky was then readmitted to Moss Rehabilitation for additional physical therapy and was discharged to home on December 9, 2000.

Following the revision surgery, Mrs. Hlatky’s pain did not abate. After several months of ongoing out-patient rehabilitation Mrs. Hlatky was seen by Dr. Leo Scarpino, also an orthopedic surgeon and Dr. Jaeger’s partner. Dr. Scarpino recommended a hip replacement. As a result, Mrs. Hlatky was readmitted to Sacred Heart Hospital on April 18,2001, for hip replacement surgery. Because of damage to the hip socket observed by Dr. Scarpino during the surgery, he found it necessary to do a total hip replacement.

Despite the total hip replacement, Mrs. Hlatky continues to experience considerable pain. This pain has continued even though she underwent a second hip replacement performed in Philadelphia by William Hozack M.D., in September 2005.

STANDARD OF REVIEW

In Harman ex rel. Harman v. Borah, 562 Pa. 455, 756 A.2d 1116 (2000), our Supreme Court re-examined the appropriate standard of review of a motion for a new trial at both the trial court and appellate levels. When responding to a request for a new trial, the trial court must follow a two-step process. Id. at 467, 756 A.2d at 1122. The trial court must first determine whether one or more errors occurred during the trial. Id. If the trial court concludes that an error occurred, the court must then determine whether the error is a sufficient basis for granting a new trial. Id. A new trial is not warranted merely because some irregularity occurred during the trial or because another trial judge would have ruled differently. The moving party must demonstrate prejudice resulting from the mistake. Id.

DISCUSSION

I. The Jury Verdict and the Weight of the Evidence

In their motion for post-trial relief the plaintiffs allege that the jury’s verdict was against the “great weight of the evidence” and request that it be set aside with judgment to be entered in favor of the plaintiffs. In their brief, the plaintiffs limit their request to a new trial.

The trial court has inherent power to grant a new trial and a duty to do so when the court believes that the verdict was against the weight of the evidence and resulted in a miscarriage of justice. Thompson v. City of Philadelphia, 507 Pa. 592, 493 A.2d 669 (1985). However, a new trial is not to be granted unless the evidence supporting the verdict is so inherently improbable or at variance with admitted or proven facts or with ordinary experience as to render the verdict shocking to the court’s sense of justice. Fogg v. Paoli Memorial Hospital, 455 Pa. Super. 81, 686 A.2d 1355 (1996); Houseknecht v. Walters, 404 Pa. Super. 85, 590 A.2d 20 (1991). A new trial is not to be granted merely because the jury could have drawn different conclusions or inferences. Sundlun v. Shoemaker, 421 Pa. Super. 353, 361, 617 A.2d 1330, 1334-35 (1992).

In this case, substantial evidence was presented by both sides. The case was well-tried. Although the jury could have reached a different conclusion from the evidence presented, we cannot say that the evidence supporting the verdict is inherently improbable, at variance with admitted or proven facts, or at variance with ordinary experience, so as to shock our sense of justice.

The evidence indicated clearly that the fracture of Mrs. Hlatky’s femoral head did not fuse after the initial surgery. However, the plaintiffs’ own expert witness, Dr. Herbert Ratner, testified that a hip fracture such as this has a 20 percent chance of a non-union, even with the best of medical care.

The evidence also indicated that at least one of the three screws used by Dr. Jaeger in his initial surgical repair penetrated through the femoral head. The plaintiffs do not contend that this was negligence per se, but argue that Dr. Jaeger should have recognized this protrusion sooner and taken Mrs. Hlatky back to surgery earlier than he did. However, the penetration of a screw was not confirmed until the CAT scan of November 8,2000, and Mrs. Hlatky was taken to surgery on November 10,2000, two days thereafter.

The plaintiffs argued to the jury that Dr. Jaeger should have acted sooner because of a report from Dennis Splain D.O., a radiologist for the hospital, shortly after the initial surgery. Dr. Splain’s report on the post-surgery x-rays indicated that one of.the pins could possibly be protruding beyond the femoral head. However, Dr. Jaeger looked at the films himself and concluded that they did not demonstrate any pin protrusion. Dr. Prody Ververeli, who testified as an expert witness for the defense, stated that the pin protrusion could not be confirmed prior to the November 8,2000 CAT scan because only the CAT scan provided a three-dimensional vision of the actual screws. According to Dr. Ververeli, the prior x-rays were inconclusive and did not allow a definitive determination regarding the existence of pin protrusion. Once the pin protrusion was confirmed by the CAT scan of November 8,2000, Dr. Jaeger ordered Mrs. Hlatky to surgery, which was performed on November 10,2000. This was within the two or three days that Dr. Ververeli opined was the standard of care to address such a problem. Dr. Ververeli agreed that prior to the November 8, 2000 CAT scan there was nothing that “mandates immediate revision surgery by an orthopedic surgeon such as Dr. Jaeger, treating a patient such as Mrs. Hlatky.”

Although the plaintiffs argue that Dr. Ververeli’s testimony supported their position, we find just the opposite. In the course of his testimony, he indicated no less than six times that he believed to a reasonable degree of medical certainty that Dr. Jaeger provided reasonable care to the plaintiff consistent with the standard of care for the type of medical issues presented.

For these reasons, the jury finding that Dr. Jaeger was not negligent was not against the weight of the evidence so as to justify a new trial.

II. The Testimony of Dr. Leo Scarpino

The plaintiffs contend that the court erred in allowing Dr. Leo Scarpino, an orthopedic surgeon, to be qualified as an expert witness. In their pretrial memorandum, the defendants had listed Dr. Scarpino as a witness, but he was not identified as an expert. Plaintiffs’ counsel deposed Dr. Scarpino prior to trial and was aware of his qualifications as an orthopedic surgeon. Plaintiffs’ counsel also examined Dr. Scarpino’s office notes regarding the treatment that he rendered to Mrs. Hlatky, and was aware of his findings and of the treatment he provided. Moreover, on the first day of trial the plaintiffs called Dr. Scarpino as their witness and elicited from him his medical background and his treatment of Mrs. Hlatky. Plaintiffs’ counsel did not formally qualify Dr. Scarpino as an expert, but did ask him questions that required him to provide information based on his experience as an orthopedic surgeon.

Later, on the fourth day of trial, Dr. Scarpino was again called as a witness, this time by the defendants on their side of the case. Dr. Scarpino was again asked questions regarding the care and treatment he had rendered to Mrs. Hlatky following Dr. Jaeger’s surgery. Defendants’ counsel then posed this question to Dr. Scarpino:

“Very well. I am going to ask you to assume that this jury was told yesterday by Dr. Ratner that a hip fracture such as this has a 20 percent chance of a non-union. Doctor, is that consistent with your understanding of the medicine of this hip fracture?”

Plaintiffs’ counsel immediately objected to this question, and the objection was sustained on the ground that Dr. Scarpino had not been qualified as an expert. Defendants’ counsel then proceeded to qualify the witness. Plaintiffs’ counsel then further objected on the ground that Dr. Scarpino had not been identified as an expert in the defendants’ pretrial memorandum. In response, defendants’ counsel stated that the witness was merely going to “offer an opinion regarding his care of the treatment of the procedures — or excuse me — of the conditions that were presented to him.” The objection of plaintiffs’ counsel was then overruled since Dr. Scarpino had been listed as a witness and had been called by the plaintiffs themselves previously on the care and treatment of the conditions presented to him.

Shortly afterwards, Dr. Scarpino was asked by defendants’ counsel “What is your experience — what is your understanding of the failure rate, the non-union rate, of fractures of this type?” Again plaintiffs’ counsel objected, but qualified his objection. He indicated that if the question was limited to Dr. Scarpino’s individual experience, then he had no objection. Defendants’ counsel then limited his question to the doctor’s own experience. He asked, “What is your experience, Doctor?”, to which Dr. Scarpino answered “Approximately 20 to 25 percent.”

This answer happened to be virtually the same answer given by Dr. Herbert Ratner, the plaintiffs’ expert witness. On the plaintiffs’ side of the case, Dr. Ratner had testified that in cases of this nature there was a 20 percent chance of non-union even if the surgery by Dr. Jaeger had been performed in accordance with the standard of care. Therefore, regardless whether Dr. Scarpino should have been permitted to give this opinion, it could not possibly have prejudiced the plaintiffs’ case because it confirmed and validated the opinion of the plaintiffs’ own expert witness.

The plaintiffs argue that regardless of the substance of Dr. Scarpino’s testimony, the mere fact that the court allowed him to be qualified as an expert in the field of orthopedic surgery lent greater importance to his testimony than his testimony might otherwise have had. We find this argument unconvincing. The plaintiffs themselves, as noted above, called Dr. Scarpino to the stand and elicited from him his background as an orthopedic surgeon. It is inconceivable that the trial judge’s pronouncement that Dr. Scarpino was qualified as an expert in the field of orthopedic surgery caused any change in the jury’s perception of his expertise. The plaintiffs have been unable to identify any opinion that Dr. Scarpino offered that was prejudicial to their case, other than his description of his care and treatment of the patient, which was thoroughly explored by the plaintiffs in their pretrial deposition. Thus, there was no conceivable surprise or prejudice to the plaintiffs in the qualification of Dr. Scarpino. See Feingold v. SEPTA, 512 Pa. 567, 517 A.2d 1270 (1986); and Royster v. McGowen Ford Inc., 294 Pa. Super. 160, 168, 439 A.2d 799, 804 (1982) (prejudice to the complaining party must be shown).

III. The Nurse’s Note

The nurse’s note, defendants’ exhibit 16, presented a complicated issue at trial. The note, which was part of the medical records of Sacred Heart Hospital pertaining to Mrs. Hlatky, indicated that on November 1,2000, three days after her initial surgery, she had complained of left hip pain after “bumping” her hip on a door handle.

At the beginning of the trial the parties stipulated to the authenticity and admissibility of the medical records of Sacred Heart Hospital. However, in the course of the trial, after reference was made to this nurse’s note, plaintiffs’ counsel stated that he had never received from the hospital the page in its records that contained this note. According to plaintiffs’ counsel, as part of the pretrial discovery he had obtained what he assumed was a full set of the medical records from Sacred Heart Hospital, but that one page of this voluminous record, i.e., the nurse’s note about a “bumping” incident, was never provided to him.

