author: MONTEMURO, Judge:

text:
    588 A.2d 528
    COMMONWEALTH of Pennsylvania v. Julio GONZALEZ, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 9, 1991.
    Filed March 22, 1991.

      Kenneth G. Gormley, Pittsburgh, for appellant.
    Harriet Bromberg, Asst. Dist. Atty., Philadelphia, for Com.
    Before WIEAND, MONTEMURO and HESTER, JJ.
   MONTEMURO, Judge:

Appellant, Julio Gonzalez, appeals from a judgment of sentence entered pursuant to appellant’s conviction for cruelty to animals, 18 Pa.C.S.A. § 5511(h.l). Appellant’s sentence was suspended and he was directed to pay court costs and certain fines. This timely appeal followed. Appellant raises four challenges to the constitutionality of the cruelty to animals statute: (1) the statute improperly delegates investigatory and enforcement authority to agents of societies for the prevention of cruelty to animals; (2) the statute is preempted by federal law; (3) the statute is overbroad and vague; and (4) the seizure and destruction of the animals by the SPCA without notice or a hearing violates due process. We conclude that the destruction of the animals without notice or a hearing violated due process; nevertheless, we affirm the judgment of sentence.

Evidence at trial revealed that on March 19, 1987, a police officer went to appellant’s residence in Philadelphia to execute a search warrant in an unrelated matter. In the basement of the house, the officer observed twenty-three roosters in cages; some of the roosters were groomed in a manner specific to cock fighting, that is, the fleshy appendages on their heads and necks, known as combs and wattles, were cut, and the feathers on the chest and leg area were shaven. The officer also found paraphernalia associated with cock fighting, different types of medicines and hormones, a trophy inscribed with “Number One Bird” and a newspaper clipping to the effect that possession of birds for fighting was a felony in Pennsylvania.

After notification to the Pennsylvania Society for the Prevention of Cruelty to Animals (“S.P.C.A.”), the officer was joined by Agent Lovett, an anti-cruelty investigator employed by the S.P.C.A. Agent Lovett confirmed the police officer’s suspicions that the birds were used for cock fighting. The S.P.C.A. removed the roosters and took them to the local S.P.C.A. shelter. Appellant was arrested by the police and subsequently charged and convicted of twenty-three counts of cruelty to animals.

In his pre-trial motion to quash the information and in his post-trial motions, appellant challenged the constitutionality of the cruelty to animals statute, which provides, in relevant part:

(h.l) Animal fighting. — A person commits a felony of the third degree if he:
(3) owns, possesses, keeps, trains, promotes, purchases or knowingly sells any animal for animal fighting;
# * * # * *
(i) Power to initiate criminal proceedings. — An agent of any society or association for the prevention of cruelty to animals, incorporated under the laws of the Commonwealth, shall have the same powers to initiate criminal proceedings provided for police officers by the Pennsylvania Rules of Criminal Procedure. An agent of any society or association for the prevention of cruelty to animals, incorporated under the laws of this Commonwealth, shall have standing to request any court of competent jurisdiction to enjoin any violation of this section.
(j) Seizure of animals kept or used for animal fighting. — Any police officer or agent of a society or association for the prevention of cruelty to animals incorporated under the laws of this Commonwealth, shall have power to seize any animal kept, used, or intended to be used for animal fighting. When the seizure is made, the animal or animals so seized shall not be deemed absolutely forfeited, but shall be held by the officer or agent seizing the same until a conviction of some person is first obtained for a violation of subsection (h.l). The officer or agent making such seizure shall make due return to the justice of the peace before whom the complaint is heard, of the number and kind of animals or creatures so seized by him, and it shall be the duty of the justice of the peace hearing the complaint, in case of a conviction, to make the forfeiture of such animals or creatures seized a part of the sentence. Where an animal is thus seized, the police officer or agent is authorized to provide such care as is reasonably necessary, and where any animal thus seized is found to be disabled, injured or diseased beyond reasonable hope of recovery, the police officer or agent is authorized to provide for the humane destruction of the animal. The cost of the keeping, care and destruction of the animal shall be paid by the owner thereof____
******
(1) Search warrants. — -Where a violation of this section is alleged, any issuing authority may, in compliance with the applicable provisions of the Pennsylvania Rules of Criminal Procedure, issue to any police officer or any agent of any society or association for the prevention of cruelty to animals duly incorporated under the laws of this Commonwealth a search warrant authorizing the search of any building or any enclosure in which any violation of this section is occurring or has occurred, and authorizing the seizure of evidence of the violation including, but not limited to, the animals which were the subject of the violation____

18 Pa.C.S.A. §§ 5511(h.l), (i), (j), (*)•

Appellant first claims that the delegation of “police power” to animal welfare agents under § 5511 to initiate felony proceedings, to make arrests and to seize and destroy forfeited property is unconstitutional. We agree with the Commonwealth’s position that appellant is without standing to complain about the statute’s investigation and arrest provisions. “It is a fundamental principle of constitutional law that a challenge to a statute may not be raised in the abstract but must find its basis in an injury to the party seeking to have the enactment declared constitutionally infirm.” Commonwealth v. Bell, 512 Pa. 334, 516 A.2d 1172 (1986) (citations omitted) (where defendant received actual pre-trial notice of Commonwealth’s intention to seek mandatory sentence under statute, defendant lacked standing to challenge statute’s failure to require pre-trial notice). Here, the presence of the birds was discovered by a police officer serving a search warrant on a unrelated matter. Upon discovering the evidence relating to cock fighting, the officer summoned a representative of the humane society who concurred in the officer’s opinion as to the use of the roosters. Appellant was arrested by the police officer for cruelty to animals and pursuant to the warrant, the animals were seized and taken to the S.P.C.A. shelter. The involvement of the animal welfare agents was therefore peripheral to the execution of an imdisputedly valid warrant of search. Accordingly, appellant lacks standing to challenge the legislative grant of power to representatives of animal humane societies.

Appellant next asserts that § 5511 is preempted by the federal statute, 7 U.S.C. § 2156, which makes it unlawful to buy, sell, deliver, or transport animals in interstate commerce for purposes of having the animal participate in animal fighting, or to sponsor or exhibit an animal in any animal fighting venture. 7 U.S.C. § 2156(a), (b). The federal statute does not prohibit the passage of fighting birds in interstate commerce or the sponsorship of a bird in an animal fight if the fight is to take place in a state where such activities are lawful, 7 U.S.C. § 2156(d). Importantly, the federal legislation does “not supersede or otherwise invalidate any such State ... legislation or ordinance relating to animal fighting ventures except in case of a direct and irreconcilable conflict” between the State regulation and the federal regulation of animal fighting. 7 U.S.C. § 2156(h).

“ ‘The question of whether a certain state action is preempted by federal law is one of congressional intent.’ ____ To discern Congress’ intent we examine the explicit statutory language and the structure and purpose of the statute.” Ingersoll-Rand v. McClendon, 498 U.S. -, -, 111 S.Ct. 478, 482, 112 L.Ed.2d 474, 483 (1990). Here, the statutory language contains a clear expression of congressional intent on the extent to which § 2156 pre-empts state law. Section 2156(h) reserves in the individual states the power to regulate animal fighting ventures, absent a direct or irreconcilable conflict between the state and federal statutes. 7 U.S.C. § 2156(h). Thus, Congress did not intend to pre-empt completely the field of animal fighting legislation.

Appellant maintains that Pennsylvania’s animal cruelty statute creates an “irreconcilable conflict” with the federal law. Appellant argues that because the Pennsylvania statute outlaws the ownership and possession of fighting birds, even where there is no proof of fighting in Pennsylvania, the Pennsylvania law conflicts with the federal statute insofar as the federal provision does allow the commercial exchange and transportation of fighting cocks in connection with fights taking place in states where cockfighting is legal. We perceive no such irreconcilable conflict. The federal statute prohibits the “buying, selling, delivering, or transporting” of animals relative to animal fighting, except where the fight involves birds and is to take place in a state which allows cockfighting. The Pennsylvania statute prohibits animal fighting and ownership and possession of birds for fighting purposes in Pennsylvania. Thus, Pennsylvania’s statute reflects the same congressional policy reflected in the federal law, that is, to curtail the use of animals for fighting purposes. In cases involving the transportation of birds in interstate commerce to a state which allows cockfighting, the Pennsylvania animal cruelty statute may not be used to interfere with their movement, as the federal statute does allow the use of commerce for this limited purpose. See Commonwealth v. Doty, 345 Pa.Super. 374, 389, 498 A.2d 870, 877 (1985), appeal denied, cert. denied 479 U.S. 853, 107 S.Ct. 185, 93 L.Ed.2d 119 (1986) (where some provisions of a statute are preempted by a federal statute, “the remaining provisions are not affected thereby unless the invalid provisions are so essentially and inseparably connected with the valid provisions that they cannot be executed in accordance with the legislative intent.”). There are no allegations in the instant case that the roosters discovered in appellant’s basement were intended for use in a state where cockfighting is legal.

We disagree with appellant’s argument that simply because there may be situations in which the fighting bird found in the possession of a person in Pennsylvania may eventually be sold or delivered to a place where cockfighting is lawful, the Pennsylvania statute is inconsistent with the federal Act. As noted above, where the bird is in interstate commerce and intended for use in a fight which is to take place in a state which allows such animal fighting, Pennsylvania law will not bar the activities related to the animal.

Appellant next argues that section 5511(h.l)(3) of the animal cruelty statute, which makes it a felony to own, possess, keep, train, promote, purchase or knowingly sell any animal “for animal fighting,” is unconstitutionally vague and overbroad, in violation of the Fourteenth Amendment to the United States Constitution and Article 1, § 1 of the Pennsylvania Constitution.

