author: CIRILLO, President Judge:

text:
    536 A.2d 1364
    Sylvia VERDILE v. Vincent VERDILE, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 29, 1987.
    Filed Jan. 19, 1988.

      Morton B. Debroff, Pittsburgh, for appellant.
    Mark T. Knapp, Pittsburgh, for appellee.
    Before CIRILLO, President Judge, and JOHNSON and MONTGOMERY, JJ.
   CIRILLO, President Judge:

This is an appeal from an order of the Court of Common Pleas of Allegheny County granting a decree in divorce, an award of permanent alimony and counsel fees, and an award of equitable distribution of marital property.

Mrs. Verdile filed a complaint against her husband seeking a divorce, equitable distribution, alimony pendente lite, alimony, counsel fees, and expenses. Mr. Verdile answered the complaint and filed a counterclaim for alimony, equitable distribution, counsel fees, costs, and expenses. A hearing was held before the Honorable R. Stanton Wettick on the economic issues. On June 6, 1984, the court issued an order directing appellant to pay alimony pendente lite in the amount of $300.00 per month and granting Mrs. Verdile exclusive possession of the marital residence for one year.

Another hearing was held on May 6, 1986. A modified order of support was entered on June 2, 1986, ordering Mr. Verdile to pay $250.00 per month as alimony pendente lite, plus arrearages in the amount of $2,358.70. Appellant was determined to be in contempt and given the opportunity to purge himself by compliance with the order. Mr. Verdile’s unemployment compensation was attached, and on June 6, 1986 the court issued an order awarding Mrs. Verdile, inter alia, two thirds of the marital share of appellant’s retirement benefits and sixty percent of the remaining marital assets. Alimony pendente lite was terminated as of July 1, 1985, and replaced with permanent alimony as of that date in monthly payments of fifty percent of husband’s net monthly income over $800.00, not to exceed $4800.00 per year. The order specified that net monthly income did not include the marital share of retirement benefits awarded to Mr. Verdile. Post-trial motions were filed and denied, and Mr. Verdile appealed. On February 17, 1987 a per curiam order was entered quashing the appeal as interlocutory because, due to oversight on the part of the trial court and both parties, a divorce decree had not yet been entered. See Campbell v. Campbell, 357 Pa.Super. 483, 516 A.2d 363 (1986) (en banc) (pre-divorce order of equitable distribution entered before divorce decree is not a final appealable order). See also Pa.R.A.P. 1701(b)(6), 42 Pa.C.S.A.

Thereafter, appellant filed a motion to vacate the June 6 equitable distribution order and Mrs. Verdile petitioned the court to enter a divorce decree. On March 10, 1987, the court entered an order denying appellant’s petition to vacate and granting a decree in divorce. At the same time, the court rendered final its equitable distribution order of June 6, 1986. Appellant files this timely appeal.

Mr. Verdile raises the following issues: (1) whether the trial court erred in entering a decree of equitable distribution prior to entering a decree of divorce; (2) whether the court abused its discretion in making findings and entering an order regarding five different categories of matters to which there was no probative testimony presented; and (3) whether the court abused its discretion when it awarded Mrs. Verdile two thirds of her husband’s retirement benefits.

I

In Campbell v. Campbell, 357 Pa.Super. 483, 516 A.2d 363 (1986) (en banc), this court was faced with a procedural mishap similar to the one before us. In Campbell, as in the instant case, the trial court and the parties erroneously believed that a decree of divorce had been entered prior to the order of equitable distribution. A pre-divorce order of equitable distribution, even one entered upon the mistaken belief that a divorce decree has been entered, is not a final order. Id., 357 Pa.Superior Ct. at 488, 516 A.2d at 365. We agree with appellant that entry of an equitable distribution order prior to entry of a divorce decree is error; at that point the order is interlocutory and unappealable. That is why Mr. Verdile’s initial appeal was quashed by this court. While “[t]he courts of common pleas have been given [subject matter] jurisdiction to hear and decide divorce actions and related economic claims[,] ... [t]o enter a decree of equitable distribution prior to a divorce decree ... is improper.” Reese v. Reese, 351 Pa.Super. 521, 526, 506 A.2d 471, 474 (1986). The courts of common pleas are empowered to order equitable distribution only “contemporaneously with or subsequent to a decree in divorce.” Campbell, 357 Pa.Super. at 488-89, 516 A.2d at 366 (citations omitted). “Equitable distribution is an incident of divorce, not marriage.” Id. A trial court therefore is empowered to enter a distribution order only when the marriage is legally terminated.