Reference to the note was first made on the fourth day of the trial when Dr. Scarpino was called as a witness by the defense. Dr. Scarpino stated on his direct examination:

“She (Mrs. Hlatky) had bumped her hip on a doorknob and they were concerned about increased pain. I ordered an x-ray of the hip at that point in time. I reviewed it. The x-ray showed that there was no change in position of the fracture, and then she was transferred to Moss Rehab.”

At this point defendants’ counsel produced the nursing note and intended to ask Dr. Scarpino about it for the purpose of explaining why he had ordered the x-ray of Mrs. Hlatky’s hip at that point in time. Plaintiffs’ counsel stated that he had never seen the note before, whereupon the court ordered a side-bar conference. In the side-bar conference plaintiffs’ counsel represented to the court that he had not been provided with the page from the Sacred Heart Hospital records containing the note despite his discovery request to Sacred Heart Hospital requesting all records pertaining to Mrs. Hlatky.

The note, therefore, presented a troubling dilemma for the court. On the one hand, the plaintiffs were undoubtedly prejudiced by not having received this note in advance of trial. On the other hand, the defendants had nothing to do with the fact that this note was not supplied to plaintiffs’ counsel by Sacred Heart Hospital, and the defendants would have been prejudiced if they were denied an opportunity to defend themselves with relevant evidence. After review of the note it was evident that circumstances surrounding the incident and the severity of the incident were unknown. We concluded, therefore, that the trustworthiness of the nurse’s note had not been established, and we excluded the note from evidence on that basis.

We had expected plaintiffs’ counsel to move for a mistrial when the discrepancy in the Sacred Heart Hospital records was disclosed, and we would surely have granted such a motion. However, plaintiffs’ counsel did not move for a mistrial. A trial court may grant a mistrial sua sponte, but only in exceptional circumstances where there is a manifest necessity. That threshold was not reached here.

The issue of the nurse’s note resurfaced on the next day of the trial, day five, during the cross-examination of Dr. Jaeger by plaintiffs’ counsel. Dr. Jaeger had just testified that the screws he placed in Mrs. Hlatky’s femoral head could have moved forward after surgery because of an inadequacy in her bone. Plaintiffs’ counsel then asked:

“Q. Well, did you have some other explanation for that?
“A. Well, that’s one of the explanations. Another explanation is when Dr. Scarpino mentioned that he was notified that she (Mrs. Hlatky) had hit her hip against the door handle.
“Q. Doctor, did you have any information about Mrs. Hlatky hitting her hip on the door handle?
“A. I can’t recall now whether I did or not, at that time.
“Q. Well, Doctor, if this woman hit her hip to the extent that she could have dislodged one of the pins, that’s something that you as her treating physician, would want to check up on, wouldn’t you?
“A. I would imagine that Dr. Scarpino probably told me — notified me of that, but can I recall now? No, there is no way I can recall now.
“Q. Well, Doctor, there is absolutely nothing in the medical records written by you or any other physician that makes any reference anywhere, to a bump of the hip, right?
“A. That’s correct. But he ordered x-rays when he was notified of that. He didn’t just — Dr. Scarpino didn’t just order x-rays out of nowhere on that date.
“Q. And you know that because what in the record tells you that, Doctor?
“A. Because it’s not his common practice to order x-rays on a patient of mine if there is no reason to get new x-rays.”

Later, on redirect examination of Dr. Jaeger, defendants’ counsel argued that the door had been opened on the contents of the nurse’s note by the cross-examination of plaintiffs’ counsel. We agreed, and allowed him to introduce the note into evidence and to question Dr. Jaeger about it. Plaintiffs contend that this was prejudicial error. We disagree.

In view of the strenuous objection of plaintiffs’ counsel to the nurse’s note three days earlier, we were astonished that he reopened the issue by asking Dr. Jaeger whether there was anything in the medical records that referred to a bump of Mrs. Hlatky’s hip. Clearly, there was; and plaintiffs’ counsel now on Monday, April 2, 2007, had been aware of the note since the preceding day of trial, Friday, March 30, 2007. Plaintiffs’ counsel first asked Dr. Jaeger whether there was anything in the medical records “written by you or any other physician” referring to the bump of the hip. That question almost opened the door. The next question clearly did so. The next question was “And you know that because what in the record tells you that, Doctor ?”

By asking Dr. Jaeger whether anything in the record tells him that Mrs. Hlatky bumped her hip, plaintiffs’ counsel invited defense counsel to elicit from the witness on redirect examination the contents of the nurse’s note relating to the bump of the hip. Plaintiffs’ counsel was attempting to create the inference that there was nothing in the medical records to support Dr. Jaeger’s suggestion that Mrs. Hlatky may have bumped her hip. In that circumstance, it was quite appropriate for defendants’ counsel to counter this inference by offering into evidence the nurse’s note, which was part of the Sacred Heart Hospital records. See Commonwealth v. Lewis, 472 Pa. 235, 372 A.2d 399 (1977) (holding that when a party raises an issue on cross-examination, the trial court may permit redirect examination on that issue in order to dispel any unfair inferences).

The plaintiffs argue that the door was not opened by counsel’s cross-examination because Dr. Jaeger did not refer to the nurse’s note in responding to counsel’s questions. However, once plaintiffs’ counsel raised the issue of the medical records and implied by his questions that these records said nothing about a bump of the hip, defense counsel had the right to clarify the matter on redirect examination. The response of Dr. Jaeger, who had apparently forgotten about the note during his cross-examination, does not change the result. By asking Dr. Jaeger what in the medical records indicates that Mrs. Hlatky bumped her hip, plaintiffs’ counsel waived any objection to the disclosure of the medical record that indicates such an incident.

In addition, we note that Dr. Scarpino had testified previously on day four of the trial, without objection, that Mrs. Hlatky had bumped her hip on a doorknob on November 1,2000. Hence, this fact was already a matter of record. Consequently, the admission of the nurse’s note, whether or not in error, cannot be considered a prejudicial error, so as to justify a new trial.

For all the foregoing reasons, the plaintiffs’ motion for new trial must be denied.

      . Plaintiffs’ motion for post-trial relief, p. 1.

      . Notes of Testimony (N.T.) 3/29/2007, 96.

      . N.T. 4/2/07, 173,208, 210 and 211.

      . Id. at 210.

      . Id. at 167.

      . Id. at 160, 172, 173, 174, 197 and 220.

      . N.T. 3/30/07, 68.

      . Id. at 71.

      . Id. at 72.

      . Id. at 72-73.

        .Id. at73.

      . It should be noted that Dr. Scarpino was precluded from offering an opinion regarding x-rays of Mrs. Hlatky because at his deposition he had stated that he was not going to testily regarding the x-rays. N.T. 3/30/07,91.

      . Plaintiffs’ exhibit 1.

      . N.T. 3/30/07, 46-47.

      . Id. at 113; see Pa.R.E. 803(6) and Leonard Packel and Anne Bowen Poulin, Pennsylvania Evidence, §803(6)-l at 866-67 (3d ed. 2007) (records may be excluded where the source of the information is unclear).

      . 75B Am.Jur.2d Trial §1469 (2007).

      . Day five of the trial was Monday, April 2,2007. Three calendar days had elapsed after day four of the trial, which was Friday, March 30,2007.

      . 1M.T. 4/2/07, 14-15. (emphasis added)

      . Id. at 15. (emphasis added)

      . N.T. 3/30/07, 46-47.


source: Caselaw Access Project

author: FRITSCH JR., J.,

license: Public Domain

text:
    In re Estate of Collins

      Brian M. Puricelli, for appellant.

      Maris C. Langford, for Mrs. Collins.

      Richard D. Magee Jr., for Mrs. Ablassmeir.

      Francis J. Sullivan, for David J. Collins and Eileen M. Bray.
    February 27, 2008
   FRITSCH JR., J.,

On October 19,2007, based upon clear and convincing evidence, we adjudicated Eileen D. Collins, currently 81 years of age, an incapacitated person, and appointed her daughter Donna L. Ablassmeir the permanent plenary guardian of her person and estate. On November 19,2007, Eileen D. Collins’ husband, David R. Collins (appellant), filed with this court a notice of appeal to the Pennsylvania Superior Court. This opinion is filed in accordance with Pa. R.A.P. 1925(a).

BACKGROUND

Eileen D. Collins is currently 81 years old. She has been married to appellant, who is 84 years of age, for over six decades. (N.T., 9/7/07, p. 139; N.T., 10/16/07, p. 15.) They have seven adult children: Arlene B. Collins Carlough, Donna L. Ablassmeir, David J. Collins, Eileen Mary Bray, Barbara Sue Collins, Kathleen Seibert and Maureen Cullen.

In August of2007, Donna L. Ablassmeir filed petitions for the adjudication of her parents, Eileen D. Collins and appellant, as incapacitated persons and for her appointment as the plenary guardian of their persons and estates. Her petition respecting appellant’s status as an alleged incapacitated person is being considered in a parallel but separate proceeding in this court. See In re Estate of David R. Collins, An Alleged Incapacitated Person, Bucks County Court of Common Pleas, Orphans’ Court Division, no. 2007-0363.

Four of Mrs. Collins’ children, Kathleen Seibert, David J. Collins, Maureen Cullen and Eileen Mary Bray, filed a response to Ablassmeir’s petition in the within matter. They did not contest a finding of incapacity but objected to Ablassmeir’s request to be appointed the guardian of Eileen D. Collins’ person and estate. They petitioned for the appointment of David J. Collins as the plenary guardian of Mrs. Collins’ estate and of Eileen Mary Bray as the plenary guardian of her person. Compare petition (Aug. 19,2007) with response (Sept. 6,2007).

Upon the request of Mrs. Ablassmeir, the Honorable Daniel J. Lawler, who has since retired from the bench, appointed independent counsel for Mrs. Collins. Order, Lawler, J. (Aug. 20,2007). Mrs. Collins’ court-appointed counsel for purposes of the within matter is Maris C. Langford, Esquire. Mrs. Collins, by and through her counsel, did not contest the petitions.

Evidentiary hearings were held on September 7,2007 and October 16, 2007. Appellant was present at both hearings. Brian M. Puricelli, Esquire, appellant’s counsel, was present at the September 7, 2007 hearing. Attorney Theodore Kravitz, an associate of Brian M. Puricelli, Esquire, was present with appellant at the outset of the October 16,2007 hearing. (N.T. 10/16/07, pp. 2-9.) The attorneys for petitioners and for Mrs. Collins were present at both hearings.