A statute is unconstitutionally vague where it fails to provide reasonable notice of the conduct to the person charged with violating its prohibitions. Commonwealth v. Heinbaugh, 467 Pa. 1, 5, 354 A.2d 244, 246 (1976); Commonwealth v. Tavares, 382 Pa.Super. 317, 324, 555 A.2d 199 (1989), appeal denied 524 Pa. 619, 571 A.2d 382 (1989); Commonwealth v. Westcott, 362 Pa.Super, 176, 195, 523 A.2d 1140 (1987), appeal denied 516 Pa. 640, 533 A.2d 712 (1987). Where the terms of the statute are so vague that “ ‘persons of common intelligence must necessarily guess at its meaning and differ as to its application,’ ” the statute will be deemed violative of due process. Commonwealth v. Sanders, 380 Pa.Super. 78, 94, 551 A.2d 239, 247 (1988), appeal denied 522 Pa. 575, 559 A.2d 36 (1989), quoting Fabio v. Civil Service Comm’n, 489 Pa. 309, 414 A.2d 82 (1980).

However, the constitutional prohibition against vagueness does not invalidate every statute which could have been drafted with greater precision. Due process requires only that the law give sufficient warning so that individuals may conform their conduct so as to avoid that which the law forbids. Rose v. Locke, 423 U.S. 48, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975); Wainwright v. Stone, 414 U.S. 21, 94 S.Ct. 190, 38 L.Ed.2d 179 (1973).

Commonwealth v. Westcott, supra, 362 Pa.Super. at 196, 523 A.2d at 1149-50.

Importantly, “the specificity of a statute must be measured against the conduct in which the party challenging the statute has engaged,” and in view of the specific facts of the case before us. Commonwealth v. Heinbaugh, supra, 467 Pa. at 4-5, 354 A.2d at 245, citing United States v. Mazurie, 419 U.S. 544, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975). Thus, “ ‘one to whose conduct a statute clearly applies may not successfully challenge it for vagueness.” Commonwealth v. Tavares, supra 382 Pa.Super. at 324, 555 A.2d at 202, quoting Hoffman Estates v. Flipside, Hoffman Estates Inc., 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982).

Instantly, appellant claims that § 5511(h.l)(3) is unconstitutionally vague because the statute fails to specify what constitutes an animal which is owned “for animal fighting,” and the statute invites arbitrary enforcement. Brief for Appellant at 32, 35. Appellant relies on the expert testimony which he produced at trial to the effect that a fighting bird’s physical characteristics, such as cut combs and wattles, may be shared by gamefowl raised for breeding or showing purposes.

In light of the standards set forth in the above-cited caselaw and the particulars of appellant’s conduct, we conclude that appellant’s claims of statutory vagueness must fail. Appellant was convicted of possessing, owning and keeping gamefowl for animal fighting. The statute defines “animal fighting” as “[flighting or baiting any bull, bear, dog, cock or other creature.” 18 Pa. C.S.A. § 5511(q). We find no ambiguity in the phrase “animal fighting.” Indeed, the meaning of the word fighting is a matter of common knowledge. Cf. Commonwealth v. Nelson, 514 Pa. 262, 523 A.2d 728 (1987), certiorari denied 484 U.S. 928, 108 S.Ct. 293, 98 L.Ed.2d 253 (1987). Webster’s defines “cockfight” as “a contest of gamecocks usu. fitted with metal spurs.” Webster’s New Collegiate Dictionary (1981).

Although appellant’s convictions for possession, ownership and keeping of roosters for fighting purposes rested in part on the fact that the birds found in appellant’s possession were “dressed for fighting,” that is, their wattle or comb was removed and/or the feathers from their breast and thigh area were plucked or removed, this fact combined with the other evidence shows that the animals were intended or had already been used for fighting purposes, rather than for breeding or showing purposes. The gamefowl had wounds in the face, chest, leg and eye areas which were consistent with cockfighting insofar as the wounds could have been caused by some sharp object or by a bite from another cock; some of the wounds still had blood clots on them. Also found on appellant’s premises were sharp metal ckw-like objects known as spurs which are fitted to the fighting rooster’s leg to be used in fighting another rooster. The investigating police and S.P.C.A. agent found wax which is used to attach the spur to the bird, special vitamins and hormones to keep the birds healthy and strong, clippers and scissors, and a pit identical to pits in which cockfighting takes place. Further, the roosters were found housed in the same manner as fighting cocks are kept, that is, in separate cages so as to prevent them from fighting each other. We conclude that Pennsylvania’s animal cruelty statute provides sufficient notice to a person of average intelligence that the phrase “for animal fighting” would apply to the birds found in appellant’s possession. As appellant’s conduct fell well within the scope of the statutory language, appellant may not complain of vagueness.

Appellant claims that the statute is overbroad because the law permits prosecution of individuals for mere possession of chickens who have had their combs and wattles trimmed and feathers shaved, as well as individuals who own gamefowl but never fight their animals in Pennsylvania, individuals who never fight in Pennsylvania but intend to go elsewhere where the sport is legal, and individuals who never fight at all but breed gamefowl for shows and fairs____” Brief for Appellant at 32, 36. A statute is overbroad where its language prohibits constitutionally protected conduct. Commonwealth v. Stenhach, 356 Pa.Super. 5, 25, 514 A.2d 114 (1986), appeal denied 517 Pa. 589, 534 A.2d 769 (1987) (where statute criminalizing hindrance of prosecution as applied to criminal defense attorneys implicated fourth, fifth and sixth amendments, statute was unconstitutionally broad). Where First Amendment rights are not involved, a litigant may not attack the facial over-breadth of a statute unless his or her own rights are directly affected by the asserted overbreadth. Commonwealth v. Stock, 346 Pa.Super. 60, 66, 499 A.2d 308 (1985), appeal denied.

We conclude that appellant lacks standing to challenge the statute’s facial overbreadth. As detailed above, appellant was prosecuted for owning and possessing roosters for fighting purposes; there is no claim here that appellant’s animals were being or intended to be fought in a state in which cockfighting is legal, or that the creatures were bred for showing purposes. The Commonwealth proved that the physical characteristics of appellant’s birds were incident to cockfighting, rather than purely for aesthetic purposes. Thus, appellant’s own rights were not affected by the alleged overbreadth and we will not entertain his claim that the statute is unconstitutionally overbroad.

In his final argument, appellant asserts that the animal cruelty statute violates the due process clauses of the United States and Pennsylvania constitutions, as the statute allows the seizure and destruction of property, that is, animals, by the S.P.C.A. without prior notice or a hearing. Incident to his arrest, the animals found in appellant’s possession were seized by the humane authorities and eventually, because of illness allegedly stemming from the S.P.C.A.’s neglect and lack of due care, were humanely destroyed; appellant was not notified or afforded a hearing prior to the birds’ destruction. The statute in relevant part provides:

... When the seizure is made, the animal or animals so seized shall not be deemed absolutely forfeited, but shall be held by the officer or agent seizing the same until a conviction of some person is first obtained for a violation of subsection (h.l). The officer or agent making such seizure shall make due return to the justice of the peace before whom the complaint is heard, of the number and kind of animals or creatures so seized by him, and it shall be the duty of the justice of the peace hearing the complaint, in case of a conviction, to make the forfeiture of such animals or creatures seized a part of the sentence. Where an animal is thus seized, the police officer or agent is authorized to provide such care as is reasonably necessary, and where any animal thus seized is found to be disabled, injured or diseased beyond a reasonable hope of recovery, the police officer or agent is authorized to provide for the humane destruction of the ai imal____

18 Pa.C.S.A. § 55110).

Dr. Islam Gul, the chief veterinarian at the Pennsylvania S.P.C.A., testified at trial that the roosters were healthy and in “good shape” when they were brought into the shelter. N.T. October 17, 1989 at 26. Because the S.P.C.A. was not equipped to care for the roosters, the animals became sick and Dr. Gul ordered their destruction. Id. at 43. The killing of the birds occurred prior to appellant’s trial and conviction on the animal cruelty charges.

We agree that the procedure regarding destruction of the animals, as authorized by the statute and employed by the Pennsylvania S.P.C.A., violates due process. The United States Supreme Court employs a two-step analysis when analyzing claims that a state has violated an individual’s right to procedural due process. The first area of inquiry deals with whether there exists a “life, liberty, or property” interest protectable under the fourteenth amendment with which the state has interfered. If the court determines that the state has deprived an individual of a protectable interest, we move to the second step of the inquiry to determine whether the entity responsible for the alleged deprivation instituted constitutionally sufficient procedural protections. Kentucky Department of Corrections v. Thompson, 490 U.S. 454, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989). At the outset, we note that neither party disputes that the requirements of due process apply in this case, as the destruction of the chickens constituted a deprivation of appellant’s property, and was accomplished by the S.P.C.A. as an agent of the state.

“While not capable of exact definition, the basic elements of procedural due process are adequate notice, opportunity to be heard, and the chance to defend oneself before a fair and impartial tribunal having jurisdiction of the case.” Commonwealth v. Thompson, 444 Pa. 312, 316, 281 A.2d 856, 858 (1971). “When an individual is deprived of property by governmental action, he must be afforded at some point in the proceeding an opportunity to be heard. The point at which this hearing must take place, however, varies with the circumstances.” Cedarbrook Realty, Inc. v. Nahill, 484 Pa. 441, 447, 399 A.2d 374, 377 (1979). The United States Supreme Court has stated:

The constitutional right to be heard is a basic aspect of the duty of government to follow a fair process of decision making when it acts to deprive a person of his possessions. The purpose of this requirement is not only to ensure abstract fair play to the individual. Its purpose, more particularly, is to protect his use and possession of property from arbitrary encroachment-to minimize substantively unfair or mistaken deprivations of property, ---- So viewed, the prohibition against the deprivation of property without due process of law reflects the high value, in our constitutional and political history, that we place on a person’s right to enjoy what is his, free of governmental interference. See Lynch v. Household Finance Corp., 405 U.S. 538, 552 [92 S.Ct. 1113, 1122, 31 L.Ed.2d 424].
The requirement of notice and an opportunity to be heard raises no impenetrable barrier to the taking of a person’s possessions. But the fair process of decision making that it guarantees works, by itself, to protect against arbitrary deprivation of property. For when a person has an opportunity to speak up in his own defense, and when the State must listen to what he has to say, substantively unfair and simply mistaken deprivations of property interests can be prevented. It has long been recognized that “fairness can rarely be obtained by secret, one-sided determinations of facts decisive of rights.... [And n]o better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it.” Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 170-172, 71 S.Ct. 624, 647-49, 95 L.Ed. 817 (Frankfurter, J., concurring).

