author: HESTER, Judge:

text:
    616 A.2d 1040
    Kandi FORNWALT v. Harry R. FOLLMER, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 17, 1992.
    Filed Nov. 24, 1992.

      Norman M. Lubin, Williamsport, for appellant.
    Dudley N. Anderson, Williamsport, for appellee.
    Before TAMILIA, JOHNSON and HESTER, JJ.
   HESTER, Judge:

Harry R. Follmer, Jr. appeals from the January 29, 1992 support order entered by the Court of Common Pleas of Lycoming County. This order affirmed the master’s calculation of the amount of support that appellant owes for his son, Brock Hayden Hoover, for the years 1989 to the present. Appellee, Kandi Fornwalt, filed the present support action in 1989, alleging that appellant was Brock’s father. Appellant argues that the trial court erred by failing to apply the doctrine of res judicata, which he contends was applicable since appellee instituted a prior support action that was dismissed based upon the statute of limitations in effect at that time. The res judicata defense was rejected based upon a new statute, 23 Pa.C.S. § 4343(b)(2). This statute retroactively extended the limitation period for paternity claims to eighteen years, even when a claim previously had been dismissed due to the prior, shorter limitation period. In this appeal, appellant contends that this statute is unconstitutional ex post facto legislation which denied him the benefit of his prior judgment by removing the bar of the prior statute of limitations. We affirm.

The procedural history of this case is as follows. Appellee first filed a paternity action against appellant on behalf of her son, Brock, born in 1977, on May 16, 1986. Appellant filed an answer and new matter asserting that the claim was barred by the six year statute of limitations for such claims in effect at the time that Brock was born. See 42 Pa.C.S. § 6704(e) (repealed October 30,1985, effective in ninety days). The trial court dismissed appellee’s claim by an order dated February 18, 1987. No appeal of record was filed.

On April 6, 1989, appellee filed the present paternity claim and contended that it was timely since it was instituted within a new period of limitation of eighteen years from birth of the child as set forth in 23 Pa.C.S. § 4343(b)(1). That section provides: “An action or proceeding to establish the paternity of a child born out of wedlock must be commenced within eighteen years of the date of birth of such child.” On January 12, 1990, the trial court granted appellant summary judgment on the basis of res judicata. Appellee filed an appeal. In Fornwalt v. Follmer, 409 Pa.Super. 660, 589 A.2d 1180 (1991), we reversed and remanded for the trial court to consider the application of res judicata in light of new legislation, 23 Pa.C.S. § 4343(b)(2) (enacted December 20, 1990), which provides:

As of August 16, 1984, the requirement of paragraph (b)(1) shall also apply to any child for whom paternity has not yet been established and any child for whom a paternity action was brought but dismissed because of a prior statute of limitations of less that 18 years.

(Emphasis added). On remand, the trial court determined that res judicata did not apply since the claim was filed within the period during which the legislature expressed its clear intent retrospectively to extend the eighteen-year limitation period for paternity claims, even those claims previously dismissed based upon the prior limitations period. On July 2, 1991, a jury determined that appellant was the father of Brock. This appeal followed the entry of the previously described support order.

Appellant first maintains that res judicata applies and bars appellee’s claim. We have held:

For the doctrine of res judicata to prevail there must be a concurrence of four conditions: (1) identity of issues, (2) identity of causes of action, (3) identity of persons and parties to the action, and (4) identity of the quality or capacity of the parties suing or sued.... A final judgment upon the merits by a court of competent jurisdiction bars any future suit between the same parties or their privies on the same cause of action.

Day v. Volkswagenwerk Aktiengesellshaft, 318 Pa.Super 225, 232, 464 A.2d 1313, 1316-17 (1983) (citations and emphasis omitted); see also Gardner v. Gardner, 371 Pa.Super. 256, 538 A.2d 4 (1988). Instantly, appellant observes that the prior action clearly involved the same issues, an identical cause of action, the same persons, and parties in the same quality or capacity. Appellant continues by noting that we have held that legislation which retrospectively denies a person the benefit of res judicata after the entry of a judgment unconstitutionally removes a bar or revives an action ex post facto in violation of Article I, Section 17 of the Pennsylvania Constitution. In support of this assertion, he relies upon Maycock v. Gravely, 352 Pa.Super. 421, 508 A.2d 330 (1986) (after action has become barred by an existing statute of limitations, no subsequent legislation may remove the bar or revive the action) and Overmiller v. D.E. Horn Co., 191 Pa.Super 562, 159 A.2d 245 (1960) (legislature may not revive claims which already had been barred). He further contends that this represents not merely a procedural matter but a situation in which the prior limitations statute already has been invoked to bar appellee’s claim. Consequently, appellant claims that he has a vested right to rely on the prior judgment.

We initially note that we upheld the validity of the six-year statute of limitations in Clark v. Jeter, 358 Pa.Super. 550, 518 A.2d 276 (1986), wherein we determined that 42 Pa.C.S. § 6704(e) furthered the state’s interest in protecting against stale claims brought on unreliable evidence. However, the United States Supreme Court reversed in Clark v. Jeter, 486 U.S. 456, 463-464, 108 S.Ct. 1910, 1915-1916, 100 L.Ed.2d 465, 473-474 (1988), holding:

Pennsylvania’s 6-year statute of limitations violates the Equal Protection Clause. Even six years does not necessarily provide a reasonable opportunity to assert a claim on behalf of an illegitimate child....
... [T]he 6-year statute of limitations is not substantially related to Pennsylvania’s interest in avoiding the litigation of stale or fraudulent claims. In a number of circumstances, Pennsylvania permits the issue of paternity to be litigated more than six years after the birth of an illegitimate child. The statute itself permits a suit to be brought more than six years after the child’s birth if it is brought within two years of a support payment made by the father. And in other types of suits, Pennsylvania places no limits on when the issue of paternity may be litigated. For example, the intestacy statute, 20 Pa.Cons.Stat. § 2107(3) (1982), permits a child born out of wedlock to establish paternity as long as “there is clear and convincing evidence that the man was the father of the child.” Likewise, no statute of limitations applies to a father’s action to establish paternity.

The Supreme Court clearly held 42 Pa.C.S. § 6704(e) unconstitutional. In response to this decision, our legislature enacted 23 Pa.C.S. § 4343(b)(2). The issue before us, then, is whether this new statute, by retroactively depriving appellant of the benefit of the prior judgment to bar appellee’s present claim through res judicata, unconstitutionally ex post fado deprives him of his right to rely on the prior judgment.

We conclude that it does not. It is clear to us that the effect of the Supreme Court’s decision is to render the prior statute of limitations for paternity actions wholly void, so that in reality it amounted to a nullity. See Chicago, I & L. Rail Co., v. Hackett, 228 U.S. 559, 33 S.Ct. 581, 57 L.Ed. 966 (1913); Norton v. Shelby County, 118 U.S. 425, 6 S.Ct. 1121, 30 L.Ed. 178 (1886) (statute declared unconstitutional is void and of no effect). Consequently, the former statute of limitations is ineffective for any purpose since its unconstitutionality dates from the time of its enactment and not merely from the date of the decision holding it so. It is as if it were never enacted. Chicago, I & L. Rail Co., supra; G.H. McShane Co., Inc. v. Travelers Indemnity Co., 262 Pa.Super. 80, 396 A.2d 654 (1978). As a result, the statute confers no rights and justifies no actions performed under it with limited exceptions. See Box Office Pictures, Inc. v. Board of Finance & Revenue, 402 Pa. 511, 166 A.2d 656 (1961) (statute is void ab initio and only remains an operative fact to be given effect where equities cannot be ignored).

Instantly, we do not find that the equities require us to give effect to appellant’s prior judgment obtained pursuant to the unconstitutional statute. He is Brock’s father, and support by both parents is in accord with our public policy to promote the best interests of the child. See 23 Pa.C.S. § 5301. Accordingly, we conclude that the prior statute of limitations is void ab initio, the judgment rendered pursuant to the statute has no effect, and the cases upon which appellant relies are readily distinguishable.

Order affirmed.

      . We note that appellant gave notice of his constitutional challenge to the statute to the Attorney General in accordance with Pa.RX.P. 235. The Attorney General elected not to respond.


source: Caselaw Access Project

author: ROWLEY, President Judge:

license: Public Domain

text:
    616 A.2d 1043
    In re ESTATE OF Anna Dolores BARTOLOVICH a/k/a Anna D. Bartolovich a/k/a Anna Bartolovich, Deceased. Appeal of James A. SOLAK.
    Superior Court of Pennsylvania.
    Argued Sept. 30, 1992.
    Filed Nov. 20, 1992.

      Frank A. Wolfe, Ford City, for appellant.
    William T. Woncheck, Jr., Natrona Heights, for appellee.
    Before ROWLEY, President Judge, and POPOVICH and CERCONE, JJ.
   ROWLEY, President Judge:

James A. Solak, executor of the estate of Thomas J. Bartolovich, appeals from the order of the trial court granting summary judgment to Mildred Margaret Baron, administratrix of the estate of Anna Dolores Bartolovich. The trial court determined that the Slayer’s Act, 20 Pa.C.S. § 8801 et seq., bars Mr. Bartolovich’s estate from acquiring any rights in property held by Mr. and Mrs. Bartolovich as tenants by the entireties. After considering the arguments appellant raises in this appeal, we affirm the order granting summary judgment.

On May 1, 1986, an altercation between Mr. and Mrs. Bartolovich resulted in the death of Mrs. Bartolovich. After a jury trial, Mr. Bartolovich was found guilty of voluntary manslaughter. The judgment of sentence was affirmed by this Court. While serving his sentence, Mr. Bartolovich died. The Register of Wills of Allegheny County granted letters testamentary to appellant James A. Solak. Subsequently, Mildred Margaret Baron, as administratrix of Mrs. Bartolovich’s estate, filed a petition seeking a determination that Mr. Bartolovich is barred from asserting any rights in property held by him and his wife as tenants by the entireties. Ms. Baron then filed a motion for summary judgment. The trial court granted Ms. Baron’s motion, and appellant filed this timely appeal.

Appellant first argues that an evidentiary hearing was required to determine whether Mr. Bartolovich is a slayer within the meaning of the Slayer’s Act. Specifically, appellant contends that the record of Mr. Bartolovich’s conviction is not conclusive evidence that he is a slayer, but is only admissible in evidence at a hearing, see 20 Pa.C.S. § 8814, and that a hearing is necessary so that appellant can present evidence that Mr. Bartolovich could not present at the criminal trial because it would have been inconsistent with his defense strategy. Appellant’s position has already been rejected by the Supreme Court in In re Estate of Kravitz, 418 Pa. 319, 211 A.2d 443 (1965). In Kravitz, the Court held that the record of a criminal conviction conclusively bars the slayer’s right to share in the decedent’s estate. See also In re Estate of Klein, 474 Pa. 416, 421 n. 13, 378 A.2d 1182, 1184 n. 13 (1977) (dicta).