The evidence adduced before this court established that Mrs. Collins suffers from moderate to severe dementia. Written interrogatories with affidavit, John J. Filips D.O. (Sept. 5, 2007). Her condition will not improve or subside over time, but will only exacerbate. Id. Moreover, Mrs. Collins’ mental capacity has been progressively and substantially diminishing throughout the past five years. (N.T., 10/16/07, pp. 17, 19-21, 92, 97, 107.)

Because of Mrs. Collins’ condition, she is totally unable to monitor and understand essential requirements for her medical care. Written interrogatories with affidavit, John J. Filips D.O. For example, she is unable to monitor the time and dosage levels of her prescribed medication. Id. (N.T., 10/16/07, pp. 21, 92,107.) Sometimes she fails to take her medication for a couple of days at a time. (N.T., 10/16/07, pp. 17,20.) She is also unable to schedule her medical appointments. (N.T., 10/16/07, pp. 21, 142.)

Also as a result of the dementia, Mrs. Collins has poor memory and insight. Written interrogatories with affidavit, John J. Filips D.O. (N.T., 10/16/07, pp. 21-22, 91, 107.) This has caused her to be unable to handle a checking account, pay bills in a timely fashion, or monitor her finances. Id. (N.T., 10/16/07, pp. 97,106.) For example, David J. Collins testified that he paid most of his parents’ bills from 2003 to mid-2007. (N.T., 9/7/07, p. 133; N.T., 10/16/07, pp. 42, 213.) He did so because his parents were not paying essential bills, allowing policies to lapse and utilities to be shut off. (N.T., 10/16/07, p. 42.)

In addition, Donna L. Ablassmeir reported an incident that occurred in January of 2007. Mrs. Ablassmeir inquired about a debit entry in Mrs. Collins’ checkbook because the entry was not in Mrs. Collins’ handwriting. Mrs. Collins replied: “I think I was at the bank with David yesterday, but I’m not sure.” (N.T. 10/16/07, pp. 36-37.)

According to David J. Collins, he made the debit entry. The day before, he had taken Mrs. Collins and appellant to the bank, at the insistence of appellant, for the purpose of having Mrs. Collins cash in one of her IRA accounts. David J. Collins testified that he heard appellant tell Mrs. Collins that he would divorce her if she did not pay their son half of what they owed him for the bills and other expenses their son had been paying on their behalf since 2003. (N.T., 10/16/07, pp. 215,220,238.) David J. Collins took his parents to the bank where Mrs. Collins turned over the sum of $9,990 to her son. (N.T., 10/16/07, pp. 220, 232, 238.) While at the bank, David J. Collins also obtained a power of attorney from his mother granting him access to her bank accounts. (N.T, 10/16/07, p. 213.) He admitted that his mother did not fully comprehend what she was doing when she turned the money over to him and executed the powers of attorney. (N.T, 10/16/07, p. 236.)

Appellant and Mrs. Collins have had, over the past several years, marital disagreements, which are apparently due, in part, to their advanced age and diminished mental capacity. (N.T, 10/16/07, pp. 19-20,29-30.) Ms. Bray testified that appellant has threatened Mrs. Collins with divorce several times. (N.T, 10/16/07, p. 181.) Ms. Bray also testified that she received notice from appellant’s attorney, Brian M. Puricelli, Esquire, stating that there was going to be a divorce proceeding in the future. (N.T, 10/16/07, pp. 183-84.)

Many of the couple’s disagreements appear to focus on their marital assets and marital expenses. For example, when Mrs. Collins received an inheritance, appellant began to insist that Mrs. Collins pay for half of all the marital expenses from her own money. This threatened to deplete her resources and increase her financial dependence on appellant. (N.T, 10/16/07, pp. 212-13, 218, 220, 237.) While appellant has access to approximately $900,000 in certificates of deposit, investments, and checking and savings accounts, Mrs. Collins has access to only one tenth of that sum, i.e., roughly $90,000. (N.T. 9/7/07, pp. 128-29; N.T, 10/16/07, p. 237.) Moreover, while appellant receives $1,600 per month in the form of Social Security income, Mrs. Collins receives only $696 per month. (N.T. 9/7/07, pp. 128-29.)

In light of these economic disparities and appellant’s coercive behavior as recited above, we perceived Mrs. Collins to be in a precarious situation. Donna L. Ablassmeir described her mother as being the victim of financial abuse at the hands of her father and indicated that appellant has always kept strict control over the couple’s money. (N.T., 10/16/07, p. 42.) At the conclusion of the hearing, Maris C. Langford, Esquire, counsel for Mrs. Collins, asked this court to freeze any accounts in which Mrs. Collins has a property interest. (N.T., 10/16/07, p. 255.)

Mrs. Collins’ children agree that the patchwork care she has been receiving from them is not working properly, and is taking a toll on the family, even though they have been doing the best they can under the circumstances. (N.T., 10/16/07, pp. 22-28, 35-36, 61-66, 79, 92-93,159-61,199,224.) The family members have had irreconcilable disagreements periodically as to how to best take care of Mrs. Collins and her husband. (N.T., 10/16/07, pp. 99-100, 113-14, 127-28,140,145,159-61, 224.) One such disagreement occurred around March or April of 2007, when appellant was hospitalized on two occasions. (N.T., 10/16/07, pp. 25-26, 36, 152, 159-61, 224-25.)

Throughout the time appellant was hospitalized, Mrs. Collins stayed for a few days at David J. Collins’ house and for a few days at Barbara Sue Collins’ house. (N.T., 10/16/07, pp. 25,155.) Upon appellant’s discharge from the hospital, there was continued uncertainty as to what living arrangements would be best for Mrs. Collins. (N.T., 10/16/07, pp. 26-28, 118, 152-53, 224.) Eventually, Mrs. Collins’ children arranged for her to move into an apartment complex with appellant. (N.T., 10/16/07, pp. 27-28, 120-21.)

At around this time, the petitioners and their siblings agreed that it was necessary to have a guardian or guardians appointed for their parents, so that they could receive effective and consistent care, as well as proper attention to their individual needs. They visited an attorney for this purpose. (N.T., 10/16/07, pp. 61-66, 191.)

The evidence before this court clearly and convincingly established that Mrs. Collins was incapacitated and in need of a plenary guardian for her person and estate. Furthermore, this court was satisfied, based upon the totality of the evidence, that Mrs. Ablassmeir would be the person most appropriate to serve as the plenary guardian of her mother’s person and estate.

Donna L. Ablassmeir is 49 years of age. (N.T., 10/16/07, p. 14.) She worked as a legal secretary for over 26 years. (N.T., 10/16/07, p. 14.) At the hearing, she testified that she visited her parents two to three days a week, and was purposely working only part-time as an administrative assistant to have more time to take care of her parents. (N.T., 10/16/07, p. 16.)

Mrs. Collins and Mrs. Ablassmeir have a good relationship. Of all the petitioners who volunteered to serve as Mrs. Collins’ guardian, Donna L. Ablassmeir appeared to be most responsive to Mrs. Collins’ expressed wishes and needs. (N.T., 10/16/07, pp. 13-82, 93-96, 108, 122-23, 130-205, 207-41.) Often, Mrs. Collins turns to Mrs. Ablassmeir for help when she feels isolated or when she needs refuge from her husband. (N.T., 10/16/07, pp. 17-18, 20.) Mrs. Ablassmeir knows her mother’s favorite activities and favorite places to visit. (N.T., 10/16/07, pp. 17-18, 78.)

In short, Mrs. Ablassmeir is a competent and caring individual who appeared motivated and committed to taking proper care of her mother’s person and estate. (N.T., 10/16/07, pp. 26, 32-34, 43, 54.) In addition, this court was satisfied that she would be able to give appropriate weight to her mother’s preferences whenever possible. (N.T., 10/16/07, pp. 34, 78.)

This court entered a final decree on October 19,2007, adjudicating Mrs. Collins an incapacitated person and appointing her daughter Donna L. Ablassmeir plenary guardian of her estate and person. We also included in the decree several provisions to preserve judicial supervision over the management of Mrs. Collins’ estate. Appellant filed exceptions to the final decree on October 24, 2007, by and through his attorney Brian M. Puricelli, Esquire. Appellant asserted broad constitutional challenges to the decree but filed no brief and cited no case law in support thereof. Appellant also argued that the law providing for entry of the decree was unconstitutional. Once again, no brief was filed and no case law was cited.

Without awaiting a decision on the exceptions, appellant, by and through his attorney of record, Brian M. Puricelli, Esquire, filed a notice of appeal with this court on November 19,2007, together with a document titled “statement of issue on appeal.” This opinion is filed in accordance with Pa.R.A.P. 1925(a).

ISSUES ON APPEAL

Appellant raises in his “statement of issue on appeal” a series of challenges to this court’s final decree with respect to Eileen D. Collins. For example, appellant alleges that this court violated the protections afforded Mrs. Collins by the Health Insurance Portability and Accountability Act (HIPAA). Appellant, however, has waived appellate review of these arguments because he failed to raise them throughout the proceedings. See Lineberger v. Wyeth f/k/a American Home Produdcts Corporation, 894 A.2d 141, 148 (Pa. Super. 2006) (citing Pa.R.A.P. 302(a)).

Appellant also challenges the constitutionality of the statute pursuant to which this court entered the final decree. Exceptions, ¶2. Appellant has waived review of this contention as well. Pennsylvania Rule of Civil Procedure 235 and Pennsylvania Rule of Appellate Procedure 521 require that notice be given to the attorney general whenever the constitutionality of a statute is challenged and the Commonwealth is not a party to the action. The Commonwealth is not a party to this action. No proof of service of such notice has been filed with this court. Appellant, thus, has waived appellate review of this argument. See e.g, Faust v. Messinger, 345 Pa. Super. 155, 159, 497 A.2d 1351, 1352-53 (1985) (citing Matter of Adoption of Christopher P, 480 Pa. 79, 90, 389 A.2d 94, 100 (1978)).