Fuentes v. Shevin, 407 U.S. 67, 80-81, 92 S.Ct. 1983, 1994, 32 L.Ed.2d 556 (1972).

The United States Supreme Court has expressed a preference for pre-deprivation hearings:

If the right to notice and a hearing is to serve its full purpose, then, it is clear that it must be granted at a time when the deprivation can still be prevented. At a later hearing, an individual’s possessions can be returned to him if they were unfairly or mistakenly taken in the first place. Damages may even be awarded to him for the wrongful deprivation. But no later hearing and no damage award can undo the fact that the arbitrary taking that was subject to the right of procedural due process has already occurred____

Id., 407 U.S. at 81-82, 92 S.Ct. at 1994-95.

Similarly, the Pennsylvania Supreme Court has stated:

We also recognize a preference for procedures which provide a citizen with protections before he is deprived of an interest protected by due process____ A citizen is best protected against arbitrary action when he is given an opportunity to challenge that action before it is taken. Not only is it easier to persuade the government to reconsider a decision before it is carried out, but the citizen is also protected against infringement on his interest for the period during which his challenge takes place. Even if the citizen prevails in proceedings which take place after government action is taken, he still has suffered an infringement on his interests during the period required for those proceedings. Thus, procedural protection should be given before the government takes action which threatens to deprive a citizen of an interest, unless important governmental interests, or the preservation of the interests of others, require otherwise. See Boddie v. Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971). The root requirement of due process is that “an individual be given an opportunity for a hearing before he is deprived of any significant property interest, except for extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event.” Id. (emphasis in original) (footnotes omitted).

PA. Coal Mining Ass’n v. Insurance Dept., 471 Pa. 437, 370 A.2d 685, 692 (1977).

In view of the particular circumstances presented by this case, we conclude that the provisions of Pennsylvania’s animal cruelty statute which allow the police or humane society to destroy animals without offering the owner the opportunity to be heard offend the basic standards of procedural due process articulated by the United States and Pennsylvania Supreme Courts.

The animal cruelty statute at issue here contains no provision for a either a pre-deprivation or post-deprivation hearing. The statute contains no requirement that the police or the humane society make a convincing showing before an independent tribunal that the animal’s health has deteriorated “beyond a reasonable hope of recovery” before destroying the animal. Nor does the statute provide the owner of the animal with an opportunity to confront and cross-examine the agents of the humane society as to their conclusion that destruction of the animal is necessary. The statute does not provide the owner of the animal the opportunity to assure that the animals receive the proper care pending the outcome of the criminal trial. Thus, the potential for abuse on the part of the police or humane society is tremendous. The statutorily authorized arbitrary deprivation of property strikes at the core of the notion of fair play embodied in the due process clause, and is precisely the kind of state action which is prohibited by the Fourteenth Amendment. The requirement of pre-deprivation notice and a hearing are particularly pressing where the property consists of animals, as many individuals develop deep attachments to their pets and would likely deem them noncompensable in monetary damages. Moreover, the situations in which an animal owner may remedy the negligent destruction of his or her property by the humane society is limited. See 42 Pa. C.S.A. § 8332.2 (granting immunity to officers, directors and trustees of nonprofit institutions for acts or omissions unless conduct falls “substantially below” the generally accepted standards exercised by persons in like circumstances). Although it is true that “due process is flexible and calls for such procedural protections as the particular situation demands;” Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972), here the statute offers absolutely no procedural protections against the arbitrary encroachment of an animal owner’s property rights. Given the nature of the deprivation of property rights at issue here, that is, the complete, albeit humane, destruction of the animals, we find that the only meaningful opportunity to ensure a fair process of decision-making is likely to be before the deprivation takes effect.

We agree with the Commonwealth’s position that the state has a legitimate interest in regulating animal cruelty and seizing animals which the police have probable cause to believe are being subjected to conduct prohibited by the statute. However, we perceive no overriding governmental interest reflected in the statute’s complete failure to guarantee animal owners the opportunity to be heard prior to the destruction of their animals which would outweigh the owners’ interest in assuring that the destruction is necessary or arranging for the proper care of the animals prior to the disposition of the criminal charges. The Commonwealth has asserted no state interest which would justify the denial of procedural due process in cases arising under the animal cruelty statute. We note that the statute requires the owner to shoulder the burden of the costs of the animal’s keeping and care; thus, the state may not claim to have a financial interest in having the animals destroyed prior to a hearing.

The Commonwealth analogizes this case to other situations involving the confiscation of contraband, such as narcotics and weapons, and the subsequent forfeiture of such property following conviction. Here, the animal cruelty statute requires that forfeiture of the animals be made a part of the sentence where the owner is found guilty of violating the statute. Appellant does not challenge the sentencing provision of the statute. We disagree that simply because an individual may subsequently be required to forfeit ownership of the animal, the state may prematurely destroy the animals without providing the owner with the opportunity to voice opposition to the proposed destruction.

We hold that the animal cruelty statute is unconstitutional insofar as the statute authorizes the destruction of animals without notification of the owner and without a hearing at which the owner may challenge the necessity of the destruction. As the provision of the statute is not “so essentially and inseparably connected with the valid provisions that they cannot be executed in accordance with the legislative intent,” the remaining provisions of the statute are not affected by our decision. Commonwealth v. Doty, supra 345 Pa.Super. at 389, 498 A.2d at 877.

We note that the only remedy sought by appellant arising from the asserted constitutional infirmities is vacation and reversal of his judgment of sentence. Our holding that the destruction of appellant’s animals without notice and a hearing violated due process does not warrant a reversal of appellant’s criminal sentence. As the violation in no way affected the adjudication of appellant's guilt, such a violation would more appropriately be remedied through a civil suit.

For the foregoing reasons, we affirm the judgment of sentence.

Judgment affirmed.

      . The out-of-state cases cited by appellant are inapposite, as they involve prosecutions of individuals accused of being spectators at, or present at, cockfights. None of the cases address whether the cocks were kept, owned, possessed, used, etc. “for animal fighting.”

      . We note that appellant has failed to state what constitutionally protected activity is implicated by the statute.

      . With regard to harm suffered by appellant, we note that appellant ultimately forfeited his property rights in the roosters by virtue of his conviction. See 18 Pa. C.S.A. § 551 l(j).


source: Caselaw Access Project

author: KELLY, Judge: TAMILIA, Judge,

license: Public Domain

text:
    588 A.2d 538
    Albert BILEC, Robert Brevko, Hugh Conlon, William A. Coulter, Ralph Drexler, Andrew J. Hertneky, Jr., Joseph Jacobson, Jr., Edward Kriscunas, Charles F. Lange, Albert J. Mack, George H. Miller, William A. Onderick, Howard Perry, Albert E. Reid, Donald W. Robinson, Edward P. Schneider, Robert J. Simcic, Elmer J. Wess and Audrey M. Brednick and Sylvia A. Sunanin, Personal Representatives, Appellants, v. AUBURN & ASSOCIATES, INC. PENSION TRUST, Robert Avondo, Wesley Deicas, Provident Mutual Life Insurance Co., and Fuhrer’s, Inc., v. Anthony J. MOSSO.
    Superior Court of Pennsylvania.
    Argued March 28, 1990.
    Filed March 22, 1991.
    Petition for Allowance of Appeal Denied Sept. 4, 1991.

      Joseph M. Maurizi, Pittsburgh, for appellants.
    W. Walter Braham, Jr., Pittsburgh, for Provident Mut., appellee.
    Before TAMILIA, KELLY and CERCONE, JJ.
   KELLY, Judge:

In this case we are called upon to determine whether the trial court properly upheld the enforcement of a non-competition pension forfeiture clause which had been placed by the appellee-employer, Auburn & Associates, Inc., into a contract it entered into with the appellee-insurer, Provident Mutual Insurance Co., for the administration of its employee pension plan against the appellants who were all former employees. We find that, the appellee-employer has failed to meet any of the criteria set forth by our Courts for the enforcement of a non-competition covenant against the appellants. Therefore, we reverse.

The relevant facts and procedural history of this case are as follows. The appellee-employer was a company which performed drafting and engineering services for various industrial manufacturing concerns in Pennsylvania. The appellants were all draftsmen who were hired by the appellee-employer between the years of 1955 and 1961. All of the appellants worked in drafting related non-managerial capacities until the time of their termination. The appelleeemployer established a company-run, in-house administered employee pension plan in 1953. In August of 1962, the appellee-employer entered into a contract with the appelleeinsurer to turn over the administration of the pension plan to the appellee-insurer. This contract was entitled the “Group Deposit Administrative Policy”. (GDAP) Pursuant to this contract, the appellee-insurer agreed to pay the retirement annuities of all of the appellee-employer’s eligible vested employees. The contract was subsequently amended in a policy entitled “Immediate Participation Guarantee”. (IPG) The non-competition clause which called for the forfeiture of the appellants’ pension benefits upon notice of termination with the appellee-employer and subsequent employment with a competing firm was included in both policies. The clause, which was essentially the same in both policies, read:

Anything in the foregoing to the contrary notwithstanding, a participant shall be entitled to no benefits hereunder if the Policyholder gives the Insurance Company written notice that the participant has terminated his employment due to the participant’s dishonesty or through any willful act in the course of his employment to the injury of the Employer or the participant’s fellow employees, or to enter the services of a firm which competes with the employer. The determination by the Policyholder that the participant has terminated employment under such circumstances shall be conclusive for the purposes of this policy.” (Emphasis supplied in the opinion of the court below.)