Appellant next argues that a conviction of voluntary manslaughter does not necessarily satisfy the “wilful” component of the definition of a slayer. In a related argument, he also contends that a hearing should be held to determine Mr. Bartolovich’s state of mind at the time of the killing. In support of these arguments, appellant contends that the conviction of voluntary manslaughter does not necessarily prove that Mr. Bartolovich acted wilfully because the provocation sufficient to reduce murder to voluntary manslaughter must be such as to place the defendant beyond the control of reason. Commonwealth v. Robinson, 452 Pa. 316, 305 A.2d 354 (1973). Appellant apparently seeks to equate a killing which occurred while the defendant was “beyond the control of reason” with an involuntary killing. This argument is merit-less. It is well-settled that voluntary manslaughter is an intentional killing. Commonwealth v. Pitts, 486 Pa. 212, 404 A.2d 1305 (1979); Commonwealth v. Whitfield, 475 Pa. 297, 380 A.2d 362 (1977); Commonwealth v. Fisher, 342 Pa.Super. 533, 493 A.2d 719 (1985). Wilfullness within the meaning of the Slayer’s Act is equivalent to the intent element of voluntary manslaughter. A defendant’s act of voluntary manslaughter is not rendered involuntary merely because he was responding to serious provocation.

Appellant also contends that both Mr. Bartolovich’s state of mind and the degree of culpability of his deceased wife must be considered before it can be determined that Mr. Bartolovich acted wilfully. He asserts that “[a] trial for voluntary manslaughter makes no effort to allocate the degree of blame to the individual killed but merely looks to the consequences of the actions done by both parties to the event.” Appellant’s Brief at 7-8. Although the jury may not have allocated blame to Mr. Bartolovich’s deceased wife, it is clear that they considered her actions by their decision to render a guilty verdict on the charge of voluntary manslaughter, rather than first-degree murder. In addition, “[t]he principal focus of the [Slayer’s] Act is not ... one of balancing the slayer’s interests against the interests of his victim’s estate nor does the act reflect a legislative intent to profit the decedent’s estate by diminishing any property right held by the slayer----” Drumheller v. Marcello, 516 Pa. 428, 433, 532 A.2d 807, 809 (1987) (quoting In re Estate of Larendon, 439 Pa. 535, 539, 266 A.2d 763, 765-66 (1970)). Similarly, the Slayer’s Act does not require a balancing of the respective degrees of blame to be placed upon Mr. Bartolovich and his wife with regard to her death beyond the extent to which the wife’s conduct was relevant in the criminal trial.

For the above reasons, we conclude that voluntary manslaughter is a wilful killing under the Slayer’s Act. Furthermore, Mr. Bartolovich’s conviction of voluntary manslaughter conclusively bars his right to share in the decedent’s estate. Therefore, a hearing to determine his mental state is unwarranted.

Order affirmed.

      . Appellant asserts that “there was potential evidence available concerning prior incidents of attack upon the alleged Slayer by the decedent. The criminal defense counsel decided not to introduce those incidents of prior attack believing that this might lead the jury to conclude that the alleged Slayer acted with malice.” Appellant’s Brief at 11.

      . The Slayer’s Act defines “slayer” as “any person who participates, either as a principal or as an accessory before the fact, in the wilful and unlawful killing of any other person.” 20 Pa.C.S. § 8801.


author:
POPOVICH, Judge:
      MONTEMURO, Judge,

text:
    616 A.2d 1045
    Walter LEE and Jennie Lee v. PITTSBURGH CORNING CORPORATION, Fibreboard Corporation, Johns-Manville Corp., Eagle-Picher, Keene Corp., Celotex, J.P. Stevens, Owens-Illinois Glass, GAF, PACOR, UNARCO, Raybestos-Manhattan, Southern Textile and Garlock. Appeal of FIBREBOARD CORPORATION.
    Superior Court of Pennsylvania.
    Argued April 22, 1992.
    Filed Nov. 19, 1992.

      Richard T. Wentley, Pittsburgh, for appellant.
    Faithe Moore, Philadelphia, for Walter & Jennie Lee, appellees.
    Before ROWLEY, President Judge, and MONTEMURO and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment entered in favor of appellees following the denial of appellant’s request for post-trial relief and granting of appellees’ request for delay damages. The issues raised on appeal are: (1) Whether the trial court erred in failing to apportion the damages to reflect the jury’s finding that cigarette smoking was a substantial cause of the appellee’s injuries; (2) Whether the trial court erred in denying appellant’s request for a new trial; (3) Whether the trial court erred in refusing to grant remittitur of the jury’s verdict; and (4) Whether the trial court erred in granting delay damages. Having determined that the trial court erred when it denied appellant’s request for a new trial, we reverse and remand for a new trial.

This dispute arises from the following facts: Appellee, Walter Lee, a former worker at the Philadelphia Naval Shipyard brought an action against appellant and other asbestos manufacturers for damages arising from his exposure to asbestos. Appellee, Jennie Lee, also brought an action for loss of consortium. Specifically, appellees asserted that Mr. Lee developed lung cancer from his occupational asbestos exposure. In support of this proposition, appellees presented the testimony of Dr. James Guidice who testified that Mr. Lee’s occupational asbestos exposure was the sole cause of Mr. Lee’s lung cancer. Appellant countered that Mr. Lee’s cancer was caused from his long history of cigarette smoking. Mr. Lee did in fact smoke cigarettes at a rate of a pack and one-half per day for thirty years but has not smoked a cigarette for over 18 years. Appellant supported its conclusion with the expert testimony of Dr. Theodore Rodman, who opined that Mr. Lee’s cigarette smoking was the sole cause of the lung cancer. Dr. Rodman testified that without evidence of asbestosis, asbestos exposure was not a cause of Mr. Lee’s lung cancer. Appellant also offered the expert testimony of Dr. William Weiss who testified that even after a person quits smoking, there still remains a risk of cancer. Dr. Weiss also testified as to the correlation between the location of the cancer in the lung and its cause. Dr. Weiss did not offer any opinions specifically as to the cause or causes of Mr. Lee’s condition.

In essence, the controversy boiled down to whether it was appellee’s exposure to asbestos or his cigarette smoking that caused his lung cancer. At trial, appellant contended that the jury should be instructed on the law of apportionment, and that any award should be reduced to exclude the damage caused by cigarette smoking. In response to appellant’s request the trial court submitted to the jury the following verdict slip:

1. Do you find that asbestos was a substantial factor in causing Walter Lee’s harm?
YES_
NO_
If your answer to question # 1 is “no”, return to the courtroom as the Plaintiffs cannot recover.
If your answer to question # 1 is “yes,” proceed to question #2.
2. Do you find that cigarette smoking was a substantial factor in causing Walter Lee’s harm?
YES_
NO _
If your answer to question # 2 is “no,” proceed to question #4.
If you have answered questions # 1 and # 2 “yes,” proceed to question # 3.
3. Taking the two above substantial factors of Walter Lee’s harm as a hundred percent, what percentage do you attribute to smoking and what percentage to asbestos?
percentage attributable to smoking %
percentage attributable to asbestos %
Total 100 %
4. Disregarding any of the above percentages, in what amount, if any, do you award damages to plaintiff Walter Lee? ... to Jennie Lee?

and gave this charge:

“If you have answered questions 1 and 2 yes, and have found both asbestos and cigarette smoking were substantial factors in causing the plaintiffs harm, you must then answer question No. 3, and that asks you to — taking the two above substantial factors of Walter Lee’s harm as 100 percent, what percentage do you attribute to smoking and what percentage to asbestos. And you assign percentage based on the evidence that you have heard. These two percentages, obviously, have to total 100 percent. You cannot put down five percent here and five percent there and have them total up to 10 percent. They must total 100 percent. Now, the reason for that is that if you find there is a percentage of harm where cigarettes were a substantial factor, the verdict on damages will be reduced by me by that percentage. Not you, but me. And, therefore, when you get to question No. 4, you are to ignore the percentages that you have found in the answer, if you find any in the answer to question No. 3, and you are not to reduce the verdict, but I will. Don’t you do it, because then it would be reduced twice because we wouldn’t know you reduced the verdict by that amount.”

(T.C.O. at 3-4).

The jury returned a verdict determining that both asbestos and cigarette smoking were substantial factors in causing Mr. Lee’s cancer. The jury apportioned 60% of the cause to smoking and 40% of the cause to asbestos exposure. They awarded Mr. Lee $1,000,000.00 in damages, and Mrs. Lee $500,000.00 for loss of consortium. After the jury returned its verdict, the trial court determined that it would be improper for it to mold the verdict to reflect the jury’s apportionment of causation. The trial court reasoned that since all of the experts testified that either cigarette smoking or asbestos exposure was the sole cause of the injury, the jury was not given a sufficient basis upon which to determine the relative contributions of asbestos and cigarette smoking to the cause of Mr. Lee’s cancer. Appellant asserts on appeal that the trial court’s refusal to apportion was in error and that it is entitled to a molded verdict to reflect the jury’s findings or, in the alternative, a new trial.

The first issue raised on appeal is whether the trial court erred in failing to mold the verdict in accordance with the jury’s findings.

The rules in this Commonwealth governing apportionment of damages are consistent with those expressed in Restatement (Second) of Torts:

§ 433 A. Apportionment of Harm to Causes

(1) Damages for harm are to be apportioned among two or more causes where

(a) there are distinct harms, or
(b) there is a reasonable basis for determining the contribution of each cause to a single harm.
(2) Damages for any other harm cannot be apportioned among two or more causes.

Martin v. Owens-Corning Fiberglass, 515 Pa. 377, 528 A.2d 947, 949 (1987) (plurality opinion). “The rules stated apply also where one of the causes in question is the conduct of the plaintiff herself, whether it be negligent or innocent.” Martin, 382, 528 A.2d at 949. The determination of whether a harm is capable of apportionment is a question of law, and the burden of proving apportionment rests on the party seeking it. Id.

The trial court found our Supreme Court’s plurality decision in Martin v. Owens-Corning Fiberglass, supra determinative on this issue. In Martin, the Court was faced with the issue of whether sufficient evidence was presented to the jury to permit apportionment. The Martin Court reviewed the extensive expert testimony and determined that none of the experts separated the causes of the injury. Indeed two of the experts indicated that such a separation was impossible. Based on this evidence, the Court held that facts did not lend themselves to apportionment.