Appellant also raises a series of undeveloped constitutional challenges to the portion of the decree providing for judicial oversight of Mrs. Collins’ estate, which includes property in which appellant has either vested or contingent interests. Appellant argues inter alia that this court violated his “due process protections” and deprived him of his “constitutionally protected liberty and associational right decisions.” Statement of issue on appeal. Appellant further argues that the October 19,2007 decree “amounts to a taking of his property without first affording him procedural due process notice and opportunity to defend.” Exceptions, ¶1.

Appellant, however, has waived review of these constitutional arguments for two reasons. First, he failed to raise these objections before this court. See Lineberger, supra, 894 A.2d at 148 (citing Pa.R.A.P. 302(a)). Second, the arguments he makes, by and through his attorney of record, are so vague and undeveloped that no meaningful review is possible. See e.g, id. (“When an appellant fails adequately to identify in a concise manner the issues sought to be pursued on appeal, the trial court is impeded in its preparation of a legal analysis which is pertinent to those issues.”); see also, Pa.R.A.P. 1925(b) (2)(ii), (vii) (2007); Commonwealth v. Thompson, 778 A.2d 1215, 1223 (Pa. Super. 2001). Appellant’s general allegations render it impossible for this court to properly identify and review the specific issues appellant is attempting to articulate.

In short, appellant has failed to preserve any issue for appellate review. Therefore, his appeal should be dismissed. Nonetheless, we will briefly address the legal and evidentiary bases for this court’s decision to exercise judicial supervision over the estate of Eileen D. Collins.

DISCUSSION

“[I]n reviewing the decision of the orphans’ court, [the] task is to assure that the record is free from legal error and to determine if the chancellor’s findings are supported by competent and adequate evidence, and are not predicated upon capricious disbelief of competent and credible evidence.” In re Estate of Schram, 696 A.2d 1206, 1211 (Pa. Commw. 1997) (quoting In re Estate of McCrea, 475 Pa. 383, 386, 380 A.2d 773, 775 (1977)). The evidence before this court revealed that appellant and Mrs. Collins own two real estate properties in Upper Makefield Township, Bucks County, Pennsylvania. Response, ¶16 (Sept. 6, 2007). (N.T., 9/7/07, pp. 126-27.) Their permanent home is located on one of the parcels. The other property consists of an undeveloped tract of land. (N.T., 9/7/07, p. 127.) David J. Collins testified that the properties are titled in the names of both appellant and Mrs. Collins. (N.T., 9/7/07, pp. 126-27.)

As previously indicated, Mrs. Collins also receives Social Security income of $696 per month and has savings adding up to approximately $90,000 in the form of a certificate of deposit and either a savings or a checking account. Response, ¶16. (N.T. 9/7/07, p. 129; N.T., 10/16/07, p. 237.) Moreover, appellant has access to approximately $900,000 in certificates of deposit, investments, as well as checking and savings accounts. (N.T. 9/7/07, pp. 128-29; N.T., 10/16/07, p. 237.) There was no evidence that Mrs. Collins has access to any one of these investment instruments or accounts. Furthermore, there was no evidence that appellant has made Mrs. Collins a joint owner of these accounts.

Ancillary to this court’s adjudication of Mrs. Collins as an incapacitated person and appointment of a guardian for her estate, this court ordered inter alia:

“The guardian of the estate shall have the authority and responsibility to manage and use Eileen D. Collins’ property for Ms. Collins’ benefit in accordance with 20 Pa.C.S. §5536(a). Pursuant to 20 Pa.C.S. §5536(a), the guardian of the estate may spend income for the aforesaid purposes without the court’s written approval. The guardian of the estate may also spend principal assets for the care and well-being of Eileen D. Collins in accordance with an approved budget and may establish an appropriate burial reserve.” Final decree, pp. 3 (Oct. 19, 2007).

The authorization for the inclusion of this provision lies in the Pennsylvania Probate, Estates, and Fiduciaries Code. Pursuant to 20 Pa.C.S. §5537, the “court may authorize the guardian to retain such assets as are deemed appropriate for the anticipated expense of the incapacitated person’s funeral.” The Code further provides:

“The orphans’ court division, for cause shown and with only such notice as it considers appropriate in the circumstances, may authorize or direct the payment or application of any or all of the income or principal of the estate of an incapacitated person for the care, maintenance, or education of the incapacitated person, his spouse, children or those for whom he was making such provision before his incapacity.” 20 Pa.C.S. §5536(a).

A guardian, however, may not invade the principal of the incapacitated person’s estate without prior court approval. See e.g., In re Estate of Schram, 696 A.2d 1206, 1212 (Pa. Commw. 1997) (citing section 20 Pa.C.S. §5536). In this case, we have insisted on this limitation by requiring that a budget be submitted to this court for approval before the guardian spends the principal of Mrs. Collins’ estate and by ordering that no assets Mrs. Collins holds jointly with any other person may “be transferred, liquidated, or dissipated in any manner without prior court approval.” Final decree, p. 2.

The purpose of this latter provision is two-fold. First, the provision prevents the guardian from invading the principal of Mrs. Collins’ estate without prior approval from this court, as required by law. Second, this provision strikes a balance between Mrs. Collins’ and appellant’s property interests. It ensures that the guardian does not take possession of the entirety of Mrs. Collins’ estate for Mrs. Collins’ benefit to the detriment of appellant. It also ensures that appellant does not take action adverse to Mrs. Collins’ interests with respect to said property.

The authority of this court to include said provision in the decree is amply supported by the applicable statutory and case law. Upon a finding of incapacity, this court’s jurisdiction extends over Mrs. Collins’ estate. Pursuant to 20 Pa.C.S. §711(10), the orphans’ court division of the court of common pleas has mandatory jurisdiction over “[t]he administration and distribution of the real and personal property of the estates of incapacitated persons.” Moreover, 42 Pa.C.S. §323 provides that “[ejvery court shall have ... all legal and equitable powers required for or incidental to the exercise of its jurisdiction, and, except as otherwise prescribed by general rules, every court shall have power to make such rules and orders of court as the interest of justice or the business of the court may require.”

This court’s jurisdiction further extends to all property Mrs. Collins holds jointly with appellant, given that she holds an interest in the entirety of such property and not merely in a discrete part thereof. We properly concluded that all assets Mrs. Collins holds jointly with appellant are held in tenancy by the entireties by virtue of their marriage. “A tenancy by the entireties is a unique form of co-ownership [that] exists when property, either real or personal, is held jointly by a husband and wife, with its essential characteristic being that each spouse is seised of the whole or the entirety and not a divisible part thereof Clingerman v. Sadowski, 513 Pa. 179, 183, 519 A.2d 378, 380-81 (1986) (emphasis added) (footnote omitted) (citing In re Gallagher’s Estate, 352 Pa. 476, 43 A.2d 132 (1945)).

In addition, case law supports the inclusion of the provision barring dissipation, liquidation or transfer of Mrs. Collins’ estate without prior approval from the court. In re Estate of Morrissey, 440 Pa. 439, 447, 269 A.2d 662, 667 (1970), which involved the appointment of a guardian for a minor, the Pennsylvania Supreme Court upheld a trial court’s order enjoining the opening of a safe deposit box containing the entirety of a minor child’s property without an order of court allowing it. Id. The Pennsylvania Supreme Court held that the trial court order enjoining the opening of the safe deposit box of the minor child without an order of court “was clearly within the proper exercise of the court’s equitable powers in acting for the best interests of minor children within its jurisdiction.” Id. at 447, 269 A.2d at 667.

In the instant case, this court not only has the authority, but also the duty, to act in Mrs. Collins’ best interest even though she is an adult. “[An] incapacitated person is, in effect, the ward of the court, and the incapacitated person’s estate is in custodia legis.” Standard Pennsylvania Practice 2d 164:1, p. 483 (citing inter alia Commonwealth ex rel. Flowers v. Flowers, 326 Pa. 138, 191 A. 914 (1937); In re Davidson’s Estate, 323 Pa. 113, 185 A. 782 (1936)). Similar to the situation in the Estate of Morrissey, the order of this court protecting Mrs. Collins’ jointly held assets from liquidation, transfer, or dissipation without prior court approval “was obviously ancillary to the appointment of a guardian and to maintain the status quo.” 440 Pa. at 447, 269 A.2d at 667.

Appellant has expressed wishes to liquidate the couple’s assets. (N.T., 9/7/07, pp. 75, 80.) For example, Barbara Sue Collins testified that attorneys visited her parents’ home to discuss the sale of their real estate properties. (N.T., 9/7/07, pp. 75, 80.) Moreover, there was evidence that both appellant and his wife could potentially be the victims of predatory behavior. (N.T., 9/7/07, pp. 75,112,130.)

Barring appellant from liquidating, transferring or dissipating the property appellant holds jointly with Mrs. Collins without prior court approval does not violate his procedural due process rights. The Fourteenth Amendment of the United States Constitution provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” U.S. Constitution Amendment XIV, Section 1. Moreover, the Constitution of the Commonwealth of Pennsylvania provides: “All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.” Pennsylvania Constitution Article 1, Section 1. With respect to property rights, the requirements of this Article “are not distinguishable from those of Section 1 of the Fourteenth Amendment to the Federal Constitution.” R. v. Commonwealth of Pa., Dept. of Public Welfare, 535 Pa. 440, 461, 636 A.2d 142, 152 (1994) (quoting Best v. Zoning Board of Adjustment, 393 Pa. 106, 141 A.2d 606 (1958)).

The Due Process Clause’s procedural component does not create the underlying property right afforded protection, “but protects the right created by statute or other legal basis.” Faust v. Messinger, 345 Pa. Super. 155, 159, 497 A.2d 1351, 1352 (1985). Under Pennsylvania law, appellant does not have an unfettered right to transfer, liquidate, or dissipate the real estate properties he holds jointly with Mrs. Collins. In a tenancy by the entireties, “[n] either spouse . . . may independently appropriate property to his or her own use to the exclusion of the other.” Clingerman v. Sadowski, 513 Pa. 179, 183, 519 A.2d 378, 381 (1986) (citing Shapiro v. Shapiro, 424 Pa. 120, 224 A.2d 164 (1966); Berhalter v. Berhalter, 315 Pa. 225, 173 A. 172 (1934); Backus v. Backus, 464 Pa. 380, 346 A.2d 790 (1975); Del Borrello v. Lauletta, 455 Pa. 350, 317 A.2d 254 (1974)). “An estate by the entire-ties is incapable of dissolution by one of the owners without the consent of the other, and neither spouse alone may alienate his or her interest in the property during the other’s lifetime.” Daley v. Hornbaker, 325 Pa. Super. 172, 176, 472 A.2d 703, 705 (1984). (footnote omitted)

Clearly, this court has not deprived appellant, or Mrs. Collins, of any property interest without due process of law. Appellant and Mrs. Collins received notice that petitioners were seeking the appointment of a plenary guardian for her person and estate. Appellant and Mrs. Collins received notice of the hearings. Appellant and Mrs. Collins were present at every hearing and were given the opportunity to participate. Our decisions to declare Mrs. Collins an incapacitated person, to appoint a plenary guardian for her person and her estate, and to protect her jointly held assets were based on clear and convincing evidence.