In the case before us, the marriage between Mr. and Mrs. Verdile was legally terminated on March 9, 1987; at that time the court rendered final its equitable distribution order. The distribution order is reviewable once rendered final by entry of a divorce decree. Id. Therefore, we disregard the circuitous route taken in this case and conclude that the equitable distribution order is now ripe for appellate review.

II

Mr. Verdile also claims that the trial court abused its discretion in entering the March 10, 1987 order, which rendered final the equitable distribution order of June 6, 1986. The June 6th order provided:

On this 6th day of June, 1986, upon consideration of the parties’ claims for equitable distribution, alimony, and counsel fees, it is hereby ORDERED that:
(1) the wife (Sylvia Verdile) is awarded the marital residence. Within forty-five (45) days, the husband (Vincent Verdile) shall prepare a deed executed by the wife conveying this property to the wife.
(2) The wife is awarded her life insurance, her IRA, the household goods in the marital residence, the U.S. Savings Bonds, and $16,620 of the proceeds of the money market funds and certificates of deposit.
(3) The husband is awarded his life insurance, his IRA, the parties’ motor vehicles, and proceeds of $31,980 from the parties’ certificates of deposit and money market funds.
(4) The wife is awarded two-thirds of the marital share of the husband’s retirement benefits. To implement this award, the parties shall prepare a Qualified Domestic Relations Order which meets the requirements of the Retirement Equity Act of 1984 and is acceptable to the Plan Administrator. For purposes of determining the marital share of these benefits, this court finds that the parties were married on October 8, 1955 and separated on October 27, 1983.
(5) The husband is awarded the remaining share of the retirement benefits.
(6) The wife is awarded counsel fees of $3,000 which shall be paid from the proceeds awarded to the husband.
(7) The outstanding arrearages shall be paid to the wife from the proceeds awarded to the husband.
(8) The current court order governing alimony pendente lite shall terminate as of July 1, 1985. As of July 1, 1985, the wife is awarded permanent alimony calculated pursuant to paragraph 9 that shall terminate upon her death, her remarriage, or when the husband reaches age sixty-five (65).
(9) The wife shall receive monthly alimony payments in an amount of fifty (50%) percent of the husband’s net monthly income in excess of $800, provided, however, that the wife shall not receive alimony within any calendar year in excess of $4,800. The husband’s net monthly income shall not include the marital share of any retirement benefits awarded to the husband in paragraph 5.
(10) All other claims of either party to equitable distribution, alimony, and counsel fees are dismissed.
(11) This decree shall become final in accordance with Pa.R.C.P. Nos. 1920.52(a) and 227.4.

Mr. Verdile makes the following specific allegations in support of his attack on the order: (1) there is no testimony to support any claim that Mr. Verdile is employable; (2) there is testimony to support a conclusion that Mrs. Verdile is employable; (3) the record contains no probative testimony about the alleged physical or emotional problems of Mrs. Verdile; (4) there is no evidence in the record to support any claim of reasonableness of Mrs. Verdile’s counsel fees, or the reasonableness of having Mr. Verdile pay $3000.00 toward those fees; and (5) there is no evidentiary support for the award of permanent alimony to Mrs. Verdile.

The parties were separated in 1983 after twenty-eight years of marriage. They have two emancipated children. At the time of the hearing on May 6, 1986, Mr. Verdile, a former steel worker, was on layoff status and had been unemployed for approximately six months. With respect to employability, he testified: “I don’t have any plans for future employment, just figure I do what the rest of the people do in life____ Well, I look for anything, but nothing out there.” Moreover, appellant testified that he has the ability to install windows and to do remodeling work. Mr. Verdile’s sole income at the time was $100.00 of unemployment benefits. Although he is not retired, Mr. Verdile is eligible for a thirty-year pension benefit in the amount of approximately $588.00 per month.