Trial Court Opinion at 2, citing Section VIII of the GDAP, titled “Termination of Employment;” and Section XII of the IPG titled “Termination of Employment or Status as Employee.”

All of the appellants left the service of the appelleeemployer between the years 1969 and 1974 to work for other drafting concerns. The last appellant to work for the appellee-employer, Howard Brednick, terminated his employment on July 31, 1974. With exception of complying with the non-competition clause contained in the contract between the appellee-employer and the appellee-insurer, all of the appellants, save one, met the requirements established by the appellee-employer for participation in the pension plan.

On August 31, 1975, the appellee-employer ceased doing business and terminated all of its salaried employees. Two years later, on November 15, 1977, the pension plan was terminated and the appellants were not awarded any pension annuity credits. The appellants instituted this lawsuit claiming that they were entitled to pension benefits. The trial court upheld the enforcement of the non-competition pension forfeiture clause. An appeal to this Court was quashed sua sponte due to the appellants’ failure to file post-trial motions. After this Court’s denial of appellants’ motion for reconsideration, appellants filed a motion in the trial court for leave to file exceptions nunc pro tunc. The trial court granted the motion. The appellees’ subsequent motion for reconsideration of the order granting appellants’ motion for leave to file exceptions nunc pro tunc was denied as was the appellants’ motion for post-trial relief. This appeal followed. The appellees then filed a motion to dismiss the appeal with this Court which was denied.

On appeal, the appellants have raised two issues for our consideration.

1. Whether the noncompete clause in the Immediate Participation Guarantee (IPG) Insurance Pension Plan Contract, which results in a forfeiture of vested pension benefits, is contrary to the public policy of this Commonwealth and therefore unenforceable.
2. Assuming, arguendo, the noncompete forfeiture clause is valid, whether the employment of appellants by existing companies which employ draftsmen and design engineers results in conduct which is inimical to the economic interests of their former employer.

(Appellants’ Brief at iii).

The appellants’ first contention is that the trial court erred in its determination that the instant non-competition pension forfeiture clause was not violative of the public policy of this Commonwealth. The appellants argue that as they were forced by the actions of the appellee-employer towards them to seek other employment, the appellee-employer should not be permitted to profit by its action by declaring their pensions forfeit. The appellants assert that it was inequitable to permit the appellee-employer to retain the proceeds of their pensions in light of the fact it was the appellee-employer’s own decision to withdraw from competition and eventually close the business that forced the appellants to leave its employ.

While we are not in agreement with the appellants’ blanket contention that all pre-ERISA forfeiture clauses are violative of the public policy of this Commonwealth, we do find that this particular forfeiture clause violates public policy of Pennsylvania in regards to the enforcement of covenants not to compete. Our reasoning for reaching this conclusion is as follows.

The appellee-employer established an employee pension plan in 1953, which until 1962, was self-administered. All of the appellants became employees of the appellee-employer during this time period. One of the fringe benefits of the appellants' compensation package was their eventual participation in the company administered pension trust. At the time the appellants began their careers, there was no record that their pension rights were contingent on their adherence to a non-competition clause.

In 1962, the appellee-employer entered into a contract with the appellee-insurer to administer the pension trust and provide retirement annuities to its employees. One of the clauses in this insurance contract between the parties provided that a participant could be deemed ineligible and receive no benefits under the plan if the employee terminated his employment to enter into the service of a firm which competed with the appellee-employer. The clause also provided that the appellee-employer’s determination that a participant was ineligible under the non-competition clause was conclusive for the purposes of the policy. The policy was amended in 1972 to provide that the appellee-employer was to give the appellee-insurer written notice of a participant’s forfeiture of rights under the policy.

Accordingly, we find the existence of two contracts. The first contract was an employment contract between the appellee-employer and all of the appellants. The provision of this employment contract included all of the appellants in the pension plan upon their attainment of the requisite age and the appropriate length of service without being subject to a non-competition clause in exchange for their services. The second contract was between the appellee-employer and appellee-insurer for the administration and pay out of the retirement pensions to all eligible participants. This second contract contained the restrictive non-competition covenant. Its implementation and application to the appellants, hired by the appellee-employer, before its effective date of August 15, 1962, presented a change in the conditions of appellants’ employment.

It is well settled that in Pennsylvania pensions are viewed as contractual rights rather than gratuities. Lowe v. Jones, 414 Pa. 466, 200 A.2d 880 (1964); Kline v. Morrison, 353 Pa. 79, 44 A.2d 267 (1945); Levitt v. Billy Penn Corp., 219 Pa.Super. 499, 283 A.2d 873 (1971). “A wage-earner’s pension is not something which miraculously falls to him as manna from the sky. It is the fruit of the tree which he has planted, which he has nurtured with his continuous loyal service and watered with the sweat of his years of dedicated work.” Lowe v. Jones, supra, 414 Pa. at 469. Employers do not have the right to deprive former employees of their pension benefits without justification. Levitt v. Billy Penn Corp, supra.

Instantly, the appellee-employer has sought to deprive the appellants of the right to participate in the pension plan through the use of a restrictive non-competition covenant. This clause was inserted by the appellee-employer into a contract it entered into with the appellee-insurer for the administration of the pension trust and then applied this clause to all of the appellants.

The standard by which the validity of a restrictive covenant in an employment contact is judged in Pennsylvania is set forth in Piercing Pagoda, Inc. v. Hoffner, 465 Pa. 500, 351 A.2d 207 (1976). These three requirements are: (1) the covenant must relate to a contract for employment; (2) the covenant must be supported by adequate consideration; (8) the application of the covenant must be reasonably limited in both time and territory. Piercing Pagoda, Inc. v. Hoffner, supra, 465 Pa. 507, 351 A.2d at 210.

In order to apply these requirements to the facts instantly, we must first examine whether the non-competition clause relates to a contract for employment. When the appellants began their careers with the appellee-employer, the pension plan was administered by the appellee-employer and there is no record that the appellants’ eligibility to participate in the pension plan was subject to a non-competition clause. The non-competition clause makes its first appearance in 1962 when the appellee-employer contracted with the appellee-insurer to turn the administration of the pension trust over to the appellee-insurer. The restrictive covenant was not part of the contract between the appellants and the appellee-employer; rather, it was part of the appellee-employer’s contract with the appellee-insurer. Thus, the appellee-employer has not met the requirement that the restrictive covenant must be related to a contract for employment.

However, an employer may validly insert a non-competition clause into a pre-existing employment contract if the amendment meets the following standard. Where a restrictive covenant is executed after the commencement of employment, it will not be enforced unless the employee restricting himself from competing with the employer received a corresponding benefit for the change in status. Maintenance Specialities Inc. v. Gottus, 455 Pa. 327, 314 A.2d 279 (1974); Wainright’s Travel Service v. Schmolk, 347 Pa.Super. 199, 500 A.2d 476 (1985).

When the appellee-employer inserted the non-competition clause into the agreement with the appellee-insurer, the appellee-employer’s actions presented a change in employment contracts of the appellants hired before the pension trust agreement with the appellee-insurer went into effect. However, the record does not reflect that the appelleeemployer granted its employees any additional consideration in exchange for the imposition of the non-competition clause. Thus, we find that the appellee-employer did not meet the requirements to amend a pre-existing employment contract to include a non-competition clause. See Mainte nance Specialities v. Gottus, supra; Wainright’s Travel Service v. Schmolk, supra.

Next, we will examine the final requirement for the enforcement of a restrictive covenant which holds that a covenant not to compete must be reasonably limited in both time and territory. Piercing Pagoda Inc. v. Hoffner, supra. In order to determine whether the appellee-employer has met this requirement, it must be determined whether the non-competition covenant imposes restrictions broader than necessary to protect the employer. Sidco Paper Co. v. Aaron, 465 Pa. 586, 594-95, 351 A.2d 250, 254 (1976); Quaker City Eng. Rebuilders v. Toscano, 369 Pa.Super. 573, 579, 535 A.2d 1083, 1089 (1987). We are mindful that our Supreme Court has held that a non-competition agreement which bound an employee not to compete with the employer in a general business without limitation as to time or area, was void on its face as being an unreasonable restraint of trade and therefore was unenforceable either in whole or part. Reading Aviation Service v. Bertolet, 454 Pa. 488, 311 A.2d 628 (1973).

The instant non-competition clause did not include any time or geographical restrictions, nor did it provide any kind of restrictions on the kinds of employment its former employees would seek; rather, it was a blanket prohibition against any former employee from working in any capacity for any company deemed by the appellee-employer to be a competitor. The record does not reflect that the appelleeemployer had any compelling reason for imposing such a stringent non-competition requirement upon the appellants other than the retention of its employees. The appelleeemployer has not alleged that any of the appellants possessed trade secrets or confidential customer information which could be used by their competitors to the appelleeemployer’s detriment. See Morgan Home Equipment Corp. v. Martucci, 390 Pa. 618, 136 A.2d 838 (1957) (a non-competition covenant will be upheld for a reasonable amount of time if the former employee is the possessor of trade secrets); see also Bell Fuel Corp. v. Cattolico, 375 Pa.Super. 238, 544 A.2d 450 (1988) (A covenant in an employment contract which prohibited a former employee from soliciting former customers in perpetuity may be modified to be a reasonable time period when the former employer only sought its enforcement for a two year period).