Thus, common sense and common experience possessed by a jury do not serve as substitutes for expert guidance, and it follows that any apportionment by the jury in this case was a result of speculation and conjecture and hence, improper. Rough approximation is no substitute for justice.

Id. at 384, 528 A.2d at 950. Since the jury was improperly instructed to apportion the damage award, and the award was obviously apportioned, the Court held that the award must be vacated and the case remanded for a trial limited to damages. See also Taylor v. Celotex, 393 Pa.Super. 566, 574 A.2d 1084 (1990).

Presently, we agree with the lower court’s decision that there was insufficient evidence upon which the jury could apportion damages between cigarette smoking and asbestos exposure. The expert testimony was diametrically opposed as to the cause of appellee’s injury. One of appellant’s experts testified that cigarette smoking was the sole cause of the lung cancer. Contrarily, appellees’ expert testified that asbestos exposure was the sole cause of the cancer. Neither party provided direct evidence that would attempt to apportion the harm caused by each. Without such testimony, the jury was left guessing at an appropriate apportionment. As such, the trial court acted properly in refusing to mold the verdict in accordance with the jury’s decision. Cf. Taylor, supra (court properly refused to instruct jury on apportionment when experts did not attempt to apportion the cause of plaintiffs illness among cigarette smoking, asbestos exposure and heart disease); Borman v. Raymark Industries, Inc., 960 F.2d 327 (3rd Cir.1992).

In the alternative, appellant contends that because the jury was instructed on apportionment and the court then refused to mold the verdict, it is entitled to a new trial. This argument has merit. When assessing a trial court’s denial of a motion for a new trial, we ask whether the trial court clearly and palpably abused its discretion or committed an error of law which controlled the outcome of the case. Sweitzer v. Dempster Systems, 372 Pa.Super. 449, 539 A.2d 880, 881 (1988); Stevenson v. General Motors Corp., 513 Pa. 411, 521 A.2d 413 (1987). Previously, we have stated:

Where the motion for a new trial is based upon the sufficiency of the jury charge, we must examine the charge in its entirety against the background of the evidence to determine whether error was committed. If an appellate court concludes that the charge was erroneous, a new trial will be granted only if the jury charge might have prejudiced the appellant. A new trial will be granted even though the extent to which the appellant has been prejudiced is unascertainable. Gallo v. Yamaha Motor Corporation USA, 363 Pa.Super. 308, 526 A.2d 359, 366 (1987).

Sweitzer, 539 A.2d at 882; Wood v. Smith, 343 Pa.Super. 547, 495 A.2d 601, 603 (1985), appeal dismissed 512 Pa. 641, 518 A.2d 266 (1986).

We must remember that it is the primary duty of the trial judge to clarify the issues so that the jury may comprehend the questions it must decide. Wood, 343 Pa.Super. at 550, 495 A.2d at 603. The jury in this case was instructed to apportion the harm caused by cigarette smoking and asbestos exposure, and it was told that the judge would then mold the verdict to reflect its apportionment decision. After deciding that both smoking and asbestos were substantial factors in causing Mr. Lee’s cancer, the jury apportioned 60% of the cause to smoking and 40% to asbestos exposure. The court however refused to mold the verdict, in accordance with its instruction to the jury, on the grounds that all the experts testified that either cigarette smoking or asbestos exposure was the sole cause of the cancer.

As we previously stated, we agree with the lower court’s determination that the evidence was insufficient for the jury to apportion the harm without engaging in pure speculation. Had the lower court made this determination before instructing the jury to apportion the harm between cigarette smoking and asbestos exposure, we would not be faced with the present problem. Nevertheless, the jury was instructed that possibly both cigarettes and asbestos caused Mr. Lee’s cancer. By refusing to grant appellant’s request for a new trial, the lower court awarded damages grounded upon liability determined pursuant to an erroneous jury instruction.

We are convinced such error requires a new trial. Assuming the jury had not been instructed to apportion the causes of harm, it is certainly possible that appellant might have been absolved of liability, given the jury’s determination that cigarettes were 60% responsible for Mr. Lee’s cancer. Also, appellant’s experts testified that there was no evidence of asbestosis and the location of the cancer was consistent with cigarette smoking. Such facts could have prompted the jury to find that cigarette smoking was the lone cause of Mr. Lee’s illness if they had not been instructed to apportion damages. Accordingly, we reverse and remand for a new trial. Judgment vacated. Case remanded for a new trial.

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

MONTEMURO, Judge,

concurring and dissenting:

I join both the result and rationale reached by the majority with respect to the first issue presented, and I agree that the jury was incapable of apportioning the harm without speculation. I disagree, however that a new trial is necessary.

The majority states that the “jury in this case was instructed to apportion the harm caused by cigarette smoking and asbestos exposure.” Majority op. at 430. While admittedly the verdict slip presented to the jury contained extraneous information as to the court’s role in this process, the court did not instruct the jury that it had to apportion the harm. If the jury determined that cigarette smoking was the sole factor, or that asbestos was not a substantial factor, they were certainly free to absolve the asbestos manufacturers of liability. Instead the jury found that asbestos exposure was a substantial factor. I believe that the majority, by granting a new trial, is improperly assuming that the jury was incapable of following the clear instruction of the trial court.

Further, granting a new trial is inconsistent with the result reached in Martin v. Owens-Corning Fiberglass, 515 Pa. 377, 528 A.2d 947 (1987) (plurality opinion). In Martin, after determining that the jury was improperly instructed on apportionment, the Court stated, “since the jury obviously apportioned to arrive at the verdict, ... and the only trial error involves the issue of damages, the appropriate remedy is a new trial limited to the issue of damages.” Id. at 385, 528 A.2d at 951. Thus, Martin stands for the proposition that when an improper apportionment charge is given, and the jury has already molded the verdict, a new trial limited to damages is needed. The majority distinguished Martin by stating:

presently, the expert testimony indicated that the sole cause of the injury was either cigarette smoking or asbestos exposure. Therefore, the jury’s determination (after being instructed to apportion the harm) that both were substantial causes of Mr. Lee’s cancer is not supported by the evidence. Accordingly, we find that the apportionment instruction misled the jury into believing that both cigarette smoking and asbestos could be substantial causes of appellee’s illness, and we must remand the case for a new trial on the issues of liability and damages.

Majority op. at 431-432, n. 3. (emphasis added).

I disagree with the majority’s statement that there was insufficient evidence to find that both asbestos exposure and cigarette smoking were substantial causes of Mr. Lee’s cancer. As the majority recognizes:

the jury was presented with general information concerning the nexus between cigarette smoking, asbestos exposure and the occurrence of lung cancer, including statistical data on the incidence and relative risks of lung cancer for both smoking and non-smoking asbestos workers as compared to the general population.

Majority op. at 429, n. 2. Further, Dr. Rodman’s testimony that cigarette smoking was the sole cause of appellee’s injury, and Dr. Guidice’s contradictory opinion that asbestos exposure was the sole cause of the harm do not necessarily preclude a jury from finding that both were substantial factors, since, the jury was free to believe all, none, or part of these experts’ testimony. See Martin supra 515 Pa. at 391, 528 A.2d at 954 (Hutchinson, J., dissenting) citing Weidemoyer v. Swartz, 407 Pa. 282, 180 A.2d 19 (1962). Since there was a sufficient basis for finding that both asbestos exposure and cigarette smoking were substantial causes of Mr. Lee’s cancer, I find the majority’s distinguishing of Martin unpersuasive.

The proper interpretation of Martin supports affirming rather than reversing the trial court. In Martin, the full extent of the damages were unknown because the jury had already molded the verdict. Thus, a new trial limited to damages was necessary. In the present case, the total amount of damages were known as the trial court expressly instructed the jury not to mold the verdict. The trial court was therefore able to correct its error in permitting the jury to apportion, by simply refusing to mold the verdict. As such, unlike Martin, a remand for a new trial is unnecessary. Accordingly, I dissent.

      . Having determined that this case must be remanded for a new trial, we need not address appellant’s third and fourth issues.

      . We note that the jury was presented with general information concerning the nexus between cigarette smoking, asbestos exposure and the occurrence of lung cancer, including statistical data on the incidence and relative risks of lung cancer for both smoking and nonsmoking asbestos workers as compared to the general population.

      . The present action is factually distinguishable from Martin, supra. Therein, the case was remanded for a new trial limited to the issues of damages, after it was determined that the evidence was insufficient to support the jury’s verdict which apportioned the harm between cigarette smoking and asbestos exposure. In Martin, supra, the experts did not separate the causes of the injury, and in fact, two of the experts testified it was impossible to determine the relative culpability of cigarettes and asbestos. However, presently, the expert testimony indicated that the sole cause of the injury was either cigarette smoking or asbestos exposure. Therefore, the jury’s determination (after being instructed to apportion the harm) that both were substantial causes of Mr. Lee’s cancer is not supported by the evidence. Accordingly, we find that the apportionment instruction misled the jury into believing that both cigarette smoking and asbestos could be substantial causes of appellee’s illness, and we must remand the case for a new trial on the issues of liability and damages.

      . This is not to say that appellant presented sufficient evidence for the jury to apportion without speculation. I am in full agreement with the majority that an apportionment instruction should not have been presented to the jury.


author: OLSZEWSKI, Judge:

text:
    616 A.2d 1376
    COMMONWEALTH of Pennsylvania, Appellant v. Thomasina JOHNSONNA.
    Superior Court of Pennsylvania.
    Submitted Jan. 15, 1992.
    Filed June 2, 1992.
    Reargument Denied July 23, 1992.

      Catherine Marshall, Asst. Dist. Atty., Philadelphia, for Comm., appellant.
    Daniel A. Rendine, Philadelphia, for appellee.
    Before ROWLEY, President Judge, and OLSZEWSKI and MONTEMURO, JJ.
   OLSZEWSKI, Judge:

The Commonwealth appeals from the March 13, 1991, order of the Court of Common Pleas of Philadelphia County granting appellee’s pre-trial motion to suppress 580 vials of crack cocaine. On April 4, 1991, the trial court denied appellant’s petition for reconsideration of the motion to suppress, and this appeal followed. For our review, the Commonwealth asks us to consider whether a police officer is legally entitled to pursue a fugitive into a residence where the officer has personal knowledge that a warrant has been issued for the fugitive’s arrest, and the fugitive immediately flees upon seeing the officer. We reverse the lower court’s order and remand for further proceedings.