An order determining equitable distribution will be reversed on appeal only for an abuse of discretion. Sergi v. Sergi, 351 Pa.Super. 588, 591, 506 A.2d 928, 930 (1986). An abuse of discretion is found only if there is insufficient evidence to support the trial court’s determination. Fortune v. Fortune, 352 Pa.Super. 547, 553, 508 A.2d 1205, 1208 (1986). In determining whether a court has abused its discretion, we do not usurp the trial court’s duty as fact finder. Barnhart v. Barnhart, 343 Pa.Super. 234, 237, 494 A.2d 443, 444 (1985); Ruth v. Ruth, 316 Pa.Super. 282, 287, 462 A.2d 1351, 1353 (1983).

Keeping in mind that the court was free to accept or reject each party’s testimony, we perceive no error in the trial court’s finding that Mr. Verdile is employable. See Baraff v. Baraff, 338 Pa.Super. 203, 487 A.2d 925 (1985). This finding is supported by credible evidence, and is therefore binding on review.

With respect to Mrs. Verdile’s employability, the trial court determined she has no job skills. Mrs. Verdile assumed primary responsibility for raising the parties’ children and maintaining the home throughout the marriage while Mr. Verdile provided financial support. In addition, the court found that appellant had physically and mentally abused Mrs. Verdile throughout the marriage. The court found Mrs. Verdile’s testimony credible, and accepted her testimony that serious physical and emotional problems prevent her from working. See Baraff, 338 Pa.Super. at 210, 487 A.2d at 929. Based on our review, we conclude the evidence was sufficient to support the trial court’s finding that Mrs. Verdile was not employable, and therefore we find no abuse of discretion. Sergi, 351 Pa.Super. at 591, 506 A.2d at 930.

Appellant also claims that the record contains no probative testimony, that is, expert medical testimony, of Mrs. Verdile’s emotional and physical problems. The court found no merit to this claim, concluding that Mrs. Verdile’s testimony concerned matters with which a lay person would be familiar. Mrs. Verdile testified that she was on medication (Serax and Desyrel) for anxiety, nervousness, and depression, and that she suffered from swelling and arthritis in her left leg and ankle. She also testified that she was brutally abused: -

I was locked in a hole in the porch, and he [appellant] kept hitting me with the heel of his shoe. Then when I tried to get out, he threw me back in there, and I was in there for about three hours, and he said he was going to burn me up in there____ He would tell me I was the bottom of the barrel ... and he used to push me around at the beginning, but then he put a knife to my throat. Then he started on the kids, and I was afraid he was going to hurt one of my daughters, which he did. He tried to throw her down a pair of steps the last time he was there, and she had to have back surgery because of it____ We used to go to bed with our clothes on because we didn’t know when he was going to throw us out in the middle of the night in our bed clothes.

Although the court excluded as hearsay a medical report which Mrs. Verdile sought to introduce to substantiate her claims, the court’s finding that Mrs. Verdile’s emotional and physical problems did in fact exist based on her own testimony is supported by the evidence. This testimony was unrebutted by appellant. The identity of Mrs. Verdile’s treating physicians was known to appellant, therefore prompting the court to find that he was in the position to refute her testimony by calling these physicians as witnesses. This he failed to do.

With respect to the court’s award of counsel fees, the record reveals that Mrs. Verdile’s counsel fees are in excess of $5,000.00. The court awarded Mrs. Verdile $3,000.00 in counsel fees after evaluating the financial situation of each party and their respective future earnings.

In reviewing an award of counsel fees, this court is limited to a determination of whether the trial court abused its discretion. McNulty v. McNulty, 347 Pa.Super. 363, 500 A.2d 876 (1985). As we pointed out above, in determining whether the court has abused its discretion, we do not usurp the court’s duty as fact finder. Barnhart, 343 Pa.Super. at 237, 494 A.2d at 444.

Here, the court pointed out that “through the equitable distribution award, giving [husband] most of the liquid assets, [he] is in a better position to pay [the fees].” The court evaluated the financial situation of each party and their respective future earnings, and concluded an award of $3,000 was reasonable. We find no abuse of discretion. McNulty, 347 Pa.Super. at 367, 500 A.2d at 877; see also Deck v. Dech, 342 Pa.Super. 17, 492 A.2d 41 (1985) (determination of award of counsel fees is made on case-by-case basis after analysis of all relevant factors including husband’s ability to pay, separate estate of wife, and character, situation, and surroundings of parties).