However, the facts in the instant case do not indicate that a modification of the non-competition clause is feasible. The appellee-employer has not sought to use the non-competition clause as a means of preventing the appellants, as the possessors of trade secrets or confidential customer information, from working for a competitor for a reasonable amount of time. Rather, they have sought to use the clause to effectuate a pension forfeiture.

It is well settled that forfeitures are not favored in the law and are to be strictly construed, In re Estate of Fisher, 442 Pa. 421, 276 A.2d 516 (1971); In re Zanfino’s Estate, 375 Pa. 501, 100 A.2d 60 (1953), especially in cases involving employee pensions. See Forrish v. Kennedy, 377 Pa. 370, 105 A.2d 67 (1954); Siegel v. First Pennsylvania Banking and Trust Co., 201 F.Supp. 664 (1961). Employment contracts containing provisions for retirement pay are to be construed liberally to effectuate the declared intention of the parties to pay additional compensation for services rendered in the past. Kline v. Morrison, supra.

Although, in Garner v. Girard Trust Bank, 442 Pa. 166, 275 A.2d 359 (1971), our Supreme Court upheld a non-competition clause which allowed for a pension forfeiture, the facts in that case are clearly distinguishable from the instant case. In Garner, the non-competition clause was limited to a two year time period, while instantly the clause contained no such limitation and basically prohibited the appellants from pursuing employment in their chosen field of occupation forever.

Therefore, we find that the instant non-competition clause which prohibited the appellants from pursuing their drafting careers with anyone other than the appellee-employer is analogous to the non-competition clause which our Supreme Court held invalid in Reading Aviation Service v. Bertolet, supra, which prohibited a former employee from pursuing his chosen occupation in the general field of aviation permanently. In both eases, the employers placed undue hardship on the employees without making any showing that the restrictions were necessary for the employers’ protection. Thus, we find that the instant non-competition clause has failed to meet the requirement that it must be reasonable as to time and territory. See Henschke v. Moore, 257 Pa. 196, 101 A. 308 (1917); Keeler v. Taylor, 53 Pa. 467, 91 Am.Dec. 221 (1866).

Moreover, we find that the appellee-employer’s own actions over a period of years such as: the failure to bid on new work, the elimination of pay raises, the cessation of its traditional policy of paying annual bonuses to the employees, pay cuts, and employee lay offs, were entirely inconsistent with its stated purpose for imposing the non-competition pension forfeiture clause as a means of retaining its skilled employees. As the appellee-employer’s actions indicated to the appellants that their former employer was in the process of withdrawing from competition and their prospects of long-term employment with the company were very bleak, they quite naturally sought and obtained other employment.

Accordingly, the invalid non-competition clause had already outlived its usefulness to the appellee-employer at the time the appellants left its service; thus, it was unreasonable and unduly harsh for the appellee-employer to insist upon its strict enforcement as a means of divesting the appellants from their pensions and retaining the proceeds. See Sidco Paper Co. v. Aaron, supra; Girard Investment Co. v. Bello, 456 Pa. 220, 318 A.2d 718 (1974); Bettinger v. Carl Berke Associates, Inc., 455 Pa. 100, 314 A.2d 296 (1974); Quaker City Eng. Rebuilders v. Toscano, supra, (Restrictive employments covenants are valid only if they are reasonably necessary for the protection of the employer.) See also Forrish v. Kennedy, supra; Levitt v. Billy Penn Corp., supra, (The courts can compel the trustees of a pension plan to exercise their discretion within the bounds of reasonable judgment). Therefore, as the instant non-competition clause has failed to meet all of the criteria set forth by our Courts for its enforcement and the actions of the appellee-employer were completely contradictory to its stated purpose for imposing the non-competition clause in the first place, we find the clause to be void on its face and therefore, not subject to enforcement.

Due to our finding that the instant non-competition clause is void and unenforceable, we need not address the merits of the second issue raised by the appellants. However, our disposition of the first issue requires us to determine whether all of the appellants have met the other valid eligibility requirements established by the appellee-employer in order to ascertain their entitlement to the payout of pension benefits.

The appellees have specifically contended that two of the appellants, Edward Kriscunas and Albert Mack, do not meet the other eligibility criteria established by the appellee-employer for participation in the pension plan. The appellees argue that appellant Kriscunas did not meet the age requirements for vesting in the pension plan and appellant Mack did not have the required length of service under the IPG to become an inactive vested participant.

Section I of the IPG provides that a person can acquire a vested inactive status upon termination if he qualifies under Section XII. To become a participant under Section XII, the employee must have, under IPG Section III, completed four years and six months of credited service and have reached the age of thirty-five years. (The GDAP age requirement was thirty-four years and six months). Although appellant Kriscunas had ten years and nine months of credited service at the time of his termination, he had only attained the age of thirty-one years and seven months at the time of his termination; thus, he failed to reach the requisite age for vesting for either active or inactive purposes, and the appellee-employer properly denied him pension benefits.

Appellant Mack, however, appears to qualify as an inactive vested participant. Mack began his employment with the appellee-employer on August 15, 1956 and left its service for the first time on December 1, 1960. Mack was later reemployed by the appellee-employer on August 16, 1965 and credited with four years and three months of prior service. When Mack left the service of the appellee-employer for the second time on February 15, 1973, he had acquired seven years and six months of unbroken service and four years and three months prior service. The appellees argue that Mack was required to have five years of uninterrupted service under the IPG agreement in order to be a vested participant. However, under the GDAP agreement, an employee became an active participant after the completion of four years and six months and had attained the age of thirty-four years and six months. Mack, who was born on June 2, 1926, had fulfilled both the length of service and age requirements before the IPG agreement took effect on November 15,1970. Thus, Mack had already vested in the pension plan under the GDAP agreement and is entitled to receive pension benefits. Accordingly, we find that all of the appellants except Kriscunas are qualified as inactive participants in the pension trust and are entitled to receive either a pension annuity or a lump sum payment from the pension trust.

For the reasons stated above, we reverse the judgment entered in the trial court as to all of the appellants except Kriscunas and remand this case to the trial court for a determination of the amount of pension benefits due to each of the appellants. As to appellant Kriscunas, the judgment is affirmed.

Jurisdiction relinquished.

TAMILIA, J., files a concurring and dissenting opinion.

TAMILIA, Judge,

concurring and dissenting:

This is an appeal from the judgment entered after the trial court, sitting without a jury, entered an Order in favor of defendants/appellees, finding appellants had forfeited their pensions by taking employment with competing companies. Appellants, former employees of Auburn and Associates, Inc. (Auburn), now argue they are entitled to pension benefits under agreements entered with their prior employer. While I agree with the final result reached by the majority, I respectfully dissent to the holding that the forfeiture clause in this case violates public policy. My analysis, instead, focuses on the inequitable nature and harshness of the forfeiture provision when applied to the facts in this case. Those facts have been accurately summarized by the majority and will not be repeated.

As stated in the majority Opinion, appellants propose two issues for our review: (1) whether the non-competition clause in the IPG, which results in the forfeiture of vested pension benefits, violates the public policy of this Commonwealth and is therefore unenforceable; and (2) assuming arguendo the noncompete forfeiture clause is valid, whether the employment of appellants by existing companies which employ draftsmen and design engineers results in conduct which is inimical to the economic interests of their former employers. While the majority need not address the second issue having found the non-competition clause in this case to be void and unenforceable, I disagree with that holding and accordingly proceed to address both issues.

I believe the holdings of Rochester Corp. v. W.L. Rochester, Jr., 450 F.2d 118 (4th Cir.1971) and Garner v. Girard Trust Bank, 442 Pa. 166, 275 A.2d 359 (1971), which appellants attempt to distinguish from the present case, and upon which the trial court relied to support its decision, do support the validity and enforceability of the non-competition clause in the pension plan. I would hold that such provisions in a pension plan, which have been eliminated since 1976 pursuant to Federal Legislation, are not per se invalid. See ERISA, 29 U.S.C.A. § 1144. I believe, however, they cannot be interpreted in a vacuum. To do so is fundamentally unjust and creates a windfall and unjust enrichment either for the corporate directors, trustees, shareholders or remnants of employees who managed to survive a slow and persistent decline in the business, if not an actual withdrawal from competition.

A forfeiture clause retains vitality as a restriction against competition only so long as the firm remains in competition, the niceties of the distinction made in earlier cases between restraint on future competition contained in employment contracts, as opposed to restraint against joining a competitor if pension rights are to be preserved, notwithstanding. See Rochester Corp. and Garner, supra. In either instance, a restriction is for the purpose of retaining trained and skilled persons in order to remain competitive and to deny such skilled persons to a competitor or to prevent employees from becoming competitors to the ultimate harm of the parent company. Since most pension plans require financial and other input from the employer and probably continued viability of the company to maintain their integrity, even if the employee becomes vested, his termination to work for a competitor could conceivably work against the best interest of the pension plan. All of this presupposes the initial company to be a going concern and the employees to be provided the employment opportunities and compensation for which they bargained at the time they entered into the pension plan.

All of the cases relied upon by the majority deal with limitations on direct competition with the employer in terms of time, geographic distance or in the retaining and solicitation of customers of the original employer. Those cases have been construed to limit the influence such a clause can bring to bear upon the employee's future livelihood and, as such, are rather strictly construed. The clause at issue here might be broadly construed as a restriction on competition, but it does not effect the ability of the employee to seek and obtain immediate employment in the area in direct competition with the former employer. The restriction, rather, is to prevent such an employee from receiving benefits paid entirely by the first employer, conditioned on continued employment or, at the least, not engaging in employment which would compete with the employer. What has changed is the public and governmental perspective of such benefits as being vested, deferred compensation as opposed to an employer’s gratuitous but conditional benefit. As such, the majority’s discussion and reliance on cases and law relating to restrictive covenants on competition is totally misplaced and irrelevant to the issue here. In addition, I am aware of no Supreme Court case that has ruled such a clause to be violative of public policy and we, as an intermediate appellate court, may not make such a finding in the face of the continuing presence of Garner, supra.