CONCLUSION

For the foregoing reasons, this court’s final decree should be affirmed and the appeal should be dismissed.

      . The September 7, 2007 proceeding was presided over by the Honorable Daniel J. Lawler, who has since retired from the bench. For a thorough description of the evidence adduced at this hearing, see Judge Lawler’s opinion dated September 27,2007, in the matter of In re Estate of David R. Collins, An Alleged Incapacitated Person, Bucks County Court of Common Pleas, Orphans’ Court Division, no. 2007-0363.

      . Soon after Donna L. Ablassmeir filed her petition, the court issued a preliminary decree, awarding a citation, directed to Eileen D. Collins, to show cause why she should not be adjudicated an incapacitated person and Donna L. Ablassmeir should not be appointed plenary guardian other person and other estate, and scheduling a hearing on said petition for September 7,2007. Preliminary decree, Judge Lawler, p. 1, ¶2 (Aug. 15, 2007). Due to the highly contested nature of the parallel petition to declare appellant an incapacitated person and appoint a guardian for his person and estate, the September 7, 2007 hearing focused on the need to conduct an independent evaluation of appellant pursuant to 20 Pa.C.S. §5511 (d). (N.T., 9/7/07, passim.) Much of the evidence adduced at said hearing, however, was relevant to the within proceeding. Therefore, the transcript of the September 7,2007 hearing was incorporated into the record of the instant guardianship proceeding by an order the undersigned issued from the bench. (N.T., 10/16/2007, p. 12.)

      . Regarding the notices given Mrs. Collins and appellant in accordance with 20 Pa.C.S. §5511 (a), see N.T. 10/16/07, pp. 9-10; exhibit P-1.

      . The first matter addressed at the October 16, 2007 hearing was a contempt issue regarding the case of the estate of David R. Collins. The day before the hearing, Mr. Puricelli, by and through Mr. Kravitz, requested a continuance with respect to the contempt hearing also scheduled for that day. This court requested medical verification of his alleged illness, which Mr. Kravitz represented to this court to have been the reason for the continuance request. This court was not satisfied with the medical reason for the request, in that Mr. Puricelli’s medically prescribed bed rest ended on October 16, 2007. (N.T. 10/16/07, pp. 2-3.) Moreover, Attorney Sullivan explained to this court that one of the siblings had seen Mr. Puricelli the day before in a parking lot speaking with his client. (N.T., 10/16/07, p. 6.) This court nonetheless agreed to continue the contempt matter on the ground that there was a motion for stay outstanding with respect to the underlying order at issue. (N.T. 10/16/07, pp. 2-6.)
      Subsequently, Mr. Kravitz requested to be excused from the hearing. (N.T. 10/16/07, p. 3.) The undersigned asked Mr. Kravitz to consult with his client, appellant, as to whether appellant wished to participate in the hearing regarding his wife’s alleged status as an incapacitated person. (N.T. 10/16/07, pp. 3, 8.) Mr. Kravitz informed this court that appellant did not wish to participate. (N.T. 10/16/07, p. 8.) Under these circumstances, this court excused Mr. Kravitz, who left the courtroom. (N.T. 10/16/07, p. 8.) Appellant, however, did stay throughout the proceedings and participated by randomly interjecting comments and objections, which were transcribed by the court reporter. (N.T., 10/16/07, p. 39.)

      . All of the petitioners and their siblings were present at the October 16,2007 hearing. (N.T., 10/16/07, p. 10.)

      . Dr. Filips has been Mrs. Collins’ treating physician since March of2003. Written interrogatories with affidavit, John J. Filips D.O. (Sept. 5, 2007.) The written interrogatories with affidavit was admitted into evidence on October 16,2007. (N.T., 10/16/07, p. 10.) Dr. Filips’ curriculum vitae was also admitted into evidence. (N.T., 10/16/07, pp. 10-11; exhibit P-3.)

      . Although Mrs. Collins testified at the October 16,2007 hearing, she, by and through her attorney, did not express a preference. (N.T., 10/16/07, p. 252.)

      . The work of caring for Mrs. Collins is demanding. (N.T., 10/16/07, pp. 44-45, 160.) For example, Mrs. Ablassmeir testified that Barbara Sue Collins, who has been involved the most in caring for their parents, has neglected her life and lost jobs as a result of doing so. (N.T., 10/16/07, p. 44.) Eileen Mary Bray admitted that she has on previous occasions doubted whether she would be able to do the job. (N.T., 10/ 16/07, p. 160.)

      . According to Supreme Court O.C.R. 7.1(a), if “exceptions are filed, no appeal shall be filed until the disposition of exceptions except as provided in subdivision (d) (multiple aggrieved parties).” Subsection (d) provides that “[w]here more than one party is aggrieved by a final appealable order... a timely appeal filed by any party renders exceptions a nullity by any other party.” The problem in this case is that appellant is the only party who filed exceptions and is the only party who filed a notice of appeal. Mrs. Collins’ court-appointed counsel for purposes of the within proceeding has not filed exceptions and has not filed a notice of appeal. Likewise, not one of the petitioners filed exceptions or a notice of appeal.

      . The “statement of issue on appeal” consists of one fragmented paragraph which does not categorize the issues with specificity.

      . It must be observed that neither appellant nor his attorney has standing to appeal from this court’s final decree on behalf of Mrs. Collins, even though appellant listed her as a co-appellant. Appellant’s status as Mrs. Collins’ husband does not grant him such standing. It suffices to say that the concept that a husband and wife are one legal unit rather than an association of two independent individuals has long been abandoned. See e.g., Hack v. Hack, 495 Pa. 300, 433 A.2d 859 (1981) (re-evaluating and rejecting outmoded principles of law governing the relationships between husbands and wives while abolishing the defense of interspousal immunity). Mrs. Collins’ court-appointed counsel for purposes of the within proceedings, Maris C. Langford, Esquire, has not filed a notice of appeal with this court. Mrs. Ablassmeir, guardian of Mrs. Collins’ person and estate, has not filed a notice of appeal with this court either. Undoubtedly, neither Mrs. Collins nor any one of her legally recognized representatives is seeking review of this court’s decision. None of the petitioners is seeking review either. Nonetheless, as the Supreme Court of Pennsylvania has held, the issue of standing to appeal may not be raised by the court sua sponte (unless the issue is “intertwined with subject matter jurisdiction.)” See e.g, In re Nomination Petition of de Young, 588 Pa. 194, 201, 903 A.2d 1164, 1168 (2006). At the trial court level, no party has challenged appellant’s inclusion of issues pertaining solely to Mrs. Collins’ legal rights in his “statement of issue on appeal.” Therefore, we do not base our analysis on this argument.

      . Pennsylvania Rule of Appellate Procedure 302(a) provides that “[ijssues not raised in the lower court are waived and cannot be raised for the first time on appeal.”

      . Under Pennsylvania law, “[a]n intention to create [a tenancy by the entirety] is assumed from the deposit of an asset in both the names of a husband and wife, without more, and from the fact of a marital relationship.” Constitution Bank v. Olson, 423 Pa. Super. 134, 140, 620 A.2d 1146, 1149-50 (1993) (citing inter alia Shapiro v. Shapiro, 424 Pa. 120, 136, 224 A.2d 164, 172 (1966); Madden v. Madden, 336 Pa. Super. 552, 558, 486 A.2d 401, 404-405 (1985)). Said presumption may be overcome only by clear and convincing evidence to the contrary. Constitution Bank, 423 Pa. Super, at 141, 620 A.2d at 1150 (the type of ownership which is created in property when a husband and wife are involved, “and in the absence of clear and convincing evidence to the contrary, is as tenants by the entireties”).
      In this case, Mrs. Collins and appellant have been married for over six decades. There was no clear and convincing evidence that any property Mrs. Collins holds jointly with appellant is held in any type of ownership other than in tenancy by the entireties.


author: BERNSTEIN, J,

text:
    Osborne-Davis Transportation Co. Inc. v. Mothers Work Inc.

      Edward J. Morris, for plaintiff.

      Charles S. Marion and Imiebihoro T. Ahonkhai, for defendant.
    February 20, 2008
   BERNSTEIN, J,

When plaintiff Osborne-Davis Transportation Co. Inc. filed this action against defendant Mothers Work Inc. in February, 2007, Osborne-Davis demanded a jury trial. In its complaint, Osborne-Davis asserted one claim for “promissory estoppel” against Mothers Work. Mothers Work filed a motion to strike plaintiff’s jury demand on the basis that promissory estoppel is an equitable claim to which no right to jury trial attaches. In response, Osborne-Davis argues that its “promissory estoppel” claim is a contract claim, and is entitled to have a jury hear it.

In support of its claim Osborne-Davis alleges it previously had a written contract with Mothers Work to provide delivery and transportation, i.e., trucking, services (the prior contract).

“On April 30, 2005, [the prior contract] expired according to the term period of the agreement, and Osborne-Davis Inc. and Mothers Work did not renew in writing the [prior contract].

“From on or about May 1,2005 to February 14,2006, Mothers Work through verbal discussions and conduct, by [its] agents, servants and employees acting in the course of business encouraged Osborne-Davis Inc. to continue to perform the same exclusive delivery and transportation services to Mothers Work as generally set forth in [the prior contract].”

Osborne-Davis further claims that to continue providing delivery and transportation services to Mothers Work after the prior contract expired, Osborne-Davis needed to buy new trucks and upgrade its existing equipment. It thereby incurred expenses and suffered financial losses in reasonable reliance “upon the verbal assurances, conduct and forbearance on the verbal promises and conduct of Mothers Work to continue and perform the deliveries for Mothers Work” after the prior contract terminated. Osborne-Davis claims only monetary damages for the additional costs it incurred as a result of its reliance on Mothers Work’s promises that the parties’ relationship would continue.