Appellant also claims there is no evidentiary basis for the court’s award of permanent alimony to Mrs. Verdile. Under the Divorce Code, the court may allow alimony as it deems reasonable only if it finds that the party seeking alimony: (1) lacks sufficient property to provide for his or her reasonable needs; and (2) is unable to support himself or herself through appropriate employment. 23 P.S. § 501(a); see also id. § 102(a)(6) (it is the policy of this Commonwealth to effectuate economic justice between parties who are separated or divorced and grant or withhold alimony according to actual need and ability to pay and to insure a fair and just determination and settlement of their property rights).

The court’s order specifies that alimony is to be paid •only if appellant’s net monthly income exceeds $800.00, in which case Mrs. Verdile is entitled to fifty percent of the excess. In addition, the annual alimony award is not to exceed $4800.00 per year, and the award does not include as monthly income the husband’s retirement benefits. The alimony award is very restricted. As a practical matter, alimony is not likely to become a reality, taking into consideration the appellant’s current monthly income and his attitude toward future employment. Based on the trial court’s findings and our limited review of alimony awards, we find no abuse of discretion here. See 23 P.S. § 501(a), (b); Miller v. Miller, 352 Pa.Super. 432, 508 A.2d 550 (1986).

Ill

Finally, Mr. Verdile claims that the court’s award to Mrs. Verdile of two thirds of the marital share of his pension was an abuse of discretion. We do not agree.

Under Pennsylvania law, pension benefits, both vested and non-vested, have been designated as marital property and are thus subject to equitable distribution. Barnhart v. Barnhart, 343 Pa.Super. 234, 494 A.2d 443 (1985); Flynn v. Flynn, 341 Pa.Super. 76, 491 A.2d 156 (1985); Braderman v. Braderman, 339 Pa.Super. 185, 488 A.2d 613 (1985); King v. King, 332 Pa.Super. 526, 481 A.2d 913 (1984); see also Major v. Major, 359 Pa.Super. 344, 518 A.2d 1267 (1986) (military pension benefits are marital property to extent they are acquired during marriage). We do not disagree with the court’s finding that Mr. Verdile’s pension was includable as marital property and thus subject to equitable distribution between the parties, nor do we disagree with the court’s finding that, for purposes of computing the marital share of the pension benefits, the parties were married on October 8, 1955 and separated on October 27, 1983. The court’s award of two thirds of the marital share of the pension benefits to Mrs. Verdile is, under the circumstances, an equitable distribution. See 23 P.S. § 401(d). “In many equitable distribution cases, an employee’s retirement plan represents one of the most valuable assets accumulated by the marital parties. Often, the marital home is the only other major asset.” Major, 359 Pa.Super. at 350, 518 A.2d at 1270. Such is the case here.

Based on inventories and appraisals executed by the parties, the court valued the parties’ assets, exclusive of the pension, as follows:

Marital Residence $40,000
Certificates of Deposit 36,000
Money Market Funds 12,600
U.S. Savings Bonds 4,000
Husband’s Life Insurance 4,900
Wife’s Life Insurance 1,500
Husband’s IRA 2,200
Wife’s IRA 300
Household Goods 2,200
Motor Vehicles 4,000

The court awarded Mrs. Verdile the marital residence, the household goods, her life insurance, her IRA, the United States Savings Bonds, and $16,620.00 of the proceeds from the money market funds and certificates of deposit. Her award is valued at $64,620.00, exclusive of her share of the pension and permanent alimony. The court awarded Mr. Verdile his life insurance, his IRA, the motor vehicles, and proceeds of $31,980.00 from the certificates of deposit and money market funds. His award, exclusive of the pension, is valued at $43,080.00.

As previously noted, Mr. Verdile is entitled, upon retirement, to a thirty-year pension benefit of approximately $600.00 per month. In light of the value of the property set apart to each party, see 23 P.S. § 401(d)(8), the sources of income of both parties, see id. § 401(d)(6), and the economic circumstances of each party, , see id. § 401(d)(10), we conclude that the court’s award to Mrs. Verdile of two thirds of the marital portion of the pension is not an abuse of discretion.