We will begin with a description of the relevant facts of this case. Appellee’s arrest on the charges of possession with intent to deliver a controlled substance, and knowing and intentional possession of a controlled substance, developed from a series of events which took place around 9:35 p.m. on January 17, 1989. Philadelphia Police Officer Steven Brown was on routine plain clothes patrol duty when he observed a female, Darlene Olverson, leaving a rowhouse at 4239 North Hicks Street. Officer Brown recognized Olverson as a defendant who had failed to appear in court three weeks earlier. At that time, Officer Brown had been present in court to testify against Olverson and had witnessed the judge enter a bench warrant for her arrest. Officer Brown did not know, however, whether the bench warrant remained outstanding.

Officer Brown left his vehicle and called to Olverson who glanced at the officer, immediately ran back to the 4239 Hicks Street location, and slammed the door behind her. Continuing his pursuit, Officer Brown broke the door open by hitting it with his shoulder. Upon entering the residence, Olverson was directly in front of Officer Brown and exited through the back door. As Officer Brown continued after Olverson he observed appellee, Thomasina Johnsonna, in the kitchen/dining room area. A large clear plastic bag filled with vials was thrown behind the refrigerator. There was conflicting testimony as to who threw the bag of illegal drugs. Officer Brown then pursued Olverson, who ultimately escaped, into the adjoining alley.

Police officers attempted to move the refrigerator to retrieve the clear plastic bag, whereupon items fell from the top of the refrigerator. As a result, the officers stopped moving the refrigerator and cleared its top before proceeding. One item which the officers removed from the refrigerator was an uncovered pot which contained two clear plastic bags of two hundred vials of cocaine each. The clear bag which was retrieved from behind the refrigerator contained 180 vials of crack cocaine. Officers Kerwin and Baird recovered a total of 580 vials of crack cocaine. Appellee, Thomasina Johnsonna, was placed under arrest.

On appeal, the Commonwealth contends that the trial court erred in granting appellee’s motion to suppress since the officers lawfully pursued Olverson into 4239 North Hicks Street. Specifically, the Commonwealth argues that the officers were entitled to legally enter the 4239 North Hicks Street residence because there was an outstanding bench warrant for Olverson’s arrest, there was reason to believe that the location was Olverson’s residence, and that Olverson was currently inside. As a preliminary matter, we note that our scope of review from suppression orders is to determine whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are in error. Commonwealth v. Chambers, 528 Pa. 403, 405, 598 A.2d 539, 540 (1991). In addition, the Commonwealth bears the burden of establishing by a preponderance of the evidence that a search and seizure is valid under the Fourth Amendment, and that the evidence is therefore admissible. Commonwealth v. Lewis, 394 Pa.Super. 403, 405, 576 A.2d 63, 65 (1990).

In the case at bar, the Commonwealth presented no evidence that the alleged bench warrant was in effect at the time of the incident and arrest. Consequently, we will analyze this situation from the standpoint of a warrantless arrest. Our first order of business is to determine whether Officer Brown had probable cause to arrest Olverson. To be proper, a warrantless arrest must be supported by probable cause. Commonwealth v. Merriwether, 382 Pa.Super. 411, 418, 555 A.2d 906, 910 (1989). Probable cause to arrest an individual depends on whether, at the moment of arrest, the facts and circumstances would warrant a reasonable person in believing that the person arrested had or was committing an offense. Id. The uncontradicted evidence of appellant firmly demonstrates that Officer Brown was clearly aware of Olverson’s identity since he was the arresting officer on a previous charge (less than three weeks prior) and was present at the time a bench warrant was issued for her failure to appear. Furthermore, Olverson fled when Officer Brown called out to her. Flight in itself is not adequate to form the basis for probable cause to arrest, but it may be sufficient when joined with other factors which support probable cause. Common wealth v. Woodson, 342 Pa.Super. 392, 395, 493 A.2d 78, 80 (1985). Admittedly, as the trial court points out, Olverson may have voluntarily turned herself in within the the previous three-week period. Officer Brown’s knowledge, however, combined with Olverson’s flight, were sufficient to establish probable cause.

We must now address the question of whether these occurrences amount to exigent circumstances justifying the officer’s subsequent entry into 4239 North Hicks Street. An arrest warrant is required to validly arrest an individual in his home unless exigent circumstances exist to justify the warrantless intrusion. Commonwealth v. Williams, 483 Pa. 293, 297, 396 A.2d 1177, 1179 (1978), cert. denied, 446 U.S. 912, 100 S.Ct. 1843, 64 L.Ed.2d 266 (1980). When evaluating an issue of exigent circumstances, there are several factors which should be considered such as the gravity of the offense, a reasonable belief that the suspect is armed, a clear showing of probable cause, a reasonable belief that the suspect is within the premises sought to be entered, the likelihood that the suspect will escape, time of entry, and whether the entry was peaceful. Id., Commonwealth v. Lopez, 525 Pa. 185, 189, 579 A.2d 854, 856 (1990). With regard to the first and second factors of this analysis, a review of the record indicates that no evidence was presented establishing the gravity of the offense for which Olverson was wanted, nor the basis for a reasonable belief that Olverson was armed. The third and fourth factors have been satisfied since we have made a finding of probable cause as discussed above, and the record indicates Olverson was present on the premises. Next, we must determine if it was likely that Olverson would escape. Given Olverson’s immediate flight and Officer Brown’s consequent hot pursuit, we find that the circumstances presented a strong likelihood that Olverson would escape. Finally, although the time was reasonable, the entry was not peaceable since Officer Brown did not announce his entry and automatically broke the front door using his left shoulder. (N.T., 1/18/91 at 10-11.) Based on an evaluation of each of these relevant considerations, we find that the facts and legal conclusions of the trial court do not support its finding of an absence of exigent circumstances. Thus, we find that the trial court improperly suppressed the illegal drugs at issue.

Order reversed and remanded for further proceedings. Jurisdiction relinquished.

      . The Commonwealth has certified that the lower court order, granting defendant's motion to suppress physical evidence, effectively terminates the prosecution of this case. Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985) (absolute right of the Commonwealth to appeal from a grant of suppression motion which terminates or substantially handicaps its case).

      . Since we find that the entry into appellant’s residence was justified based on the presence of exigent circumstances, we conclude that the officers’ subsequent plain view seizure of the illegal drugs was also proper. See Commonwealth v. Daniels, 406 Pa.Super. 112, 115, 593 A.2d 895, 897 (1991).


author: DEL SOLE, Judge:

text:
    616 A.2d 1379
    COMMONWEALTH of Pennsylvania v. Alex J. VERGOTZ, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued June 16, 1992.
    Filed Sept. 28, 1992.
    Reargument Denied Dec. 4, 1992.

      Gene P. Placidi, Erie, for appellant.
    Anthony R. Himes, Asst. Dist. Atty., Erie, for Com., appellee.
    Before WIEAND, DEL SOLE and HESTER, JJ.
   DEL SOLE, Judge:

This is a direct appeal from the order of the Court of Common Pleas of Erie County which sentenced Alex J. Vergotz, Jr., Appellant, to a $5,000.00 fine and one to two years imprisonment for his conviction of Deceptive Business Practices, and imposed a fine of $100.00 for each of the thirty-three counts of Violations of Use of Certificate of Inspection for which he was also convicted. We affirm in part and vacate in part.

The pertinent facts are as follows: In December 1989, Pennsylvania State Police Trooper James E. Ruff obtained information from several informants concerning the sale of illegal inspection stickers from Fred Palmieri, who operated an auto inspection station, to Appellant, who operated a used car lot. Palmieri informed Trooper Ruff on December 8, 1989 that he sold the stickers to Appellant through Appellant’s mechanic, Norman Carder, at the rate of fifteen for two hundred dollars. On December 12, 1989, Robin Herman, an employee of Appellant, informed Trooper Ruff that she had observed the inspection stickers in Appellant’s possession and saw them being issued to Carder. On December 13, 1989, Carder informed Trooper Ruff that Appellant had approached him on several occasions, since the commencement of his employment with Appellant in August 1989, and asked him to obtain inspection stickers. Carder would comply, and then would attach the stickers on vehicles designated by Appellant. On December 14,1989, Trooper Ruff secured a search warrant for Appellant’s place of business, and on December 15, 1989, the warrant was executed. As a result of the search, thirty-three Pennsylvania Certificates of Inspection were removed from vehicles which were listed for sale. Trooper Ruff then conducted a thorough and extensive investigation of each of the confiscated stickers, cataloguing them and comparing them with the records from the inspection station. Trooper Ruff waited until the completion of the investigation on or about January 20, 1990 before initiating a criminal complaint on January 31, 1990. The complaint was issued on February 2, 1990, charging Appellant with one misdemeanor count of Deceptive Business Practices (18 Pa.C.S.A. § 4107(a)(4)), and thirty-three summary counts of Violations of Use of Certificate of Inspection (75 Pa.C.S.A. § 4730(a)(2)). Appellant filed an Omnibus Pre-Trial Motion, moving to quash the complaint, which the trial court denied. Appellant then filed an Amended Omnibus Pre-Trial Motion, moving to suppress any and all evidence seized during the search of Appellant’s place of business. The trial court denied this motion as well. The matter proceeded to trial, and a jury found Appellant guilty of Deceptive Business Practices. The trial court found him guilty of thirty-three summary Violations of Use of Certificate of Inspection, and imposed sentence. Following the denial of his Motion to Reconsider and Modify Sentence, Appellant brought this appeal.

Appellant raises four issues for our consideration:

1) Whether the trial court erred in refusing to suppress the physical evidence seized during the search of Appellant’s business premises when the affidavit of probable cause accompanying the search warrant did not establish a sufficient time frame as to when the inspection stickers were sold to Appellant, and was therefore legally insufficient?
2) Whether the trial court erred in refusing to quash the criminal complaint and information when they were not commenced within thirty days after the commission of the alleged offense or the discovery of the offender, whichever is later, as required by 42 Pa.C.S.A. § 5553(a)?
3) Whether the trial court erred in refusing to quash the criminal complaint and information when Appellant was charged with violating 18 Pa.C.S.A. § 4107(a)(4), a general provision of the penal code, and 75 Pa.C.S.A. § 4730(a)(2), a special provision of the motor vehicle code, when the law does not permit prosecution under a general provision if an applicable special provision exists which prohibits the same type of conduct?
4) Whether the trial court erred in refusing to quash the criminal complaint and information when 18 Pa.C.S.A. § 4107(a)(4) and the definitions contained therein are unconstitutionally vague?

Appellant’s first contention is that the affidavit accompanying the search warrant for his business premises did not adequately set forth a time frame which established continuing criminal activity. Therefore, Appellant argues, because the affidavit of probable cause was legally insufficient, the inspection stickers which were seized as a result of the search should have been suppressed.