Here, the facts make out a strong case of a corporation in gradual decline, and in later years moving toward self-extinction. The firm reduced employee numbers from 650 to 50 over ten or fifteen years, and froze and reduced wages thereby placing its employees in a position requiring them to seek employment elsewhere while it was available or facing likely termination of employment and restricted job opportunities. The employees were trapped in a total restructuring of the industrial and economic base of society, which was totally unanticipated by management or labor. Such were not the conditions upon which a forfeiture was intended to apply to employees who terminate to join businesses which are actively in competition with the parent firm. Pensions have been held to be deferred compensation and to vest after a reasonable time. Lowe v. Jones, 414 Pa. 466, 200 A.2d 880 (1964); Newport Twp. v. Margalis, 110 Pa.Commw, 611, 532 A.2d 1263 (1987). The employee parties to this action have from 10 to 19 years service and most terminated their employment within a year or two prior to the company’s dissolution. None entered into direct competition with their employer, although all joined competing firms. Most were low level employees whose role in the competing companies had no significant effect on the increase in competition from the other firm or decline in competition by the parent firm. Their employment with the competing firm was irrelevant to the appellee’s decline or the competitive edge maintained by the new employer. The result applied in this case is harsh and inequitable and is precisely that to which the law refers in asserting forfeitures are not favored. In re Estate of Fisher, 442 Pa. 421, 276 A.2d 516 (1971). The trial judge, while abiding by the case law, recognized the harshness of the provision as applied to this case and a need for appellate courts to reconsider the holdings of earlier cases, particularly in light of recent cases restricting the scope and severity of employment contract provisions against competition. Blackwood, Inc. v. Caputo, 290 Pa.Super. 140, 434 A.2d 169 (1981).

For these reasons, while I agree with the majority’s decision to reverse the judgment entered in the trial court as to all appellants except Kriseunas and direct that the pension rights of these 19 appellants be enforced against the pension plan, and as to appellant Kriseunas, to affirm the judgment, I disagree with the determination that the forfeiture clause in this case violates public policy of Pennsylvania.

      . On August 15, 1974, the non-competition clause was removed by an amendment to the IPG agreement in view of the statutory prohibitions against pension forfeitures enacted by the United States Congress in the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1002 et seq.; however, as the removal of the non-competition pension forfeiture clause occurred after the appellants had already left the appellee-employer’s service, the clause's removal has no bearing on the instant litgation.
      Moreover, while ERISA, which became effective on January 1, 1976, preempts alL state law and prohibits pension forfeiture for post-employment competitive activity, it has no retroactive application and thus is not pertinent to the case at bar.

      . When a trial court elects to hear untimely exceptions or post-trial motions and addresses the alleged error on the merits, we are bound to review the merits. Kurtas v. Kurtas, 521 Pa. 105, 555 A.2d 804 (1989); Donegal Mutual Insurance Co. v. State Farm, 377 Pa.Super. 171, 546 A.2d 1212 (1988).

      . The federal legislation, however, recognizes a change in the manner in which government and society perceive pension programs and provides protection for the worker from withdrawal of vested pension rights. Very recently, in PBGC v. LTV Corp., 496 U.S. -, 110 S.Ct. 2668, 110 L.Ed.2d 579 (1990), the United States Supreme Court determined that in filing for bankruptcy, corporations may not arbitrarily terminate pension programs thereby divesting employees of their interest in pension funds requiring that Pension Benefit Guaranty Corporation assume responsibility for their payment. Pursuant to ERISA, such plans in the private sector are protected to permit retirees and terminated employees to obtain the benefits for which they bargained.


author: HOFFMAN, Judge:

text:
    588 A.2d 546
    Faith HORNE, Appellant, v. SENTRY INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Dec. 11, 1990.
    Filed March 25, 1991.
    Barry M. Rothman, Philadelphia, for appellant.
    James B. Corrigan, Philadelphia, for appellee.

      Before MONTEMURO, TAMILIA and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from an order below granting appellee Sentry Insurance Company’s petition to compel a medical examination. Appellant, Faith Horne, contends that the trial court erred in granting appellee’s motion to compel a medical examination of her because appellee failed to show good cause as required by § 1796 of the Motor Vehicle Financial Responsibility Law. See 75 Pa.C.S.A. § 1796. For the following reasons, we agree and, accordingly, we vacate the trial court’s order.

The facts underlying this appeal are as follows. On May 24, 1989, Ms. Horne was involved in an automobile accident in which she allegedly was injured. At that time, she was insured by appellee. In January, 1990, Ms. Horne instituted an action against her insurance company for payment of her medical bills, interest, and attorneys’ fees under the Pennsylvania Motor Vehicle Financial Responsibility Law. See 75 Pa.C.S.A. § 1701, et seq. Appellee filed a motion to compel appellant to submit to medical and dental examinations by appellee’s doctors. On April 20, 1990, the court granted appellee’s motion in part and ordered appellant to submit to a medical examination within thirty days. This timely appeal followed.

Appellant contends that the trial court abused its discretion in granting appellee’s motion to compel her to submit to a medical examination because appellee failed to show sufficiently “good cause” for such a medical examination under § 1796 of the Pennsylvania Motor Vehicle Financial Responsibility Law. We agree.

Section 1796 authorizes the court to order a claimant to submit to a mental or physical examination by a physician under the following circumstances:

(a) General rule. — Whenever the mental or physical condition of a person is material to any claim for medical, income loss or catastrophic loss benefits, a court of competent jurisdiction or the administrator of the Catastrophic Loss Trust Fund ... may order the person to submit to a mental or physical examination by a physician. The order may only be made upon motion for good cause shown.

75 Pa.C.S.A. § 1796(a) (emphasis added). Because the trial court has discretion to determine whether good^ cause has been shown, we will not reverse that determination absent a palpable abuse of discretion. See State Farm Ins. Cos. v. Hunt, 390 Pa.Super. 620, 623, 569 A.2d 365, 366 (1990).

We have set forth the standard for determining “good cause” as follows:

[t]o establish ‘good cause shown’, an insurer’s petition, at the minimum, must contain facts showing that the proofs supplied in support of the claim are inadequate, that the proposed physical examination will substantially assist the insurer in evaluating the claim and that the amount of the claim justifies a court order compelling the claimant to submit to a physical examination.

State Farm Mut. Auto. Ins. Co. v. Zachary, 370 Pa.Super. 386, 390, 536 A.2d 800, 801 (1987), alloc. denied, 520 Pa. 607, 553 A.2d 969 (1988). See also State Farm Mut. Auto. Ins. Co. v. Allen, 375 Pa.Super. 319, 323, 544 A.2d 491, 492-93 (1988) (citation omitted). Thus, the existence of good cause must be determined on a case by case basis depending on the nature of the alleged injury and the type of examination(s) requested. See State Farm Ins. Cos. v. Hunt, supra. Furthermore, a good cause showing under § 1796(a) requires a certain “level of specificity so as [to] ensure that a claimant will not be forced to submit to unnecessary examinations sought in bad faith.” State Farm Mut. Auto. Ins. Co. v. Zachary, supra. See also State Farm Ins. Cos. v. Hunt, supra.

Here, the allegations in appellee’s petition regarding appellant’s claims and medical treatment were so vague as to verge on boilerplate. For example, appellee stated that appellant’s “[m]edical bills and related items may or may not be accumulating at a rapid rate.” See R.R. at 31a. The doctor’s letter attached to the petition was similarly vague. The letter merely stated in a conclusory fashion that a medical examination would be “necessary” to substantiate appellant’s claims and to justify continuing treatment. See id. at 33a. The letter provided no factual basis to raise any questions concerning the adequacy of appellant’s present treatment, or the adequacy of her proof of her injuries. Indeed a close review of the record shows that appellee never cited to specific facts to demonstrate in what respect appellant’s proof of her claims was inadequate, nor indicated which medical treatment it had reason to question. See id. at 31a. Thus, in summary, appellee has not shown that specific disputed facts exist between the parties that make a medical examination necessary. See State Farm Mut. Auto. Ins. Co. v. Zachary, supra. We have no doubt that the insurer here, as in any case, would prefer an independent medical examination in order to evaluate the claim. The statute, however, does not allow for such examinations on demand. Accordingly, we hold that appellee’s mere allegations in its petition, unsupported by a developed record, were insufficient to order a medical examination pursuant to § 1796. See id.; Keystone Ins. Co. v. Caputo, 365 Pa.Super. 431, 436, 529 A.2d 1134, 1136 (1987). Because appellee produced no evidence to call into question the legitimacy of appellant’s claims, the court’s order compelling an independent medical examination was an abuse of discretion. Thus, we must vacate the trial court’s order.

Order vacated. Jurisdiction relinquished.

      . Appellant also claims that (1) the trial court lacked jurisdiction to compel her to submit to a medical examination; and (2) the court acted prematurely in ordering the examination. Appellant’s "jurisdictional” argument is based on the fact that her insurance policy calls for arbitration of an uninsured motorist claim. However, the record reveals that appellant has not yet filed an uninsured motorist claim against her insurance company. Furthermore, the record does not contain a copy of appellant’s coverage policy for our review. Thus, there is no record basis to review appellant’s “jurisdictional” argument. In addition, appellant’s argument regarding the court’s premature action in ordering a medical examination is meritless in light of our disposition of appellant’s primary claim.