Osborne-Davis has pled a claim for promissory estoppel. Under promissory estoppel: “[a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires.”

Osborne-Davis claims that its damages were incurred after the prior contract terminated and in reliance upon Mothers Work’s representations that the parties’ relationship would continue for some indefinite time.

The Supreme Court has explained that promissory estoppel is a cause of action based on equitable principles.

“Historically speaking, equity validated and enforced promises predicated on what we now label ‘promissory estoppel’ centuries before bargained-for consideration was conceived. What is presently referred to as ‘equity’ originated in 1349, when Edward III by a general writ referred all matters as were within the king’s divine ‘prerogative of grace’ to the chancellor for adjudication. This general authority (prerogative of grace) required the chancellor to base all decisions on the principles of ‘conscience, good faith, honesty and equity.’ If someone had committed any unconscientious act or breach of faith and the ‘rigour of the law’ favored that party, then the other party who suffered thereby would be granted corrective relief ‘under the head of conscience.’ With its source in that writ, the ‘good faith’ basis of promissory estoppel was subsequently recognized and applied by American courts.

“Based on good faith and conscience, chancery, during the fourteenth and fifteenth centuries, applied the four principles (which are commingled and now referred to as ‘equity’) and gave ‘promissory estoppel’ relief to plaintiffs who had incurred detriment on the faith of a defendant’s promise....
“[The Pennsylvania Supreme Court], in 1938, recognized the equitable basis of promissory estoppel and its origins in the more ancient concept of equitable estoppel:
“Just as the law has consistently upheld the doctrine that, under given circumstances, a person may be es-topped by his conduct, his statements, or even his silence, if another has thereby been induced to act to his detriment, so from the earliest times there was recognized the principle that an estoppel might similarly arise from the making of a promise, even though without consideration, if it was intended that the promise be relied upon and in fact it was relied upon.... The basis of promissory estoppel is not so much one of contract, with a substitute for consideration, as an application of the general principle of estoppel to certain situations. It is important to bear in mind that, as already pointed out, the doctrine is much older in its origin and applications than the terminology now employed to describe it.”

Although Osborne-Davis’ promissory estoppel is rooted in equity, that historical fact does not prevent factual determinations from being a jury question. The Pennsylvania Supreme Court has decided that a plaintiff is entitled to a jury trial on a promissory estoppel claim. When the Supreme Court first held that the doctrine of promissory estoppel was cognizable in Pennsylvania, the court affirmed a judgment entered on the verdict of a jury. The court in Crouse v. Cyclops Industries, 560 Pa. 394, 403, 745 A.2d 606, 610 (2000), remanded a promissory estoppel claim for a jury trial holding that for statute of limitations purposes, a promissory estoppel claim is a breach of contract claim.

“As promissory estoppel is invoked in order to avoid injustice, it permits an equitable remedy to a contract dispute. Thus, as promissory estoppel makes otherwise unenforceable agreements binding, the doctrine sounds in contract law and we hold that, like other contract actions, . . . the limitations period where an agreement is enforceable under the doctrine of promissory estoppel is four years.”

When asked to decide whether promissory estoppel is an equitable or a legal claim for jury trial purposes, the Federal Court of Appeals for the Second Circuit made a reasonable distinction between different types of promissory estoppel based upon the remedy sought:

“The protean doctrine of promissory estoppel eludes classification as either entirely legal or entirely equitable, and the historical evidence is equivocal. It is clear, however, that both law and equity exert gravitational pulls on the doctrine, and its application in any particular case depends on the context in which it appears. For example, where a plaintiff sues for contract damages and uses detrimental reliance as a substitute for consideration, the analogy to actions in assumpsit (law) is compelling. By contrast, when the plaintiff uses promissory estoppel to avoid a draconian application of the Statute of Frauds, the pull of equity becomes irresistible.”

The Circuit Court’s reasoning, comports with Pennsylvania law, “[t]he equity jurisdiction of Pennsylvania courts is triggered only when an adequate remedy is not available at law,” “[i]t is axiomatic that the right to a jury trial applies to breach of contract claims requesting only monetary damages.” Osborne-Davis is entitled to have a jury decide the factual questions presented by its promissory estoppel claim.

Osborne-Davis is entitled to a jury determination of facts because it has asserted a quasi-contract claim for monetary damages only. Mothers Work’s motion to strike plaintiff’s demand for jury trial is denied.

ORDER

And now, February 20, 2008, in accordance with the court’s opinion issued simultaneously, it is ordered that defendant’s motion to strike plaintiff’s demand for a jury trial is denied.

      . Complaint, ¶10.

      . Id., ¶20.

      . Complaint, ¶22.

      . Id., ¶¶24-26.

      . Id, ¶28.

      . Kreutzer v. Monterey County Herald Company, 560 Pa. 600, 606, 747 A.2d 358, 361 (2000), citing Restatement (Second) Contracts §90 (1981).

      . Kreutzer, 560 Pa. at 604-606, 747 A.2d at 361 (2000). (citation omitted)

      . Fried v. Fisher, 328 Pa. 497, 499-500, 196 A. 39, 41 (1938) (“Although there are assignments of error to portions of the [jury] charge, the case presented on appeal to this court is confined by the statement of the question involved to plaintiff’s contention that binding instructions should have been given in his favor. While, perhaps, some of the learned trial judge’s charge as to the law governing consideration in contracts might be open to academic criticism, the point upon which the case really turns is whether [defendant] can enforce plaintiff’s promise to release him from further liability under the lease.”).

      . Id. 560 Pa. at 398, 745 A.2d at 608 (“The issue presently before this court is whether the Superior Court erred in finding that appellants’ complaint was untimely filed. At the conclusion of a three-day trial, the jury returned a verdict for appellants on their claim for promissory estoppel which the Superior Court reversed as barred by the statute of limitations. For the reasons stated below, we find that the statute of limitations on an action sounding in promissory estoppel is four years and that, under the facts of this case, the question of when the appellants knew or should have known of a breach by the appellees is a question of fact which should have been submitted to the jury. We therefore affirm the Superior Court as to the applicable statute of limitations, but reverse and remand to the trial court for a new trial on the singular issue of promissory estoppel, including a jury determination as to when the statute of limitations period began to run.”).

      . Merex A.G. v. Fairchild Weston Sys., 29 F.3d 821, 825 (2d Cir. 1994).

      . Petrecca v. Allstate Insurance Co., 797 A.2d 322, 326 (Pa. Super. 2002).

      . Id., 797 A.2d at 325.

      . If equitable relief had been sought those claims could be heard by an “advisory” jury only.


author: PAPALINI, J,

text:
    Kearton v. Quaker City Auctioneers Inc.

      Reginald A. Krasney, for plaintiff.

      Richard J. Margolis, for defendant.

      William E. Scott, for additional defendants Satriale and French Creek Millwork.

      Daniel S. Altschuler, for additional defendant Lancaster Development Co.
    December 19, 2007
   PAPALINI, J,

Plaintiff Jack G. Kearton filed an appeal for post-trial relief and for new trial on damages.

Defendant Quaker City Auctioneers filed an appeal for post-trial relief in the form of a judgment n.o.v.

Plaintiff Kearton and defendant Quaker City Auctioneers have each filed an appeal of our order of September 27, 2007, denying their motions for post-trial relief.

I. FACTS

[On February 23,2007, an involuntary directed verdict granted in favor of additional defendants, Gloria M. Satriale, trustee of estate of French Creek Millwork and the estate of French Creek Millwork Inc.]

On August 27, 2003, plaintiff attended a bankruptcy auction being held to liquidate the personal property of French Creek Millwork located at 735 Fox Chase in Coatesville. The auction was being conducted by defendant Quaker City within an industrial warehouse which French Creek had leased to be the site of its operations. While standing in an aisle way, plaintiff was hit by an object on the back of the left knee. Plaintiff testified that he had no idea what struck him or why.

Plaintiff called two witnesses to establish liability. Plaintiff called his ex-girlfriend, Maria Press, and his former business partner, Ed Brigante.

Ms. Press testified that she saw three or four 12-foot long poles clearly visible leaning in a comer of the wall. There were approximately 15 to 20 people in the area. After standing in the vicinity of the poles for some time, she observed a gentleman go into the area where the poles were situated and moments later, one of them fell and bounced off the floor and into the back of plaintiff’s left knee.

Mr. Brigante testified that he also observed these poles leaning against the wall. The rods were not an item tagged for auction sale. After about five to 10 minutes in the area, Mr. Brigante was struck on the left wrist from behind by a falling rod. The rod then deflected off of him and struck plaintiff on the back of the left knee. He observed someone moving away from the area where the rod was immediately after the incident.

II. PROCEDURAL HISTORY

(1) Plaintiff Kearton brought suit against the defendant Quaker City as a result of his lower back and knee injuries sustained after plaintiff was hit in the back of his left leg from a rod that fell over while plaintiff was attending a bankruptcy auction on August 27, 2003.

(2) Plaintiff filed suit on March 30,2005, alleging that defendant was liable for failing to maintain the premises on which the auction was being held.

(3) Trial commenced on February 9, 2007, and a jury verdict for plaintiff and against defendant in the amount of $47,119.55 was returned on February 23, 2007.

(4) Plaintiff now seeks post-trial relief and a new trial as to damages.

(5) Plaintiff filed amotion for delay damages, pursuant to Pennsylvania Rule of Civil Procedure 238 in the amount of $2,931.

(6) Defendant moved for directed verdict at the close of the evidence, which was denied. Pa.R.C.P. §226(b).

(7) Defendant filed a post-trial motion and seeks a judgment n.o.v. arguing that, based on the facts presented at trial, plaintiff should not recover.

(8) Plaintiff Kearton and defendant Quaker City Auctioneers have each filed an appeal of our order of September 27,2007, denying their motions for post-trial relief.

III. ISSUES

A. Plaintiff Kearton Raises the Following Issues on Appeal

(1) The court erred by requiring that question no. 4 of the jury instructions be worded as it was, specifically as to whether the left total knee replacement surgery “was caused” by this incident.