In reviewing the rulings of the suppression court, our initial task is to determine whether the factual findings are supported by the record. Commonwealth v. Bell, 386 Pa.Super. 164, 562 A.2d 849 (1989). An affidavit for a search warrant is to be tested by this court with common sense and a realistic manner, and not subjected to overly technical interpretations; the magistrate’s determination of probable cause is to be accorded great deference on review. Commonwealth v. Prokopchak, 279 Pa.Super. 284, 420 A.2d 1335 (1980). The law is clear that before a search warrant may issue, facts supported by oath or affirmation must be presented to the issuing officer which will justify a finding of probable cause. Commonwealth v. Shaw, 444 Pa. 110, 281 A.2d 897 (1971). For the warrant to be constitutionally valid, the issuing officer must conclude that probable cause exists at the time the warrant is issued. Such a conclusion may not be made arbitrarily and must be based on facts which are closely related in time to the date the warrant is issued. Id. at 113, 281 A.2d at 899. If the officer is presented with evidence of criminal activity at some prior time, it must also be shown that the criminal activity continued up to or about the time the warrant is issued, in order to support a finding of probable cause. Id. See also Commonwealth v. Eazer, 455 Pa. 320, 312 A.2d 398 (1973). There is no hard and fast rule regarding what constitutes stale information; such determinations must be made on a case-by-case basis. Commonwealth v. Stamps, 493 Pa. 530, 427 A.2d 141 (1981). The applicable standard for determining the time limits to be placed on search warrants is one of reasonableness. Commonwealth v. Klimkowicz, 331 Pa.Super. 75, 479 A.2d 1086 (1984).

The affidavit in the instant case, when read in the light of common sense and the totality of the circumstances, supports the finding that probable cause existed for Trooper Ruff to search Appellant’s place of business. The nature of Appellant’s business was not a single, isolated occurrence to be pinpointed in time; rather, Appellant was engaged in a continuing course of conduct. For the purpose of determining whether information supporting issuance of a warrant has grown stale, the continuity of an illegal scheme may be established by the inherent nature of the criminal activity itself or evidence that the activity has extended over a period of time. Commonwealth v. Alewine, 384 Pa.Super. 283, 558 A.2d 542, appeal denied 524 Pa. 624, 574 A.2d 66 (1989). The offering of used cars for sale is an ongoing enterprise, necessarily involving the affixment of inspection stickers to the vehicles for sale. Having been informed by Carder regarding Appellant’s practice of obtaining the illegal stickers and his subsequent use of them in connection with the cars he was offering to the public for sale, Trooper Ruff reasonably concluded that Appellant continued to possess the illegal inspection stickers and that a portion of those stickers could be found on vehicles which were on Appellant’s premises at the time the warrant was issued. The existence of probable cause is determined by a consideration of the totality of circumstances as seen through the eyes of a trained police officer, not the average citizen. Commonwealth v. Tolbert, 235 Pa.Super. 227, 341 A.2d 198 (1975). Trooper Ruff, based upon his experience, concluded after his discussions with the informants in this case that the criminal activity described to him was of a continuous nature and that a warrant was necessary to secure evidence of this ongoing operation. We find support in the record for the existence of probable cause in this case, based upon the totality of circumstances. Therefore, we conclude that the affidavit of probable cause was legally sufficient and that no suppression of the evidence seized during the resulting search is warranted.

We will next address Appellant’s third contention, as the disposition of this issue controls whether the Commonwealth may bring charges under both code sections, and then be permitted to pursue the prosecution under the general code section when the charges under the special code section have been quashed as not timely filed. Appellant asserts that because the two statutes under which he is charged both apply to the same conduct, the Commonwealth is barred from prosecuting him under the general provisions of 18 Pa.C.S.A. § 4107(a)(4) and instead may only bring charges against him under the special provisions of 75 Pa.C.S.A. § 4730(a)(2). However, even if a general statute and a special statute have identical elements in the sense that the special wholly encompasses the general, both charges may still be pursued in one trial, as long as the general has elements outside the special. Commonwealth v. Warner, 504 Pa. 600, 476 A.2d 341 (1984). In the instant case, the general statute, Deceptive Business Practices, possesses the additional element of selling, offering or exposing for sale. Therefore, even though the conduct for which Appellant was prosecuted was encompassed completely by the special provision, Violations of Use of Certificate of Inspection, the presence of an additional element in the general statute permits the Commonwealth to charge Appellant under both statutes.

Having established that the Commonwealth is permitted to charge Appellant under both the general and special code provisions in the instant case, our next inquiry is whether the summary offenses Appellant was charged with under 75 Pa.C.S.A. § 4730(a)(2) should be quashed because they were not brought within thirty days after the discovery of the offense or the identity of the offender, pursuant to 42 Pa. C.S.A. § 5553(a). 42 Pa.C.S.A. § 5553(a) provides that:

... proceedings for summary offenses under Title 75 (relating to vehicles) must be commenced within thirty (30) days after the commission of the alleged offense or within thirty (30) days after the discovery of the commission of the offense or the identity of the Defendant, whichever is later, not thereafter.

In the instant case, the offense was committed prior to Trooper Ruffs discovery of the offense and of the identity of Appellant. Therefore, the time period for commencing charges against Appellant would have begun to run when it was discovered that an offense had been committed or that Appellant was the person who committed the offense. The Commonwealth argues that the identity of the offender was not discovered until Trooper Ruff had completed his investigation on or about January 20, 1990, and that therefore, the criminal complaint and information were timely filed. The trial court accepted this argument; however, we are not in agreement with the decision of the trial court. Trooper Ruff was aware of Appellant’s alleged criminal activity prior to the execution of the search warrant on December 15, 1989. He had been advised by three informants regarding the nature of the criminal activity and the identity of the offender. Upon searching the premises, thirty-three inspection stickers were seized by the trooper, and thus he obtained the necessary evidence to support the informants’ allegations that an offense had been committed by Appellant. Therefore, once the stickers which were in Appellant’s possession had been confiscated, sufficient evidence existed to support, with reasonable certainty, that Appellant had committed the summary offense of Violations of Use of Certificate of Inspection, 75 Pa.C.S.A. § 4730(a)(2). Because this violation is a summary offense, the thirty day time period set forth in 42 Pa.C.S.A. § 5553(a) is applicable. See Commonwealth v. Matthews, 286 Pa.Super. 474, 429 A.2d 37 (1981). The charges in the instant case were not filed until January 31, 1990, more than thirty days after the discovery that Appellant had committed the offense; therefore, we must reverse the trial court’s finding of guilt in regard to the summary offenses with which Appellant was charged.

The final argument Appellant asserts in this appeal is that because 18 Pa.C.S.A. § 4107(a)(4) and its definitions are unconstitutionally vague, the criminal complaint and information brought against him under that statute should have been quashed. A penal statute and its terms, in order to be constitutional, must be “sufficiently explicit to inform those who are subject to it, what conduct on their part will render them liable to its penalties.” Commonwealth v. Heinbaugh, 467 Pa. 1, 354 A.2d 244 (1976), citing Connolly v. General Construction Company, 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926). Contrary to Appellant’s contention, the terms “adulterated” and “mislabelled” are expressly and succinctly defined in section (c) of the statute. It is readily apparent from the wording of the definitions that the type of conduct prohibited is the selling or offering for sale of any commodity that either varies from the quality standard or labeling standards prescribed by statute. Thus, the wording of the statute is sufficiently definite to have put Appellant on notice regarding what type of practices he was forbidden to employ in his business, and Appellant’s final argument is meritless.

Convictions for summary offenses vacated; in all other aspects, the judgment of sentence is affirmed. Jurisdiction relinquished.


author: WIEAND, Judge: CAVANAUGH, Judge,

text:
    616 A.2d 1384
    DAVIS & WARDE, INC., Appellant, v. Nadine TRIPODI, William Darney, and Butler Technologies, Inc., Appellees.
    Superior. Court of Pennsylvania.
    Argued Jan. 15, 1992.
    Filed Oct. 5, 1992.
    Reargument Denied Dec. 18, 1992.

      Jon G. Hogue, Pittsburgh, for appellant.
    Kenneth D. Perkins, Butler, for appellees.
    Before CAVANAUGH, WIEAND and HESTER, JJ.
   WIEAND, Judge:

In this action by Davis & Warde, Inc. to enforce restrictive covenants in contracts of employment with William Darney and Nadine Tripodi, the trial court refused to enforce the covenants. Its decision was based upon a perceived inadequacy of consideration to support the covenant. Davis & Warde, Inc. appealed. After careful review, we conclude that the consideration was sufficient to validate the restrictive covenants in the contracts of employment. Therefore, we reverse and remand for further proceedings.

Darney, a vice-president, and Tripodi, a top-level salesperson, were deemed key employees of the printing business conducted by Davis & Warde in Pittsburgh. Their responsibilities included marketing, customer contact, sales and distribution of Davis & Warde’s products and services. Prior to April, 1989, Davis & Warde created a new specialty division under the name and style of DAWAR Technologies. This entailed the investment of substantial additional capital. In order to protect its investment in the new division, Davis and Warde asked certain key employees to execute written employment contracts which contained, inter alia, restrictive covenants. Darney and Tripodi were offered new duties and responsibilities in the DAWAR specialty division and were asked to sign written contracts of employment. The restrictive covenant contained restrictions pertaining to the use of proprietary information acquired during employment and provided for noncompetition for a period of one year. As an inducement, Darney and Tripodi were offered a cash consideration, a new severance package including two weeks severance pay, and a written guarantee of certain job benefits, including a new and different policy regarding reimbursement for automobile expenses. Darney and Tripodi held the agreements for review for several months and then, in April, 1989, accepted the terms of the written agreement. By the fall of 1990, however, Darney and Tripodi had voluntarily terminated their employment with Davis & Warde and had formed a competing enterprise known as Butler Technologies, Inc. Through this new enterprise they allegedly solicited business from Davis & Warde’s customers.

Appellant filed a complaint in equity seeking to enjoin its former employees from competing in violation of their agreements not to do so. It also petitioned for temporary relief in the form of a preliminary injunction. On January 18, 1991, a hearing was held before the motions judge, and a temporary restraining order was entered against Tripodi and Butler Technologies. Because Darney’s ill health prevented his attendance and participation, no relief was granted against him.