We recognize that “equitable does not automatically mean equal.” N. Perlberger, Pennsylvania Divorce Code § 5.2 at 3 (1980); see also Semasek v. Semasek 331 Pa.Super. 1, 11, 479 A.2d 1047, 1052 (1984) (concept of equitable distribution is not an equal division of the marital property). A court must apply the factors set forth in § 401(d) of the Divorce Code. LaBuda v. LaBuda, 349 Pa.Super. 524, 503 A.2d 971 (1986). This the trial court did.

We have carefully reviewed the economic futures of each party, and point out that each party has limited resources and little or no future earning capacity. We have also considered the fact that the court awarded the marital home to Mrs. Verdile. However, we note that Mr. Verdile is temporarily in layoff status and is hopeful of returning to work. Should that occur, or should Mr. Verdile become a participant in another pension plan, none of the pension benefits thereby accrued would be subject to equitable distribution. Mr. Verdile’s entire existing pension is not to be distributed. It is only that portion attributable to the marriage that is subject to equitable distribution, specifically, that portion which accrued between the date of marriage, October 8, 1955, and the date of separation, October 27, 1983. Mr. Verdile became eligible for the pension benefits approximately four years prior to the marriage. This portion is non-marital, as is any portion accruing after the date of separation. The non-marital portion, which is not yet fixed, was properly considered by the trial court pursuant to 23 P.S. § 401(d)(8). We conclude, therefore, that the trial court’s award of two thirds of the marital share of the pension to Mrs. Verdile was not an abuse of discretion.

Order affirmed.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    536 A.2d 1370
    In the Interest of Joseph BECKER, a Minor. Appeal of Joseph BECKER, a Minor.
    Superior Court of Pennsylvania.
    Argued Oct. 6, 1987.
    Filed Jan. 27, 1988.

      Michael C. Shields, Norristown, for appellant.
    Stephen B. Harris, Assistant District Attorney, Warring-ton, for Com., appellee.
    Before CIRILLO, President Judge, and WIEAND and OLSZEWSKI, JJ.
   WIEAND, Judge:

Joseph Becker, a juvenile, was adjudicated delinquent following a finding that he had operated a motor vehicle in such a manner as to recklessly endanger another person. On appeal from the dispositional order, Becker contends (1) that the evidence was insufficient to sustain the finding of the hearing court; (2) that the hearing court erred by allowing the petition to be amended to allege that, in addition to a specifically named person, appellant had endangered generally all other drivers on the highway; and (3) that the hearing court’s dispositional order violated standards established by the Juvenile Act.

On the morning of September 8, 1986, Becker and Richard Heller, also a juvenile, were driving separate vehicles to a vocational school where both were taking special classes. While one vehicle appeared to be following the other, both attained speeds of 65-70 m.p.h. as they travelled northwardly, passing other vehicles, on York Road in Warminster, Bucks County, where the speed limit was posted at 45 m.p.h. As the two vehicles approached Ivyland Road, an intersecting street, Heller’s vehicle moved into the left lane, entered the intersection in violation of a red traffic signal, and collided with a vehicle being operated on the cross street by Eleanor Capuzzi. As a result of the collision, Mrs. Capuzzi was killed and her two year old son, who with his sister was a passenger, was injured. Appellant was not involved in the accident. He brought his vehicle to a stop in the right lane and did not violate the red light.

Juvenile petitions were filed against both Heller and Becker, and they were heard together. Becker was charged with homicide by vehicle and recklessly endangering Eleanor Capuzzi. At the conclusion of the Commonwealth’s evidence, a defense demurrer on behalf of appellant was denied by the court. The Commonwealth then moved to amend the petition to allege.that Becker had also recklessly endangered other motorists on York Road. This amendment was allowed by the court over objection. The court then found Becker delinquent because he had recklessly endangered other drivers on York Road. At a subsequent dispositional hearing, appellant was directed to provide 350 hours of public service, participate in a program at “Project Self,” and pay unspecified costs of counseling for members of the Capuzzi family. His driver’s license was suspended indefinitely. Becker appealed. Enforcement of the dispositional order has been stayed pending the outcome of this appeal.