      . We note that an order granting or denying a petition to compel a medical examination under 75 Pa.C.S.A. § 1796 is a final appealable order. State Farm Mut. Auto. Ins. Co. v. Zachary, 370 Pa.Super. 386, 389, 536 A.2d 800, 801 (1987), alloc. denied, 520 Pa. 607, 553 A.2d 969 (1988); State Farm Ins. Cos. v. Hunt, 390 Pa.Super. 620, 622 n. 1, 569 A.2d 365, 366 n. 1 (1990). Therefore, this appeal is properly before us.

      . The court denied appellee’s motion to compel appellant to submit to a dental examination. The propriety of this decision is not before us.

      . We note that the record contains no copy of the parties’ insurance policy. Thus, we do not address the possibility of appellee’s entitlement, under the policy, to conduct an independent medical examination of its insured.

      . We note that appellee moved to compel a medical examination pursuant to Pennsylvania Rule of Civil Procedure 4010 which provides for a compelled physical or mental examination under certain circumstances for discovery purposes. See P.R.Civ.P. 4010(a). The trial court relied on Pa.R.Civ.P. 4010(a) in reaching its decision. See Trial Court Opinion at 2. Appellant, however, initially brought her claim under the Pennsylvania Motor Vehicle Financial Responsibility Law. We cannot allow appellee to circumvent the requirements of that legislation by characterizing its motion for a court order for a medical examination as discovery. Therefore, we must address appellant’s claims according to the Pennsylvania Motor Vehicle Financial Responsibility Law.

      . There was also a dentist’s letter attached to appellee’s petition. The weakness of appellee’s proof regarding the medical examination is further demonstrated by a comparison to the detail contained in the dentist’s letter. Appellee’s dentist cited reasons why appellee needed to conduct a dental examination of appellant and the particular dental diagnosis it questioned. See R.R. at 34a-35a. As we have already noted, the question of the propriety of the court’s refusal to order the dental examination is not before us.


author: TAMILIA, Judge:

text:
    588 A.2d 549
    CHAMBERSBURG TRUST COMPANY v. Paul H. EICHELBERGER, d/b/a Eichelberger Transportation Specialists and Kenneth E. Stake, d/b/a Ken Stake Auto Sales. Appeal of Kenneth E. STAKE, d/b/a Ken Stake Auto Sales.
    Superior Court of Pennsylvania.
    Argued Jan. 22, 1991.
    Filed March 28, 1991.

      James J. Kutz, Harrisburg, for appellant.
    J. Bruce Walter, Harrisburg, for appellee.
    Before OLSZEWSKI, BECK and TAMILIA, JJ,
   TAMILIA, Judge:

This is an appeal from the August 28, 1990 judgment entered in favor of Chambersburg Trust Company (hereinafter CTC). By Order dated May 8, 1990, the court found, inte, alia, CTC held a perfected security interest in the property which is the subject of this appeal and granted CTC leave to proceed with its levy on same. Appellant’s motion for post-trial relief was denied June 7, 1990.

The procedural and factual history of this case is complex, but detailing it is necessary to an understanding of our resolution of the matter before us. The parties agreed to the facts in this case by stipulation dated January 4, 1990 and a summary of the pertinent stipulated facts follows.

Paul H. Eichelberger, doing business as Eichelberger Transportation Specialists, was party to a verbal arrangement with appellant, d/b/a Ken Stake Auto Sales, wherein appellant would tender a check to Eichelberger to purchase a specific motor vehicle and appellant would hold the title to the vehicle until such time it was sold. At that point, Eichelberger would reimburse appellant for the vehicle’s original purchase price plus an agreed upon fee.

After purchasing, in a like manner, the eight motor vehicles which are the subject of this case, and without appellant’s knowledge, Eichelberger entered into a number of Trust Receipt Security agreements with appellee, wherein he used the eight vehicles as partial collateral for notes totalling in excess of $177,000. At this point in time, appellee did not file the security agreements or otherwise attempt to perfect its security interests.

Thereafter Eichelberger defaulted on the notes held by CTC, and, because his outstanding obligations to CTC exceeded the payments received by CTC from collateral sources such as certificates of deposits and checking account funds, CTC confessed judgment on the aforementioned security agreements on September 8, 1988. As a result, on September 9, 1988, the sheriff levied on the vehicles which, at this point, were in the appellant’s possession due to Eichelberger’s failure to comply with the terms of their verbal agreement. On March 22, 1989, CTC filed another writ of execution directing the sheriff to levy upon the subject vehicles in appellant’s possession. That action was stayed pending the outcome of the September 8, 1988 writ. We note for the record there are no liens on the vehicles’ titles.

On or about January 10, 1990, the parties agreed to submit this matter by way of stipulated facts and supporting briefs. By Order dated May 8, 1990, the court found appellee held perfected security interests in the vehicles while appellant had no security interest and had failed to establish either a resulting trust or consignment agreement.

On appeal, Stake argues the court erred by failing to find a resulting trust existed between he and Eichelberger. He also contends CTC’s security agreements with Eichelberger failed to attach, pursuant to 13 Pa.C.S, § 9203(a)(3), and are, therefore, unenforceable against the vehicles. Appellant argues there was sufficient evidence of record from which the court could conclude a resulting trust arose in his favor. This Court’s sole duty is to decide whether there was sufficient evidence to sustain the trial court’s finding. Fannin v. Cratty, 331 Pa.Super. 326, 480 A.2d 1056 (1984).

A resulting trust arises where a person makes or causes to be made a disposition of property under circumstances which raise an inference that he does not intend the person taking or holding the property should have the beneficial interest therein, unless the inference is rebutted or the beneficial interest is otherwise effectively disposed of.

Mooney v. Greater New Castle Development Corp., 510 Pa. 516, 520-21, 510 A.2d 344, 346 (1986), cert. denied 479 U.S. 915, 107 S.Ct. 317, 93 L.Ed.2d 290 (1986), citing Policarpo v. Policarpo, 410 Pa. 543, 189 A.2d 171 (1963). The party seeking to establish the existence of a resulting trust bears a heavy burden of proof; the evidence must be clear, direct, precise and convincing. Masgai v. Masgai, 460 Pa. 453, 333 A.2d 861 (1975). Appellant has failed to meet this burden. We agree with the trial court that the specifics of this case are indicative of a loan agreement as opposed to a resulting trust.

A resulting trust exists when one individual (allegedly Eichelberger) holds property in trust for another individual (appellant), without holding a beneficial interest therein, and with the intent to, at some point in time, return the property to him who initially disposed of the property. Eichelberger did not possess the eight vehicles with the intent to someday return them to appellant. Appellant did not want the vehicles. Rather, as reflected in the stipulations and the trial court Opinion, appellant wanted to recoup his monetary investment plus an additional return to compensate him for Eichelberger’s use of his money. The fact appellant had possession of the vehicles at the time the sheriff levied was a result of his attempt to salvage a modicum of the money loaned to Eichelberger after Eichelberger violated their verbal agreement. The financial arrangement between Eichelberger and appellant can be properly characterized as nothing other than a business loan.

Appellant argues that because he provided Eichelberger with the money to purchase the vehicles, a prima facie resulting trust was created in his favor which could be rebutted only by evidence demonstrating appellant intended to create a beneficial interest in Eichelberger. Appellant relies on Lewis v. Spitler, 266 Pa.Super. 201, 403 A.2d 994 (1979), in support of this averment and contends the record is devoid of any such rebuttal evidence. The facts in Lewis can be distinguished from those in this case. A resulting trust was found in Lewis because the payor intended to obtain a portion of the tract of land which was purchased with the payor’s money. Appellant did not lend money to Eichelberger in order to obtain a beneficial interest in the automobiles. Unlike the situation in Lewis, no resulting trust was created. Even if a prima facie resulting trust was created, we find there is sufficient rebuttal evidence of record to establish appellant never contemplated receiving a beneficial interest in the vehicles, but intended only to receive a financial return on his investment. We agree with the trial court there was insufficient evidence of record to support the existence of a resulting trust.

Next, appellant argues CTC’s security interest in the vehicles never attached and was, therefore, unenforceable against the vehicles. Specifically, appellant avers Eichelberger had no rights in the collateral when the security agreements were entered into by him and CTC, thereby preventing attachment. We disagree. An enforceable security interest is created and attaches when the collateral is in possession of the secured creditor or the debtor signs a security agreement which contains a description of the collateral, value has been given and the debtor has rights in the collateral. Kendrick v. Headwaters Production Credit Association, 362 Pa.Super. 1, 523 A.2d 395 (1987), alloc. denied, 515 Pa. 614, 530 A.2d 867 (1987). See 13 Pa.C.S. § 9203(a)(1), (2), (3).

“Rights in the collateral” is not a precise phrase. Little if any Pennsylvania case law exists which would give this Court assistance in formulating an unambiguous, precise definition. Our review of related case law, Article Nine of the Uniform Commercial Code (UCC), Title 13 of Purdon’s Consolidated Statutes and the foremost authority on commercial law, White and Summers, “Uniform Commercial Code,” 3rd Ed. Hornbook Series, Practitioner’s Ed., Vol. 2, § 24-6, pp. 319-327 (1988), leads us to conclude we must not mechanically espouse and perfunctorily apply the phrase “rights in the collateral” without addressing the particular facts of the case. “ ‘[R]ights in the collateral’ language merely states a truism, namely, that the debtor normally can only convey something once he has something, and that something may be less than the full bundle of rights that one may hold in such property.” Id. at 323. Simply put, a debtor may encumber the collateral to the degree he has rights in the collateral. In ascertaining the scope of a debtor’s rights in collateral, a court must look to factors such as the debtor’s control of the property and the extent to which the risks of ownership have been shifted to the debtor.