When Davis & Warde thereafter petitioned for a hearing against Darney, the hearing was assigned to another judge who, with the parties’ consent, limited the scope of hearing to the validity of the restrictive covenant. The order of the trial court was as follows:

The sole issue to be considered is the validity of the employment contracts. A preliminary injunction will issue as to Defendant Darney if [the] Court preliminarily finds for plaintiff on this issue, and [a] preliminary injunction as to Defendants Tripodi and Butler Technologies will remain in full force and effect. Prior preliminary injunction issued as to Defendants Tripodi and Butler Technologies will be dissolved if [the] Court finds for Defendants on this issue.

At the close of appellant’s evidence, the trial court invited appellees to move for dismissal, and, when the motion was made, the court entered an order denying the request for preliminary relief.

In reviewing orders involving preliminary injunctions, the Superior Court has said:

A trial court has broad discretion in granting or denying a preliminary injunction. We will reverse such a decision only if the trial court abused its discretion or committed a palpable legal error. Merrill Lynch, Pierce, Fenner & Smith v. Moose, 365 Pa.Super. 40, 47, 528 A.2d 1351, 1355 (1987) (citing, inter alia, Unionville-Chadds Ford School District v. Rotteveel, 87 Pa.Commw. 334, 336-7, 487 A.2d 109, 111 (1985)). We must uphold the trial court’s decision if it can be sustained on “any apparently reasonable ground.” Id.; John G. Bryant Co., Inc. v. Sling Testing and Repair, Inc., 471 Pa. 1, 369 A.2d 1164 (1977); Sidco Paper Co. v. Aaron, 465 Pa. 586, 351 A.2d 250 (1976); Air Products and Chemicals, Inc. v. Johnson, 296 Pa.Super. 405, 442 A.2d 1114 (1982); Boyd v. Cooper, 269 Pa.Super. 594, 410 A.2d 860 (1979).

Bell Fuel Corp. v. Cattolico, 375 Pa.Super. 238, 244, 544 A.2d 450, 453 (1988), allocatur denied, 520 Pa. 612, 554 A.2d 505 (1989).

The employment agreement signed by Darney and Tripodi contained covenants preventing the use of proprietary information acquired during employment. In addition, a noncom-petition clause was inserted for a period of one year but without geographic limitations. This covenant provided:

13. Noncompetition. The Employer recognizes that the Company is and will in the future be engaged in highly competitive businesses and products. During his employment with the Company and for a period of one year thereafter, the Employee agrees that he will not, directly or indirectly, sell the products of, own, manage, operate, control, be employed by, participate in, or be connected in any manner with the ownership, management, operation or control of, any business competitive with the Company or any of its products or services. Further, if the Employee’s employment with the Company terminates for any reason, the Employee shall not, for a period of one year from the date of termination, have any business dealings whatsoever, either directly or indirectly or through corporate entities or associates, with any customer or client of the Company or its subsidiaries or any person or firm which has contacted or been contacted by the Company as a potential customer or client of the Company.

“[I]n order to be enforceable a restrictive covenant must satisfy three requirements: (1) the covenant must relate to either a contract for the sale of goodwill or other subject property or to a contract for employment; (2) the covenant must be supported by adequate consideration; and (3) the application of the covenant must be reasonably limited in both time and territory.” Piercing Pagoda, Inc. v. Hoffner, 465 Pa. 500, 506-507, 351 A.2d 207, 210 (1976). See also: Bell Fuel Corp. v. Cattolico, supra, 375 Pa.Super. at 250, 544 A.2d at 456; Modern Laundry & Dry Cleaning v. Farrer, 370 Pa.Super. 288, 291-292, 536 A.2d 409, 411 (1988). In Jacobson & Co. v. International Environment Corp., 427 Pa. 439, 235 A.2d 612 (1967), the Court recognized the validity of restrictive covenants entered into subsequent to an employee’s initial employment. The Court said:

[I]n many instances, including the present case, the insertion of a restrictive covenant in the original contract would serve no valid purpose. An employer who hires a novice has no desire to restrict his present competitive force. Only when the novice has developed a certain expertise, which could possibly injure the employer if unleashed competitively, will the employer begin to think in terms of the protection of a restrictive covenant. This is an economic reality, and the law should be influenced by it.

Id. at 450, 235 A.2d at 618. When an employee enters into an employment contract containing a covenant not to compete subsequent to employment, however, the covenant “must be supported by new consideration which could be in the form of a corresponding benefit to the employee or a beneficial change in his employment status.” Modern Laundry & Dry Cleaning v. Farrer, supra, 370 Pa.Super. at 293, 536 A.2d at 411, citing George W. Kistler, Inc. v. O’Brien, 464 Pa. 475, 347 A.2d 311 (1975); Maintenance Specialties, Inc. v. Gottus, 455 Pa. 327, 314 A.2d 279 (1974). The adequacy of consideration to support a restrictive covenant is an issue of law. With respect thereto, the courts have stated, “as long as the restrictive covenant is an auxiliary part of the taking of employment and not a later attempt to impose additional restrictions on an unsuspecting employee, a contract of employment containing such a covenant is supported by valid consideration and is therefore enforceable.” Modern Laundry & Dry Cleaning v. Farrer, supra, 370 Pa.Super. at 293, 536 A.2d at 411, citing Beneficial Finance Co. v. Becker, 422 Pa. 531, 222 A.2d 873 (1966).

Davis and Warde, as we have already observed, created a new, multimillion dollar specialty division. To protect its investment and insure the specialty division an opportunity to develop profitably without unfair competition by knowledgeable employees, the company requested Darney and Tripodi, both of whom were employees at will, to sign written contracts of employment containing covenants not to compete. Darney and Tripodi studied the agreements for several months before signing them. It cannot seriously be contended, therefore, that the covenants not to compete were foisted upon unsuspecting employees. Indeed, Darney, a vice-president and the person responsible for the day-to-day operations of DAWAR, and Tripodi, who was responsible for DAWAR’s marketing and sales, were not only familiar with DAWAR’s operation but had been instrumental in its creation. They, better than most, were aware of their employer’s need to limit future competition until the fledgling division could get off the ground. Not only were they offered continued employment with new responsibilities, but each was given a cash payment, a guarantee of certain job benefits, including a favorable change in the employer’s automobile reimbursement policy, and a guaranteed severance benefit in the event of termination, all of which were to be incorporated into a written contract of employment. This, in our judgment, is consideration sufficient to support the written contracts of employment and the restrictive covenants contained therein.

The covenant not to compete in the instant case, although limited in time, was not limited geographically. This does not necessarily impair the validity of the covenant, but any relief granted by the trial court must be geographically limited so as not to exceed that which is reasonably necessary to provide the protection for which appellant contracted. See: Sidco Paper Co. v. Aaron, 465 Pa. 586, 594-595, 351 A.2d 250, 254-255 (1976) (“where the covenant imposes restrictions broader than necessary to protect the employer, we have repeatedly held that a court of equity may grant enforcement limited to those portions of the restrictions which are reasonably necessary for the protection of the employer.”); Bell Fuel Corp. v. Cattolico, supra (trial court may define geographic scope of covenant after receiving proper evidence upon remand); Quaker City Engine Rebuilders, Inc. v. Toscano, 369 Pa.Super. 573, 584-585, 535 A.2d 1083, 1089 (1987) (“In Pennsylvania, an otherwise valid restrictive covenant which is geographically overbroad is ‘divisible and enforceable [once it has been limited by the court] to reasonable geographical limits’ ”; therefore case remanded to trial court to determine reasonable geographic scope of covenant). See also: ThermoGuard, Inc. v. Cochran, 408 Pa.Super. 54, 65-66 n. 9, 596 A.2d 188, 194 n. 9 (1991). On remand, this determination should be made by the trial court.

Because the trial court’s refusal to enforce the restrictive covenant was based on an error of law, we are constrained to reverse.

Reversed and remanded for further proceedings consistent with the foregoing opinion. Jurisdiction is not retained.

CAVANAUGH, J., files a dissenting opinion.

CAVANAUGH, Judge,

dissenting:

I respectfully dissent. The majority rightly declares that if an employer asks an employee to execute a covenant not to compete subsequent to the employee’s hiring, the covenant “must be supported by new consideration which could be in the form of a corresponding benefit to the employee or a beneficial change in his employment status.” Majority Opinion at 455, quoting Modern Laundry & Dry Cleaning v. Farrer, 370 Pa.Super. 288, 293, 536 A.2d 409, 411 (1988). Given its acceptance of this well-settled rule, the lower court’s ruling should be affirmed. The lower court found that the consideration the appellant offered the appellees in exchange for their acquiescence to restrictive covenants in their employment contracts — $100.00, two weeks severance pay, and continued employment — was mere “window dressing” and de minimus and thus not adequate consideration for the covenants. While I would not characterize the foregoing consideration as de minimus, it certainly does not amount to a “corresponding benefit” or a “beneficial change in employment status” as the majority holds. The majority’s ruling that it amounts to such largely emasculates the requirement of adequate consideration for a covenant not to compete entered into subsequent to employment. Accordingly, I would affirm the lower court’s ruling on this issue. I would also hold that the two procedural issues raised by the appellant are meritless. I address each issue raised by the appellant in a separate section.

Preliminarily, I note that this appeal is from an order denying the appellant’s Motion for a Preliminary Injunction. A preliminary injunction is rarely granted, as “a preliminary injunction is somewhat like a judgment and execution before trial....” Herman v. Dixon, 393 Pa. 33, 36, 141 A.2d 576, 577 (1958); accord Hospital Ass’n v. Com., Dept. of Public Welfare, 495 Pa. 225, 233, 433 A.2d 450, 454 (1981). Relief of this nature should only be granted where:

there is an urgent necessity to avoid injury which cannot be compensated for by damages and [relief] should never be awarded when the rights of the plaintiff are clear. Also, it should in no event be issued unless the greater injury will be done by refusing it.

Hospital Ass’n, supra at 233, 433 A.2d at 454, quoting Dixon, supra, 393 Pa. at 36-37, 141 A.2d at 577.

Appellate relief from a decree granting (or refusing) a preliminary injunction is even more stringent, and incurs what has been termed an “additional burden.” Id., 495 Pa. at 233, 433 A.2d at 454; Parker v. Philadelphia, 391 Pa. 242, 247, 137 A.2d 343, 346 (1958). Appellate review is limited in such cases to whether the action of the lower court had “any apparent reasonable ground.” Hospital Ass’n, supra, 495 Pa. at 234, 433 A.2d at 454, quoting Bell v. Thornburgh, 491 Pa. 263, 267, 420 A.2d 443, 445 (1980)). We have interpreted this standard to mean that “[a]n appellate court will interfere with the decision of the chancellor only if it is clear that no grounds exist to support the decree or that the rule was palpably erroneous or misapplied ...” Bell, supra at 267, 420 A.2d at 445; Willman v. Children’s Hosp. of Pittsburgh, 505 Pa. 263, 269, 479 A.2d 452, 455 (1984); quoting Intraworld, Inc. v. Girard Trust Bank, 461 Pa. 343, 354, 336 A.2d 316, 332 (1975).