We conclude, after careful review, that the evidence was sufficient to support the court’s finding that appellant’s reckless conduct generally endangered other drivers. However, we also conclude that it was improper to allow an amendment to the petition during the adjudication hearing which changed the alleged victim of the offense from Mrs. Capuzzi to all other drivers on the highway. Therefore, we reverse and discharge the juvenile appellant.

Appellant was not involved in the collision which killed Mrs. Capuzzi. He did not enter the intersection against the redlight but stopped his vehicle as commanded by the signal. Therefore, it is difficult to find any evidence that he, by the manner in which he drove his vehicle, recklessly endangered the decedent. However, there was ample evidence that he had endangered other motorists by the manner in which he operated his vehicle on York Road.

The crime of recklessly endangering another person is defined at 18 Pa.C.S. § 2705 as follows:

A person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury.

This Court, in Commonwealth v. Trowbridge, 261 Pa.Super. 109, 115, 395 A.2d 1337, 1340 (1978), divided the offense of recklessly endangering another person into the following four elements: “(1) a mens rea — recklessness, (2) an actus reus — some ‘conduct’, (3) causation — ‘which places’, and (4) the achievement of a particular result — ‘danger’, to another person of death or serious bodily injury.” The term “recklessly”, as used in 18 Pa.C.S. § 2705, is defined at 18 Pa.C.S. § 302(b)(3) as follows:

A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and intent of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation.

The juvenile court, in its opinion regarding matters complained of on appeal, addressed the question of the sufficiency of the evidence in this case as follows:

[T]he credible evidence in the instant case clearly supports a finding beyond a reasonable doubt that the juvenile’s conduct placed others on the highway in danger of death or serious bodily injury. The juvenile drove his vehicle at 65 to 70 miles an hour in an area where the speed limit is 45 miles per hour. He followed closely behind or drove side by side the Monte Carlo which, it has been calculated, was moving as fast as 54 miles an hour after the impact which killed the victim. Officer William Overberger of the Warminister [sic] Township Police Department described the normal traffic flow on York Road during morning hours as moderate to heavy. (Notes of Testimony, January 13, 1987, p. 69).
In addition, the Escort and Monte Carlo were at times only a car-length apart and were weaving in and out of traffic despite the excessive speeds at which they were moving. The drivers of both cars were “laughing” and “having a good time” according to credible eyewitness testimony.
Based on the traffic flow, the excessive speed, the laughing and joking and the pattern of the juvenile’s driving, we find the evidence sufficient beyond a reasonable doubt to support a finding of recklessly endangering another person.

We agree that the evidence was sufficient to sustain the court’s finding. See: Commonwealth v. Henck, 329 Pa.Super. 275, 478 A.2d 465 (1984).

We agree with appellant, however, that he had not been charged with recklessly endangering unidentified drivers on York Road and that it was improper for the Commonwealth to amend the focus of its petition during the adjudication hearing by altering the person or persons allegedly endangered.

Although it is correct that juvenile proceedings are not subject precisely to the same procedural safeguards as adult, criminal prosecutions, the due process clause of the Fourteenth Amendment nevertheless requires that “ ‘the essentials of due process and fair treatment’ ” be afforded to juveniles. In re Gault, 387 U.S. 1, 30, 87 S.Ct. 1428, 1445, 18 L.Ed.2d 527, 548 (1967). See also: In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). In Gault, the Supreme Court held that the following rights attached to a juvenile proceeding: (1) the right to written notice of the specific charges or factual allegations against the juvenile, given sufficiently in advance of the hearing so as to allow for the preparation of a defense; (2) the right to counsel; (3) the privilege against self-incrimination; and (4) the right to confront and cross-examine adverse witnesses. See also: In re Bonner, 301 Pa.Super. 431, 447 A.2d 1043 (1982); Commonwealth v. Mitchell, 283 Pa.Super. 455, 424 A.2d 897 (1981), cert. denied, 454 U.S. 851, 102 S.Ct. 292, 70 L.Ed.2d 141 (1981).