(2) The issue for the jury was not whether this incident “caused” plaintiff’s left total knee replacement; rather, the issue was whether this incident was “a factual cause” of plaintiff’s left knee replacement since plaintiff’s left knee was arthritic and would have needed a total knee replacement within two years of the time of this incident had the accident not happened.

(3) The court erred in not submitting the following proposed jury verdict question no. 5, which asked “do you find that Mr. Kearton was required to undergo left total knee replacement surgery sooner than he otherwise may have had to because of this incident?”

(4) The court erred by not charging the jury on plaintiff’s proposed points for charge nos. 8 and 9, as to legal liability for aggravation of a pre-existing condition.

(5) The jury’s award of $47,119.55 was manifestly against the weight of the evidence because plaintiff suffered a herniated disc in his back, radiating pain, and need for significant treatment.

B. Defendant Quaker City Auctioneers Raises the Following Issues on Appeal

(1) In order to impose liability on a possessor of land, a plaintiff must present evidence tending to prove that the possessor deviated from some “standard of care.”

(2) There was no evidence presented at trial that defendant Quaker City created a dangerous condition, or likewise, that it knew or should have known of any dangerous condition.

(3) Plaintiff presented two liability witnesses at trial, and they admitted to not knowing why the rod fell over.

(4) In the absence of any evidence as to what caused the pole to fall, the jury was left to speculate as to why it may have done so, and moreover, to speculate about how Quaker City may have breached any duty owed.

IV. DISCUSSION

A. Plaintiff’s Appeal for New Trial on Damages

1. Wording of the Jury Verdict Sheet — Question No. 4

Plaintiff’s appeal that he is entitled to a new trial on damages should be denied because his objections to the wording of the jury verdict sheet have been waived for failure to make timely objections. Plaintiff contends that we erred in requiring that question no. 4 be worded as it was, specifically as to whether the left total knee replacement surgery “was caused” by this incident, and that the plaintiff objected to this wording. Plaintiff argues that the issue for the jury was not whether this incident “caused” plaintiff’s left knee replacement; rather, the issue was whether this incident was “a factual cause” of plaintiff’s need for knee replacement surgery. Plaintiff states that this distinction in wording was critically important given that plaintiff’s left knee was arthritic (and yet completely functional prior to this incident, as admitted by defendant’s medical expert), but would in all likelihood eventually need to be replaced at some point in the future.

It is “axiomatic that, in order to preserve an issue for review, litigants must make timely and specific objections during trial and raise the issue in post-trial motions.” Harman ex rel. Harman v. Borah, 562 Pa. 455, 471, 756 A.2d 1116, 1124 (2004). The reason timely and specific objections at trials are necessary is to provide the trial court with an opportunity to correct any alleged trial error at the earliest opportunity. Id.

Here, plaintiff did not object to the verdict sheet during the trial proceedings and, thus, his objections in the post-trial motion have been waived. Furthermore, plaintiff had at least three opportunities to raise his objections to the verdict sheet. On the first occasion, plaintiff was specifically asked about question no. 4. The following discussion took place:

“The Court: There is a question that was agreed upon by counsel for the plaintiff and for the defendant, Quaker City, that the questions they are going to ask the jury is, whatever question that ends up to be, but the wording is going to be this, do you find that the plaintiff’s left total knee replacement was caused by the accident, yes or no.
“If a jury answers yes, both of you have had a stipulation that you will pay for the medical bills in the amount of — I don’t know what it is, 50, $60,000.
“Mr. Ridenour: In that ball park.
“The Court: Whatever you agree on stipulation.
“So if the jury answers yes, you must automatically pay them for the medical bills.
“So agreed?
“Mr. Coppock: Yes.
“The Court: Plaintiff’s counsel agrees. Defense counsel agrees.” (N.T. 2/20/07 pp. 162-63.)

On the second occasion, we read all five questions on the verdict sheet, and then asked, “Is there any problem with any of these questions?” Plaintiff’s counsel responded, “I don’t believe so, your honor.” (NT. 2/20/07 p. 166.)

On the third occasion, on the following day at trial, the verdict sheet again was brought up. The court asked the parties, “Is there any other objection to any of the other questions?” There, plaintiff’s counsel again made no objection to question no. 4, regarding plaintiff’s total knee replacement. (N.T. 2/21/07 pp. 4-7.)

2. Proposed Jury Verdict Sheet — Question No. 5

Plaintiff’s appeal for a new trial on damages should be denied because the proposed jury verdict question no. 5 was properly rejected through the discretionary power of the court and the issues raised in proposed jury verdict question no. 5 were addressed in other jury instructions. Plaintiff argues that the court erred in not submitting the following proposed jury verdict question no. 5, which asked “do you find that Mr. Kearton was required to undergo left total knee replacement surgery sooner than he otherwise may have had to because of this incident?”

A party is not entitled to special findings, and submitting them to a juiy is left to the discretion of the trial court. Willinger v. Mercy Catholic Medical Center, 482 Pa. 441, 445-46 n.4, 393 A.2d 1188, 1190 n.4 (1978). A trial judge may grant or refuse a request for specific findings on the basis of whether such would add to a logical and reasonable understanding of the issue. Id. “To permit the jury to return special findings, where they are unnecessary, can create misleading issues and defeat justice.” Id.; Greet v. Arned Corporation, 412 Pa. 292, 297, 194 A.2d 343, 345 (1963).

Here, the jury was fully aware of the issues regarding plaintiff’s left total knee replacement surgery through question no. 4, which asked whether plaintiff’s knee replacement was caused by the incident. This question was not improper, misleading nor confusing. Additionally, the court properly instructed the jury on “factual cause” and then properly reflected the necessity for “factual cause” on the jury verdict sheet as to question no. 2. Furthermore, the jury was also asked, through questions nos. 3 and 4, to make two special findings, regarding whether the medical treatment plaintiff received to his lower back and left knee were necessitated by the accident. Thus, the court, in its discretionary power to reject special findings, properly refused plaintiff’s request because plaintiff’s proposed question was unnecessary in light of the other jury questions that addressed the same issue.

3. Plaintiff’s Proposed Points for Charge Nos. 8 and 9

Plaintiff is not entitled to a new trial on damages regarding plaintiff’s proposed points for charge nos. 8 and 9 because the court properly gave the Pennsylvania Suggested Standard Jury Instructions for pre-existing conditions and contributing causes. Plaintiff contends that the court erred by not charging the jury on plaintiff’s proposed points for charge no. 8 and no. 9, which plaintiff contends are correct statements of the law as to legal liability for aggravation of a pre-existing condition.

A trial court is not required to give “cumulative” jury instructions proposed by the parties even if they are better or clearer than the standard instructions. Stewart v. Motts, 539 Pa. 596, 608, 654 A.2d 535, 541 (1995). The test is only whether the trial court gave “adequate instructions.” Id.

Here, plaintiff has waived this issue because plaintiff’s counsel made no objections to the standard jury instructions when the court advised the parties it would be giving these instructions. Assuming, arguendo, that plaintiff’s counsel did not waive this issue, plaintiff’s contentions regarding the proposed points for charge nos. 8 and 9 are without merit. The Pennsylvania Suggested Standard Jury Instruction adequately informed the jury regarding the aggravation of pre-existing conditions and contributory causes.

4. Jury’s Award

Plaintiff is not entitled to a new trial on the issue of damages because the amount of the verdict was adequate compensation for his injuries. Plaintiff contends that his expert witness’ medical testimony proved that plaintiff suffered from a herniated disc that resulted in severe back pain radiating into his legs and continues up until the present day. Additionally, plaintiff contends that defendant presented no expert medical testimony to contradict plaintiff’s medical expert witness, Robert A. Ruggiero Jr. M.D. Finally, plaintiff argues that the award was inadequate because the jury specifically found in a jury question that plaintiff’s lower back injury was caused by the incident.

The standard for setting aside an inadequate jury verdict as “when it appears to have been the product of passion, prejudice, partiality, or corruption, or where it clearly appears from uncontradicted evidence that the amount of the verdict bears no reasonable relation to the loss suffered by the plaintiff.” Davis v. Mullen, 565 Pa. 386, 391, 773 A.2d 764, 766 (2001). In light of this standard, reversal of an inadequate verdict is only appropriate where “the injustice of the verdict stands forth like a beacon”. Id. Moreover, in reaching its verdict, the jury is free to reject a plaintiff’s subjective complaints, as well as any expert’s opinions based upon those complaints. Van Kirk v. O’Toole, 857 A.2d 183, 186 (Pa. Super. 2004).

Here, the jury awarded plaintiff $40,000 plus an additional $7,119.55 for the lower back injury that occurred as a result to the present knee incident, for a total amount of $47,119.55. The court finds this to be a fair and just compensation for plaintiff’s injuries.

Even if the jury believed that plaintiff suffered a lower back injury, the jury was free to reject plaintiff’s subjective complaints, as well as expert’s opinions based upon those complaints. See Van Kirk, supra. Plaintiff’s medical expert witness, Dr. Ruggiero, acknowledged that an MRI conducted of plaintiff’s lower back prior to the present incident on May 1,1997, revealed he already had a disc herniation. Thus, the jury had grounds to reasonably doubt the severity of plaintiff’s back injuries caused by the incident since plaintiff was shown to have preexisting lower back problems. Dr. Ruggiero stated that a 1997 study showed that plaintiff had a disc herniation in the central part of his lower back. (Deposition of Robert A. Ruggiero 02/08/07 p. 112.)

Dr. Ruggiero also confirmed that an EMG conducted on October 22, 2003, showed that plaintiff had a “chronic lumbar radiculopathy.” Id. at 76. He explained that plaintiff had a “long-standing radiculopathy or nerve irritation” and that the back pain was “more of a long-standing or maybe prior injury.” Id. Furthermore, Dr. Ruggiero stated that plaintiff had told him that he experienced soreness in his lower back prior to the incident, that “it will be sore but not painful.” Id. at 112.

Although plaintiff inserted in his brief in support of his motion for a new trial on damages that he will need lumbar fusion surgery, Dr. Ruggiero stated that plaintiff may not be a candidate for this surgery until he underwent a discography. Id. at 114-15. This test would determine whether plaintiff’s herniation was the source of his lower back pain.

However, plaintiff has not undergone this test.

Next, plaintiff argues that defendant did not present any expert witness testimony to rebut plaintiff’s case. However, defendant is not obligated to rebut plaintiff’s case. Plaintiff must prove his own case and then it is up to a jury to believe or disbelieve plaintiff’s claim.