I.

The law of Pennsylvania has repeatedly emphasized that in order to enforce a restrictive covenant it must (1) relate to (be ancillary to) a contract for the sale of the good will of a business or to a contract of employment; (2) the covenant must be supported by adequate consideration; and (3) the covenant must be limited in time and territory. George W. Kistler v. O’Brien, 464 Pa. 475, 480, 347 A.2d 311, 314 (1975); Modern Laundry & Dry Clean v. Farrer, 370 Pa.Super. 288, 291-2, 536 A.2d 409, 411 (1988). Even if an employee enters into an employment contract containing a covenant not to compete subsequent to employment, “it must be supported by new consideration which could be in the form of a corresponding benefit to the employee or a beneficial change in his employment status.” Modern Laundry, supra at 293, 536 A.2d at 411; accord Kistler, supra, 464 Pa. at 484-5, 347 A.2d at 316; Maintenance Specialties, supra, 455 Pa. at 331, 314 A.2d 279, 281; Ruffing v. 84 Lumber Co., 410 Pa.Super. 459, 600 A.2d 545, 548 (1991). Post-employment restrictive covenants are subject to a more stringent test of reasonableness than covenants which are ancillary to a sale of a business. Thermo-Guard, Inc. v. Cochran, 408 Pa.Super. 54, 596 A.2d 188, 194 (1991).

Admittedly, case law in our jurisdiction regarding what constitutes “a corresponding benefit or beneficial change in employment status” has been limited at the present time to extremes. Where the consideration was either slight or nonexistent, the covenant not to compete was found to be invalid. It is clear that the mere continuation of the employment relationship is not sufficient consideration for a restrictive covenant despite the fact that the employment relationship was terminable at-will by either party. Maintenance Specialties, supra, 455 Pa. at 331, 314 A.2d at 281 (Jones, C.J., Concurring). Similarly, our courts have found consideration lacking where the monetary benefit of the consideration was slight or non-existent. For instance, it has been held that $1.00 is not adequate consideration to support a restrictive covenant. Kistler, supra, 464 Pa. at 485 n. 5, 847 A.2d at 316 n. 5. A provision which required the employer to give the employee notice before termination has not been considered sufficient consideration to support a covenant not to compete. Maintenance Specialties, supra, 455 Pa. at 330 n. 1, 314 A.2d at 281 n. 1 (fifteen days); Capital Bakers, Inc. v. Townsend, 426 Pa. 188, 191, 231 A.2d 292, 294 (1967) (thirty days). A provision which changed an employee’s relationship from at-will to week-to-week was also not sufficient consideration. Markson Bros. v. Redick, 164 Pa.Super. 499, 505, 66 A.2d. 218, 220 (1949).

Restrictive covenants, however, have been found valid where it was absolutely clear that an employee received a change in status that either enabled him to increase his earnings substantially or provided him with the potential to increase his earnings substantially. For instance, sufficient consideration for a restrictive covenant was found when an employee became a commission-earning salesman and received travel expenses when formerly the employee had been a salaried employee servicing the complaints of the salesmen’s customers. M.S. Jacobs & Associates, Inc. v. Duffley, 452 Pa. 143, 146-7, 303 A.2d 921, 923 (1973). Similarly, the change of an employee to a salesman supervising a specific route and receiving a commission of 17% of all the cash collected from the status of a provisional, salaried employee constituted sufficient consideration for a restrictive covenant. Modern Laundry, supra, 370 Pa.Super. at 293, 536 A.2d at 412. Where an independent contractor for a company became an employee of the company, receiving a written employment contract and the employer’s assumption of unemployment and social security taxes and contributions to the company pension plan, valid consideration was found. Pennsylvania Funds Corporation v. Vogel, 399 Pa. 1, 5-6, 159 A.2d 472, 475 (1960). Finally, when an employee received an ownership interest in the firm, such that there existed the potential the employee could realize a significant gain in total compensation, we held that adequate consideration existed. Wainwright’s Travel Service, Inc. v. Schmolk, 347 Pa.Super. 199, 204, 500 A.2d 476, 478 (1985).

The case before us admittedly falls on the continuum between these two extremes. Notwithstanding, I agree with the lower court that the consideration offered in this case bears much greater resemblance to cases where we found that the consideration was not sufficient. The appellant claims that $100, two weeks severance pay, and continued employment is a “corresponding benefit” or a “beneficial change in employment status.” This is plainly not so, as analyzing each so-called benefit more closely shows.

Continued employment has been specifically rejected as adequate consideration for a post-employment covenant not to compete. See Maintenance Specialties, supra. Thus, it is hard to discern why it should be considered as a factor in determining whether a “corresponding benefit to the employee or beneficial change in employment status” exists. Moreover, the $100 payment alone, without more, is surely not akin to the significant rights the employee would give up through a one year restrictive covenant. Finally, a promise of two weeks of severance pay, although a more significant economic benefit, is (1) a deferred benefit that (2) might never be received by the employee. Severance pay is a deferred benefit because the appellant is not obligated to pay the appellees the benefit until they leave the company or are terminated. Severance pay might not be received by the employee because it is only payable if an employee leaves the company before retirement, and if his company remains solvent. Although severance pay is not a trivial benefit, I cannot say, even with the “added benefit” of continued employment and a $100 payment, that there was sufficient consideration to establish the restrictive covenant was ancillary to a principal transaction. I note that the appellees received no promotion, change of title, raise, or other sign of a change in employment status. See Modern Laundry, supra, 370 Pa.Super. at 293, 536 A.2d at 412 (“After signing the employment contract, [the employee] received a significant change in employment status.”); Wainwright’s Travel Service, supra, 347 Pa.Super. at 203, 500 A.2d at 478 (ownership interest given to employee in corporation).

The majority opinion suggests, but does not hold, that the better reasoned position is that no consideration should be required to execute a covenant not to compete entered into subsequent to employment aside from continued employment. See Majority Opinion at 456 n. 3. It finds convincing the argument that since at will employees like the appellees can be terminated at any time for any reason, an offer of continued employment should constitute adequate consideration for the execution of a covenant not to compete. See Id.; see also Maintenance Specialties, Inc., supra, 455 Pa. at 337, 314 A.2d at 284-5 (Manderino and Roberts, JJ., dissenting). The tenor of this argument is that there exists no significant difference between requesting an employee to execute such a covenant as a condition of employment, and requesting the employee to execute one subsequent to employment. Id. Advocates of this position feel it is logically inconsistent to require consideration for the execution of such a covenant, as an employer could have hired new employees, and fired his present ones, if his present employees failed to execute the covenants. Id. As perhaps their view informs whether the consideration in this case is adequate, Justice Manderino’s minority view must once again be revisited.

Justice Manderino’s position appears analytically sound at first glance, but given a closer look seems divorced from the realities of life. It fails to recognize that subsequent to employment the position of the employer to exact a covenant not to compete is greater, and the employee’s ability to resist one is weaker. When initially searching for employment, all things being equal, a person will prefer to chose a position which is the most attractive. Surely, a covenant not to compete is a significant disincentive to pick a particular employer, as it prevents a person from finding employment in his given profession in a certain specified geographical area. Given a free market, employment seekers will chose to work for employers who do not require this restraint on their freedom. However, once a person invests the often significant time and effort in finding a new job, it is difficult both economically and emotionally for the employee to walk away when the employer makes an unattractive employment condition. The employer, the entity on whose livelihood the employee (and his family) depends, accordingly is in a much better position to extract from his employee a covenant not to compete subsequent to employment.

As the majority recognizes, the appellant has-not attempted to argue to the lower court or to this court that it was entitled under Pennsylvania law, independent of any contractual arrangement, to have its trade secrets and confidential customer lists protected. Majority Opinion at 453 n. 2. Instead, the appellant has raised only the issue of adequate consideration in the context of a restrictive covenant not to compete. Id. While I find that certainly an employer has a strong interest in protecting confidential information produced through its business activities, the interest it has in restraining a former employee from honestly competing against him is significantly less. The majority asserts that that somehow a covenant not to compete prevents unfair competition by former employees. Id. at 456. This supposition is more false than true. The employer is already significantly protected from unfair competition apart from any contract under Pennsylvania law, which protects the most valuable asset of the employer: his confidential information and customer lists. A covenant not to compete, however, does not protect confidential information, but restricts potential future competition by a former employee, even with companies the employer currently does not do business.

I find that the common law rightly held such agreements, especially subsequent to employment, with disfavor. These agreements screen out all competition, whether fair or unfair. As was recognized in Morgan, the balance of the equities favors the employee:

A general covenant not to compete, however, imposes a greater hardship upon an employee than upon [an employer]. An employee is prevented from practicing his trade or skill, or from utilizing his experience in the particular type of work with which he is familiar. He may encounter difficulty in transferring his particular experience and training to another line of work, and hence his ability to earn a livelihood is seriously impaired. Further, the employee will usually have few resources in reserve to fall back upon, and he may find it difficult to uproot himself and his family in order to move to a location beyond the area of potential competition with his former employer. Contrawise, the mobility of capítol permits the businessman to utilize his funds in other localities and in other industries.

Morgan’s Home Equipment, supra, 390 Pa. at 631-2, 136 A.2d at 846; see also Maintenance Specialties, supra, 455 Pa. at 336, 314 A.2d at 284 (Pomeroy, J., Concurring) (“An employee who has an economic stake, or even an emotional stake, in the continuation of an existing at-will employment arrangement may find it difficult indeed not to accept a covenant not to compete when his employer demands it.”).

Therefore, I respectfully dissent. For the first time, the majority holds that limited, indeed partly speculative, economic perks constitute adequate consideration. The majority decision effectively eviscerates the efficacy of the requirement of a “corresponding benefit” or a “beneficial change in employment status” to support a covenant not to compete subsequent to employment. This ancient common law requirement continues to be just as sound today as it was in years past, as it goes beyond over-intellectualized economic theory and takes into the account the realities of the workplace. It recognizes that a covenant not to compete, as opposed to the protection of confidential employer information, imposes a much greater hardship on the employee, as it prevents him from competing fairly in his profession with a former employer within a geographical area.

II.