In the instant case, the original juvenile petition filed against appellant had alleged that he:

Did recklessly engage in conduct, to wit, driving his vehicle at an unsafe speed, racing on the highway, and reckless driving, having placed one Eleanor Capuzzi, a white female, age 36, and her children, Nicholas, age 2, and Amanda 4 months, in danger of death or serious bodily injury, after the vehicle with which he was racing collided with the Capuzzi vehicle.

At the hearing, the Commonwealth’s evidence failed to show that appellant and Heller had been racing. And, as we have observed, appellant had not been involved in the fatal accident but had stopped before entering the intersection. When the Commonwealth rested, counsel for the appellant demurred to the evidence. The demurrer was denied. The Commonwealth then moved to amend the petition, and the hearing court, over objection, allowed an amendment as follows:

MR. FRITSCH [The Assistant District Attorney]: I would at this time, with respect to the petition against Mr. Becker, move to amend the recklessly endangering count not only to include the victim in the case, Mrs. Capuzzi, but other motorists on the highway between the area of Street Road and York Road and Ivyland____

In this manner, the charges against appellant were changed without any prior notice or opportunity to prepare a defense to a charge of recklessly endangering motorists on York Road.

In Gault, the Supreme Court defined adequate notice as follows:

Notice, to comply with due process requirements, must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded, and it must “set forth the alleged misconduct with particularity.” ... Due process of law requires notice of the sort we have described — that is, notice which would be deemed constitutionally adequate in a civil or criminal proceeding. It does not allow a hearing to be held in which a youth’s freedom and his parents’ right to his custody are at stake without giving them timely notice, in advance of the hearing, of the specific issues that they must meet.

In re Gault, supra, 387 U.S. at 33-34, 87 S.Ct. at 1446-1447, 18 L.Ed.2d at 549-550 (footnotes omitted). See also: Commonwealth v. Roskov, 224 Pa.Super. 393, 307 A.2d 63 (1973). Notice which is given for the first time at the delinquency hearing is not timely notice. In re Gault, supra, 387 U.S. at 33, 87 S.Ct. at 1446, 18 L.Ed.2d at 549.

If appellant had been an adult criminal defendant, the Commonwealth’s amendment of the petition would have been governed by Pa.R.Crim.P. 229, which provides:

The court may allow an information to be amended when there is a defect in form, the description of the offense, the description of any person or any property, or the date charged, provided the information as amended does not charge an additional or different offense. Upon amendment the court may grant such postponement of trial or other relief as is necessary in the interests of justice.

This rule of criminal procedure, although not applicable to a juvenile proceeding, see Pa.R.Crim.P. I, nonetheless is helpful because it is designed to address due process concerns. Commonwealth v. Hulehan, 338 Pa.Super. 309, 315-316, 487 A.2d 980, 983 (1985). See also: Commonwealth v. Jones, 250 Pa.Super. 471, 480, 378 A.2d 1245, 1249 (1977) (reasoning behind Pa.R.Crim.P. 220, governing amendment of indictments, “necessarily follows from the procedural safeguards contained in the Fifth and Fourteenth Amendments to the United States Constitution as well as the Pennsylvania Constitution”).

The purpose of Rule 229 is to insure that a defendant is fully appraised of the charges against him, and to avoid prejudice by prohibiting the last minute addition of alleged criminal acts of which the defendant is uninformed. See Commonwealth v. Jones, 250 Pa.Super. 471, 378 A.2d 1245 (1977); Commonwealth v. King, 227 Pa.Super. 168, 323 A.2d 260 (1974).

Commonwealth v. Stanley, 265 Pa.Super. 194, 212, 401 A.2d 1166, 1175 (1979) (footnote omitted), affirmed, 498 Pa. 326, 446 A.2d 583 (1982). See also: Commonwealth v. McDuffie, 319 Pa.Super. 509, 514-515, 466 A.2d 660, 662 (1983); Commonwealth v. Casuccio, 308 Pa.Super. 450, 460, 454 A.2d 621, 626 (1982). Rule 229, therefore, is designed to address and is consistent with the same due process aspects of notice which the Supreme Court held applicable to juvenile proceedings in Gault.