In the present case, neither appellant nor Eichelberger had title or absolute control of the vehicles. Although it is stipulated appellant had possession of the certificates of title until such time as the vehicles were sold, the certificates of title, as is the norm in similar commercial transactions, reflected only the most recent consumer owner. That is, although a dealership may own a used car which is for sale on its used car lot, the dealer’s name is not reflected on the title. See Transfer to or from manufacturer or dealer, 75 Pa.C.S. § 1113. Title means absolute control and here no one had record title. Therefore, this Court must look further to ascertain Eichelberger’s rights in the collateral.

Eichelberger assumed the risks of ownership with regard to the vehicles. He had physical possession of the cars and had absolute power to sell the vehicles or, for that matter, destroy them. Had the vehicles been stolen, the loss would have been borne by Eichelberger. Eichelberger’s sole obligation to appellant was to repay purchase money owed plus an agreed upon fee for Eichelberger’s use of appellant’s money. Had Eichelberger chosen to sell the vehicles at one-half what he paid for them, his monetary obligation to appellant would have remained the same. Control of the subject vehicles clearly rested with Eichelberger.

We find that although Eichelberger had less than record or full ownership of the vehicles, he had sufficient control of or “rights in the collateral” for attachment to occur and thereby create enforceable security interests on appellee’s behalf. Perfection of the security interests occurred at the time of levy.

For most types of property, filing the agreement and taking possession are alternative methods of perfection of a security interest. Admittedly, CTC did not file the security agreements relating to the vehicles. Although a levy in and of itself is not an alternative means of perfecting a security interest, in this case, the sheriff’s levy accomplished that end. A security interest in goods may be perfected by the secured party’s taking possession of the collateral. See, Kendrick, supra. Appellee’s levy on the vehicles gave him constructive possession of the vehicles, automatically perfecting his security interest.

The fact the appellant had physical possession of the vehicles at the time of levy is of no consequence. No security agreement, written or oral, giving him a legal right to the vehicles existed. For the sake of argument, even categorizing appellant as a bailee of the vehicles does not alter that finding. Even if the collateral is held by a bailee, the secured party is deemed to have possession from the time bailee is notified of the secured party’s interest. A sheriff’s levy is adequate notice of a secured party’s interest. Appellee’s perfected security interests prevail over any interest appellant may have had in the vehicles.

Based on the foregoing discussion, we affirm the trial court’s findings there was insufficient evidence to establish a resulting trust between Eichelberger and appellant and Eichelberger had sufficient rights in the collateral to which CTC’s security interest could attach.

Judgment affirmed.

BECK, J., concurs in the result.

      . Eichelberger, who pled guilty to theft by failure to make required disposition of funds received, 18 Pa.C.S. § 3927, plays no role in this appeal.

      . The notes contained confession of judgment and warrant of attorney provisions which empowered any Pennsylvania attorney to confess judgment in amount of the principal sum, plus any interest, costs and/or collection fees.

      . § 9203. Attachment and enforceability of security interest; proceeds, formal requisites
      (a) Enforceability. — Subject to the provisions of section 4208 on the security interest of collecting bank and section 9113 on a security interest arising under the division on sales, a security interest is not enforceable agaipst the debtor or third parties with respect to the collateral and does not attach unless:
      (3) the debtor has rights in the collateral.

        Id., § 9203(a)(3).

      . As found by the trial court, there was no consignment agreement between the parties as the vehicles were not purchased by appellant and consigned to Eichelberger for resale. Appellant merely supplied or loaned the purchase price to Eichelberger who, in turn, bought the vehicles at auction or elsewhere.

      . As stated supra, the parties stipulated appellee’s security interests in the eight vehicles were not perfected at the time the security agreements were entered.


text:
    588 A.2d 553
    William E. BLAKE, Appellant, v. Robert J. GARVIN.
    Superior Court of Pennsylvania.
    Submitted Jan. 22, 1991.
    Filed April 3, 1991.
    Reargument Denied May 8, 1991.

      William E. Blake, pro se.
    Samuel P. Kamin, Pittsburgh, for appellee.
    Before ROWLEY, President Judge, and DEL SOLE and HOFFMAN, JJ.
   HOFFMAN, Judge:

This pro se appeal is from a July 30, 1990 order granting appellee’s preliminary objections and dismissing appellant’s complaint. Appellant challenges the propriety of the trial court’s grant of the preliminary objections. We affirm.

Appellant and his former spouse, Martha M. Blake, were divorced on July 13, 1989. During the pendency of the divorce litigation, Mrs. Blake filed a Petition for Counsel Fees. On February 14,1990, a hearing was held concerning Mrs. Blake’s entitlement to counsel fees. On February 15, 1990, the trial court granted Mrs. Blake’s petition in part and ordered appellant to pay counsel fees and costs in the amount of $1,082.00. No appeal was taken from this order.

Subsequently, on March 16, 1990, appellant filed a pro se Trespass and Assumpsit Complaint against appellee Robert J. Garvin, Esquire, counsel for Mrs. Blake in the divorce proceeding, alleging that Mr. Garvin had lied in court about his fees. See Trespass and Assumpsit Complaint, March 16, 1990. The suit was an apparent attempt to collaterally attack the February 15 order directing him to pay counsel fees. In the complaint, appellant sought the sum of $3,995.00 from Mr. Garvin. Id. On April 10, 1990, a hearing was held before a District Justice which resulted in a judgment entered for Mr. Garvin. See Notice of Entry of Judgment, April 10, 1990.

On May 9, 1990, appellant instituted the present action in the Allegheny County Court of Common Pleas by filing a Praecipe for Writ of Summons in Civil Action. On May 14, appellee requested that appellant file a complaint. Thereafter, appellant filed a “Petition for Counsel Fees for Untrue Statements.” In response to this petition, appellee filed preliminary objections alleging that appellant had failed to state a cause of action and that the trial court was without jurisdiction to hear this case. Appellant then filed an amended complaint alleging that appellee had presented false invoices in connection with legal fees that arose during appellee’s representation of Mrs. Blake in the divorce proceeding. He further alleged that this fraud was perpetrated “in collusion” with the trial judge in the divorce case. On July 16,1990, in response to appellant’s amended complaint, appellee refiled his original preliminary objections. On July 30, 1990, the trial court, finding that appellant’s suit was “a collateral attack on the Family Division Order,” entered an order granting appellee’s preliminary objections and dismissing appellant’s complaint. This timely appeal followed.

Appellant contends that the trial court erred in granting appellee’s preliminary objections and dismissing his complaint. This contention can be summarily dismissed.

It is well-settled that the doctrine of collateral estoppel prevents a question of law or an issue of fact that has been litigated and adjudicated finally in a court of competent jurisdiction from being relitigated in a subsequent suit. See, e.g., Mellon Bank v. Rafsky, 369 Pa.Super. 585, 592, 535 A.2d 1090, 1093 (1987).

Here, the record reveals that appellant was ordered to pay $1,082.00 in counsel fees and costs following a February 14, 1990 hearing concerning, inter alia, Mrs. Blake’s entitlement to counsel fees and the amount thereof. See Order, February 15, 1990; Appellee’s Supp. R.R. at 10-72. Appellant, the person against whom the doctrine is asserted, had a full and fair opportunity in the prior action to raise the identical question being raised in this appeal— 1. e., whether counsel’s estimate of his fees were based on fraudulent billing practices. See Appellee’s Supp. R.R. at 10-72. Furthermore, because appellant did not appeal the February 15th order, that order is conclusive for purposes of collateral estoppel. See, e.g., DeWald v. Pauline, 312 Pa.Super. 391, 458 A.2d 1016 (1983) (“final order” is one which effectively ends litigation or disposes of entire case); see also generally Restatement (Second) of Judgments § 13 comment g (decision is final for purpose of issue preclusion where, inter alia, parties were fully heard, court supported its decision with reasoned opinion, and decision was subject to appeal or was reviewed on appeal). Finally, the trial court’s determination that Mrs. Blake was entitled to $1,082.00 in counsel fees was essential to its order requiring appellant to pay that amount. Thus, we agree with the trial court’s conclusion that appellant’s action is an improper collateral attack on the final order of the Family Division. See Mellon Bank v. Rafsky, supra; Trial Court Opinion, September 19, 1990, at 2.

Accordingly, the trial court did not err in dismissing appellant’s complaint.

Order affirmed.

      . Appellant’s complaint alleged in pertinent part: ******
      3. On or about November 20, 1989, [appellant] was ordered by the Court to pay counsel fees to [appellee], who represented [appellant’s] former wife in connection with a divorce.
      4. [Appellee] submitted a fraudulent bill for services, i.e. the invoice was for twice the hourly rate charged by [appellee] and charged [appellant] for services [appellee] never performed.
      5. The fraudulent invoice submitted by [appellee] was part of a continuing fraud upon [appellant] committed by [appellee] in collusion with the Honorable Lawrence Kaplan.
      6. Fraudulent invoicing is part of a continuing unlawful and unethical practice, among divorce attorneys in Allegheny County, of submitting phony invoices in order to unlawfully take funds from divorce litigants, while acting in collusion with certain judges.
      7. [Appellant] seeks to recover those funds, in the amount of $1,082.00, which were wrongfully appropriated by [appellee].
      8. [Appellant] also seeks to recover compensatory and punitive damages from [appellee] for [appellee’s] outrageous conduct.

        See Amended Complaint-Civil Action, June 29, 1990.

      . It is unclear from the trial court's opinion whether it granted appellee’s preliminary objections based on the doctrine of collateral estoppel. However, even if the trial court’s disposition of appellant’s complaint did not rest squarely on collateral estoppel grounds, we could affirm on that basis, as it is settled that an appellate court may affirm a lower court decision if the result is correct on any ground. See Penn Piping v. Ins. Co. of N. Am., 382 Pa.Super. 19, 22-23, 554 A.2d 925, 927 (1989) (citation omitted).