However, defendant did offer the expert medical testimony of Alexander A. S apega who testified that plaintiff did not make any complaints regarding lower back pain at the emergency room on the date of the incident in question and that this was inconsistent with someone who allegedly suffered a severe disc injury.

Finally, plaintiff contends that the award was inadequate because the jury specifically found in a jury question that plaintiff’s lower back injury was caused by the incident. However, the answer to the special finding only addressed a cause of plaintiff’s injury, but did not ask the jury members the extent of plaintiff’s damages.

Jury verdict sheet question no. 5 addressed plaintiff’s damages specifically and the jury awarded plaintiff $40,000 plus medical expenses.

Thus, plaintiff’s award of damages was adequate compensation that bears a reasonable relation to his injuries, and it was not the “product of passion, prejudice, partiality, or corruption.” See Mullen, 565 Pa. at 391, 773 A.2d at 766.

B. Defendant’s Appeal for Judgment n.o.v.

1. Legal Standard

“There are two bases upon which a judgment n.o.v. can be entered: one, the movant is entitled to judgment as a matter of law and/or two, the evidence is such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant.

“With the first, the court reviews the record and concludes that even with all factual inferences decided adverse to the movant the law nonetheless requires a verdict in his favor....

“[Wjith the second, the court reviews the evidentiary record and concludes that the evidence was such that a verdict for the movant was beyond peradventure.” Campo v. St. Luke’s Hospital, 755 A.2d 20, 23 (Pa. Super. 2000). (citations omitted) Therefore, the court was correct in its decision not to grant judgment notwithstanding the verdict.

2. Possessor of Land — Dangerous Condition

Defendant is not entitled to a judgment n.o.v. because defendant owed a duty to plaintiff to protect business invitees from unreasonable risks and defendant either knew, or should have known, of the dangerous condition that existed on the premises. Defendant argues that there was no evidence presented at trial that defendant created any dangerous condition and that the evidence presented by plaintiff’s witnesses was that they did not know who had placed the poles there. Additionally, defendant argues that it was never established that the pole which allegedly struck plaintiff had been one of the poles that witnesses saw leaning on the comer wall prior to the accident and that neither of plaintiff’s witnesses knew what caused the pole to fall. Furthermore, defendant contends that there was not any notice that a dangerous condition existed.

A business invitee is defined in the Restatement (Second) of Torts, §332(3) as:

“Section 332. Invitee defined
“(3) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.”

It is well settled that the issue of whether a dangerous condition exists is not a question of law but rather a question of fact for the jury to resolve. Dean v. PennDOT, 561 Pa. 503, 751 A.2d 1130 (2000); Kilgore v. City of Philadelphia, 553 Pa. 22, 717 A.2d 514 (1998); PennDOT v. Patton, 546 Pa. 562, 686 A.2d 1302 (1997).

“ ‘Whether a duty exists under a particular set of facts is a question of law.’ Petrongola v. Comcast-Spectacor L.P, 789 A.2d 204, 209 (Pa. Super. 2001) (quoting Herczeg v. Hampton Township Municipal Authority, 766 A.2d 866, 871 (Pa. Super. 2001), appeal denied, 567 Pa. 742, 788 A.2d 376 (2001)), appeal denied, 569 Pa. 694, 803 A.2d 736 (2002). ‘The duty owed to a business invitee is the highest duty owed to any entrant upon land. The landowner is under an affirmative duty to protect a business visitor not only against known dangers but also against those which might be discovered with reasonable care.’ Emge v. Hogosky, 712 A.2d 315, 317 (Pa. Super. 1998). (citation omitted) In determining the scope of duty property owners owe to business invitees, we have relied on Restatement (Second) of Torts §343, which provides:

“A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land, if but only if, he:
“(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk to such invitees, and
“(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
“(c) fails to exercise reasonable care to protect them against the danger.
“See Neve v. Insalaco’s, 771 A.2d 786, 790 (Pa. Super. 2001) (quoting Restatement (Second) of Torts §343).” Campisi v. Acme Markets Inc., 915 A.2d 117, 119 (Pa. Super. 2006).

Moreover, while the mere occurrence of an accident does not establish negligence, negligence may be established by circumstantial evidence. Where there can be a reasonable inference drawn from the facts that an accident was caused by negligence, the issue is one for the jury. Yesko v. Baille Industries Inc., 311 Pa. Super. 605, 458 A.2d 268 (1983); Laubach v. Haigh, 433 Pa. 487, 252 A.2d 682 (1969); Gash v. Lautsenhezer, 405 Pa. 312, 176 A.2d 90 (1961); Carter v. United Novelty & Premium Co., 389 Pa. 198, 132 A.2d 202 (1957).

Here, defendant’s judgment n.o.v. appeal should be denied because the jury found that a dangerous condition did, in fact, exist and defendant owed plaintiff a duty to inspect the premises with reasonable care as a matter of law since plaintiff was a business invitee. With all factual inferences decided adverse to the movant defendant, the law does not require a verdict in defendant’s favor.

The evidence adduced at trial showed that several 12-foot long, steel poles were located in the same room where auction attendees were permitted. (N.T. 2/12/07 pp. 165-66.) These poles were standing up and leaning against the wall in the vicinity of approximately 15-20 people. (N.T. 2/12/07 p. 158.) The jury may have found the placement of these steel poles standing in the corner to be a dangerous condition on the premises.

The issue of whether a dangerous condition exists is not a question of law, but rather a question for the jury to decide. See Dean v. PennDOT, 561 Pa. 503, 751 A.2d 1130 (2000).

Furthermore, since plaintiff was an auction attendee and he was there to bid on items being auctioned off, this court found plaintiff to be a business invitee of defendant because plaintiff was invited to enter the land for a purpose directly or indirectly connected with business dealings with the possessor of the land.

Under the Restatement (Second) of Torts, §332(3), a business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of land. Since plaintiff was a business invitee, defendant owed plaintiff a duty of reasonable care to discover dangerous conditions that would be an unreasonable risk to the invitee.

Plaintiff’s witness that accompanied him to the auction, Maria Press, testified that that she saw these steel poles leaning up against the wall for at least 35 to 40 minutes before the incident. (N.T. 2/12/07 p. 163.)

Eric Merback, the president and sole shareholder of the defendant, testified that it was his concern to keep the premises safe for the attendees and that had he seen the poles standing against the wall, he would have removed them. (N.T. 2/16/07 pp. 40, 41, 48.)

Defendant also had employees stationed on the premises and walking around while the auction was taking place to ensure the attendees’ safety. (N.T. 2/16/07 pp. 52-53.)

Furthermore, while plaintiff and his witness, Ms. Press, did not actually see the pipe fall down and hit plaintiff’s knee, nor did they have first-hand knowledge as to what caused it to fall over, circumstantial evidence can prove negligence on the part of defendant. See Yesko, 311 Pa. Super. 605, 458 A.2d 268, supra.

Circumstantial evidence consists of proof of facts, or circumstances, from which it is reasonable to infer the existence of another fact. It is enough if the plaintiff produces evidence that may properly be found by the jury to justify an inference that the defendant’s negligence was the proximate (legal) cause of the accident because such evidence outweighs, even though it does not exclude, an inference that the defendant was not negligent or that the defendant’s negligence was not the proximate cause of the accident. Smith v. Bell Telephone Company, 397 Pa. 134, 153 A.2d 477 (1959); Lear v. Shirk’s Motor Express Corporation, 397 Pa. 144, 152 A.2d 883 (1959).

Therefore, a reasonable jury could find that a dangerous condition existed in 12-foot steel pipes leaning freely against the wall at the auction and that the dangerous condition existed for a sufficient amount of time to put defendant, and defendant’s employees, on notice of the dangerous condition. The jury may have also inferred, through circumstantial evidence, that the object that hit plaintiff’s knee was one of the steel pipes that Ms. Press testified seeing during the 35 to 40 minutes prior to the accident.

Mr. Brigante testified that he observed these poles leaning against the wall. The rods were not an item tagged for auction sale. After about five to 10 minutes in the area, Mr. Brigante was struck on the left wrist from behind by a falling rod. The rod then deflected off of him and struck plaintiff on the back of the left knee. He observed someone moving away from the area where the rod was immediately after the incident.

Thus, defendant’s appeal for judgment n.o.v. should be denied because (1) a reasonable jury could find that a dangerous condition existed, and (2) defendant owed plaintiff a duty to exercise reasonable care to keep the premises safe from unreasonable risks as a matter of law since plaintiff was a business invitee.

C. Delay Damages

Plaintiff contends that he is entitled to delay damages for the period of time from April 12,2006 through February 23, 2007.

Pennsylvania Rule of Civil Procedure 238 provides, in pertinent part:

“Rule 238. Damages for delay in actions for bodily injury, death or property damage
“(a)(1) At the request of the plaintiff in a civil action seeking monetary relief for bodily injury, death or property damage, damages for delay shall be added to the amount of compensatory damages awarded against each defendant or additional defendant found to be liable to the plaintiff in the verdict of a jury, in the decision of the court in a non-jury trial or in the award of arbitrators appointed under section 7361 of the Judicial Code, 42 Pa.C.S. §7361, and shall become part of the verdict, decision or award.
“(3) Damages for delay shall be calculated at the rate equal to the prime rate as listed in the first edition of the Wall Street Journal published for each calendar year for which the damages are awarded, plus one percent, not compounded.
“(3)(i) If a motion for post-trial relief has been filed under Rule 227.1 and a motion for delay damages is pending, a judgment may not be entered until disposition has been made of all motions filed under Rule 227.1 and this rule.”

Here, the court finds for plaintiff and shall be awarded $2,931 in delay damages from the time period of April 12,2006 through February 23,2007. The period of time from April 12, 2006 through December 31, 2006, is to be computed at the yearly rate of 8.25 percent. The period of time from January 1, 2007 through February 23, 2007, is to be computed at the yearly rate of 9.25 percent.

V. CONCLUSION

Plaintiff’s appeal for new trial on damages should be denied.

Plaintiff’s appeal for delay damages should be granted in the amount of $2,931.

Defendant’s appeal for judgment n.o.v. should be denied.

      . Kearton v. Quaker City Auctioneers Inc.'s verdict sheet is attached. (Not published herein.)