Appellant asserts also that the lower court erred in requiring the appellant to proceed first at the Preliminary Injunction Hearing. Appellant argues that the tenor of the law is that appellees had the burden of proving that these agreements were invalid. See, e.g., Seligman & Latz of Pittsburgh, Inc. v. Vernillo, 382 Pa. 161, 164, 114 A.2d 672, 673 (1955) (employee has the burden of proving a restrictive covenant constitutes an unreasonable or illegal restraint on trade); see also, John G. Bryant Co., Inc. v. Sling Testing & Repair, Inc., 471 Pa. 1, 12-13, 369 A.2d 1164, 1169-1170 (1977). Accordingly, appellant asserts that it was incumbent for the lower court to instruct the appellees to proceed first.

I would find this argument to be without merit, assuming the argument is not waived. Implicit to appellant’s argument is that the party which has the burden of proof necessarily must proceed first. Appellant, however, does not provide us with a legal citation standing for this proposition. In fact, there is no indication from the cases that appellant cites that the employee must proceed first.

I do not believe that the party with the burden of proof must proceed first necessarily or even as a general rule. There does not appear to be a procedural rule in our Commonwealth’s Rules of Civil Procedure governing the circumstances under which a party is required to present its case-in-chief first. However, the absence of such a rule indicates that the order of proceeding is within the province of the trial court. “The conduct of a trial is within the discretion of the trial judge, and his exercise of discretion will not be reversed in the absence of an abuse thereof.” Kearns v. Clark, 343 Pa.Super. 30, 40, 493 A.2d 1358, 1363 (1985); accord Air Products and Chemicals, Inc. v. Johnson, 296 Pa.Super. 405, 433, 442 A.2d 1114, 1129 (1982); DeFulvio v. Holst, 239 Pa.Super. 66, 68, 362 A.2d 1098, 1099 (1976). The question becomes whether the trial court abused its discretion.

The appellant claims, aside from the fact that the appellees had the burden of proving the invalidity of the agreement, that the procedural posture of the case made it particularly incumbent that the lower court instruct the appellees to proceed first. A preliminary injunction had already been granted in this case as to appellees Tripodi and Butler Technologies, which allegedly indicated that the appellant would be able to establish grounds for relief. The appellant notes that since the lower court granted appellees’ motion to dismiss at the close of appellant’s case-in-chief, appellees presented no evidence which could challenge the validity of the agreements.

The trial court did not abuse its discretion. Firstly, the appellant was the plaintiff in the action below seeking the injunction. Traditionally, the plaintiff or moving party proceeds first in a civil action. Second, the appellees that the consent order of April 10, 1991 implies by its allotment of time which party was to proceed first. The order indicates that plaintiff has 45 minutes for direct; then defendant has 15 minutes for cross-examination; then defendant has 45 minutes for direct; and then the plaintiff has 15 minutes for cross-examination. If appellant’s attorney wished appellees to proceed first, he could have sought to structure the consent order to allow this to happen. Third, the substantive issue before the Court (and before us on appeal) was a discrete one: whether the payment of one hundred dollars, the promise of continued employment, and a promise of two weeks severance pay upon termination of employment constituted adequate consideration to support post employment covenants not to compete. Given the issue, the appellant would seem to be the party with the most knowledge as to what consideration was actually proffered. There exists a policy of interpreting our Commonwealth’s procedural rules in favor of proceeding in a manner which would be most efficient to the resolution of the matter before the Court (as long as a party is not deprived of a just determination). It is manifestly apparent that no abuse of discretion occurred in the case sub judice.

III.

Appellant’s final claim of error is that the lower court erred in refusing to permit testimony regarding the breach of the employment agreements and by refusing to allow appellant to make reference to Judge Wekselman’s January 22,1991 order. I have reviewed the Record, and am convinced that this argument is utterly without merit. As the lower court noted in its Opinion, the consent decree agreed to by the parties limited the scope of the hearings to the validity of the employment agreements. Although the scope of the hearing could have arguably encompassed other matters, the parties made clear in framing the issue before the court at the April 25, 1991, hearing that the issue to be determined was whether the employment restrictive covenants were valid in light of the consideration given to the appellees. Transcript at 3-4. Thus, the issue was an extremely narrow one in which the proposed testimony and Judge Wekselman’s January 22, 1991 order was irrelevant.

For the foregoing reasons, I would affirm the order below.

      . The order enjoined Tripodi and Butler Technologies from (a) contacting customers of the appellant; (b) using their knowledge of appellant’s business operations, products, and supplies to compete with appellant; (c) disclosing appellant’s confidential and proprietary information; (d) inducing appellant's customers to breach any and all agreements with appellant; (e) inducing appellant’s customers to do business with Tripodi, BTI, or any other person or entity other than appellant. Appellant posted a $60,000 bond as required by the trial court's order.

        . Appellant did not argue to the trial court or to this court that the alleged disclosure of confidential customer information was "in the nature of a ‘trade secret' for which an employer is entitled to protection, independent of a non-disclosure contract, either under the law of agency or under the law of unfair trade practices.” Morgan's Home Equipment Corp. v. Martucci, 390 Pa. 618, 623, 136 A.2d 838, 842 (1957) (citing Macbeth-Evans Glass Co. v. Schnelbach, 239 Pa. 76, 86 A. 688 (1913)) (emphasis added). Appellant also did not assert established principles of law which prevent “an employe from using customer contacts as well as confidential customer information to his own advantage by soliciting the customers of his former employer.” Id.., 390 Pa. at 626, 136 A.2d at 843. Instead, appellant raised only the issue of adequate consideration in the context of a restrictive covenant not to compete.

      . It has been argued, correctly, in our view, that an offer of continued employment, with the condition that the employee sign a restrictive covenant, constitutes adequate consideration where there is a preexisting contract of employment terminable at will by either party. Maintenance Specialties, Inc. v. Gottus, 455 Pa. 327, 314 A.2d 279 (1974) (Manderino and Roberts, JJ., dissenting). “If a restrictive covenant would be valid at the time an employee is first employed, I fail to see any logic to the prohibition against an employer requesting the same covenant subsequent to the employee’s initial employment as a condition of continued employment.... Why should an employer who requests a legal restrictive covenant at the time of initial employment have any advantage over an employer who later decides he should have such a restrictive covenant and no breach of any oral or written contract or other illegality is involved.” Id. at 337, 314 A.2d at 284-285. Under this view, because Darney and Tripodi were employees at will, the appellant could have discharged Tripodi and Darney and hired new employees who could have been required to execute restrictive covenants as part of their contracts of employment. Because this analysis represents a minority view at the present time, we have not relied upon this rationale in the instant case. See: Maintenance Specialties, Inc. v. Gottus, supra.

      . The majority opinion states in note 3 that, although it agrees with the minority view expressed by Justice Manderino to the effect that no consideration is necessary to support a covenant not to compete save the employee’s continued employment, see Maintence Specialties, Inc. v. Gottus, 455 Pa. 327, 314 A.2d 279 (1974) (Manderino and Roberts, JJ., dissenting), that it has applied settled law.

      . The majority states that the consideration offered to the appellees was not only a $100 cash payment, two weeks severance pay and continued employment, but a guarantee of certain job benefits, including a favorable change in the employer’s automobile reimbursement policy. However, the issue was framed by the parties before the lower court as follows:
      THE COURT: The issue as framed by the Defendants is whether payment of one hundred dollars is adequate consideration to support the employment restrictive covenant.
      Do you agree that is the issue in front of us?
      [APPELLANT’S COUNSEL]: I do not.
      The issue is the payment of one hundred dollars, promise of continued employment, and the placement of a provision in the employment contract for severance pay, constitute sufficient consideration.
      As the parties themselves did not consider the "guarantee of certain job benefits” significant enough to mention in framing the issue before the lower court, I would hold that this nebulous formulation is extraneous to our consideration on appeal. The lower court based its ruling on whether $100, two weeks severance pay and continued employment constituted adequate consideration for a restrictive covenant.
      Even if the appellant's "guarantee of certain job benefits” was appropriate for our consideration on appeal, I would nevertheless find that the benefits were of such slight worth that the basic question before us is still whether $100, 2 weeks severance pay, and continued employment constitutes adequate consideration for a restrictive covenant.

      . This is, of course, the same thing as saying that no consideration should be required at all, since from the employee’s point of view the status quo will not change except that he will be required to give up a significant freedom.

      . An employer is entitled to the protection of confidential customer information even apart from any employer-employee agreement containing a restrictive covenant, as articulated in the seminal case MacBeth-Evans Glass Co. v. Schnelbach, 239 Pa. 76, 86 A. 688 (1913). See also Morgan’s Home Equipment Corp. v. Martucci, 390 Pa. 618, 623-6, 136 A.2d 838, 842-43 (1957); Bell Fuel Corp. v. Cattolico, 375 Pa.Super. 238, 257-260, 544 A.2d 450, 460 (1988), alloc. denied, 520 Pa. 612, 554 A.2d 505 (1989); Agra Enterprises, Inc. v. Brunozzi, 302 Pa.Super. 166, 448 A.2d 579 (1982); Comment, Enforcement of Restrictive Covenants in Pennsylvania Employment Contracts, 80 Dickinson Law R. 693, 693 n. 3 (1976). The information protected, generally speaking, must be a particular secret of the employer and of particular importance to his business, not a general secret of the trade. Bell Fuel Corp., supra, 375 Pa.Super. at 258, 544 A.2d at 460. Moreover, given the existence of a confidential relationship, "the legal right to protection may arise either from an express covenant protecting the secret or may be implied from the confidential relationship between the employer and employee in which the information was conveyed.” Id., citing MacBeth-Evans Glass Co., supra. Information dealing with an employer's customers, including customer lists, may in particular be subject to protection. Morgan’s Home Equipment, supra, 390 Pa. at 623, 136 A.2d at 842. The inquiry in determining whether the customer information is protected revolves around whether the information is a particular secret belonging to the employer, developed through its efforts or investment, and of value to the continuation of the employer’s business. Bell Fuel Corp., supra, 375 Pa.Super. at 259, 544 A.2d at 461. Carl A. Colteryahn Dairy, Inc. v. Schneider Dairy, 415 Pa. 276, 280, 203 A.2d 469, 471 (1964); Spring Steels, Inc. v. Molloy, 400 Pa. 354, 358-9, 162 A.2d 370, 372-3, 471 (1960).

      . A covenant not to compete can be viewed as antithetical to the employment at will principle, in the respect that it impinges on the ability of one party, the employee, from terminating an employment relationship. Although the legal ability to terminate the relationship remains, in real terms such a covenant can place such an extreme hardship on the employee that terminating the relationship would be imprudent.

      . As noted above, severance pay is at best a deferred benefit and at worst one that will not materialize.

      . It appears from the Record that the appellant did not provide the lower court with any indication that it was dissatisfied with the court’s ruling that the appellant proceed first. See Pa. R.A.P. 227.1(b).