In the instant case, the Commonwealth argues on appeal that appellant was not prejudiced by the amendment of the juvenile petition, in that his defense was not altered and he was fully aware of the factual scenario which underlay the charge of recklessly endangering another person. We do not agree. Prior to amendment of the juvenile petition, appellant was charged with recklessly endangering Eleanor Capuzzi and her two children who were traveling on the intersecting street. Following the amendment, however, he was faced with the broader charge of recklessly endangering an unspecified number of motorists who were on York Road in the mile or mile and a half preceding the intersection where Heller and Capuzzi collided. This amendment changed not only the identity of the person allegedly endangered but also the actus reus, i.e., the physical acts which placed other persons in danger. After the Commonwealth had amended the petition, appellant not only had to defend his conduct in the immediate vicinity of the intersection, but he was made accountable for his conduct during the previous mile to mile and a half on York Road. This would have been impermissible under Pa.R.Crim.P. 229. See: Commonwealth v. Baranyai, 278 Pa.Super. 83, 92 n. 3, 419 A.2d 1368, 1373 n. 3 (1980) (amendment of information over defense objection by adding names of additional persons whom Commonwealth alleged had been oppressed by acts of misconduct on the part of defendant violated Rule 229). See also: Commonwealth v. Plybon, 279 Pa.Super. 329, 333-334, 421 A.2d 224, 226 (1980) (where Commonwealth moves to amend only after it has rested its case and defense has demurred, the potential for prejudice to defendant is heightened). Similarly, it was improper to allow the amendment of the petition in this juvenile proceeding.

In Commonwealth v. DeSumma, 367 Pa.Super. 634, 533 A.2d 453 (1987), a panel majority allowed an information to be amended to change the name of the victim of an alleged assault by physical menace. In that case, however, there was no change in the actus reus, i.e., the act constituting the physical menace. The act in DeSumma was the brandishing of a firearm. In the instant case, however, the amendment of the petition broadened the scope of inquiry from appellant’s conduct at the intersection to the manner in which he had operated his vehicle during the mile or mile and one-half prior to his arrival at the intersection. When the trial court reviewed the evidence, it stated that it had found appellant guilty of recklessly endangering another person not because of conduct alleged in the original petition but because of conduct alleged in the amended petition.

The record suggests, therefore, that appellant was adjudicated delinquent for an offense which was not charged in the original petition. Under these circumstances, the appropriate remedy is to direct appellant’s discharge. See: Commonwealth v. Herstine, 264 Pa.Super. 414, 419, 399 A.2d 1118, 1121 (1979).

Adjudication reversed and appellant discharged.

      . 42 Pa.C.S. § 6301 et seq.

      . Heller was found delinquent on the basis that he had committed the offenses of involuntary manslaughter, homicide by vehicle and recklessly endangering another person.

      . 75 Pa.C.S. § 3732.

      . 18 Pa.C.S. § 2705.

      . Pa.R.Crim.P. 229 pertains to the amendment of criminal informations. An identical provision in Pa.R.Crim.P. 220 pertains to the amendment of indictments. Rule 220 provides as follows:
      The court may allow an indictment to be amended where there is a defect in form, the description of the offense, the description of any person or any property, or the date charged provided the indictment as amended does not charge an additional or different offense. Upon amendment the court may grant such a postponement of trial or other relief as is necessary in the interests of justice.
      Cases interpreting Pa.R.Crim.P. 229 and 220 are interchangeable, for the rules have identical language. See: Commonwealth v. Casuccio, 308 Pa.Super. 450, 454 A.2d 621 (1982).

      . Pa.R.Crim.P. 1(a) provides:
      Rule 1. Scope of Rules
      (a) These rules shall govern criminal proceedings in all courts including courts not of record. Unless otherwise specifically provided, these rules shall not apply to juvenile or domestic relations proceedings.

      . With respect to appellant's assertion that the juvenile court's dispositional order did not conform to the standards set forth in the Juvenile Act, 42 Pa.C.S. § 6301 et seq., we must observe that appellant has failed to provide us with a transcript of the dispositional hearing. See: Commonwealth v. Williams, 357 Pa.Super. 462, 466, 516 A.2d 352, 354 (1986).


author: MONTEMURO, Judge: TAMILIA, Judge,

text:
    536 A.2d 1375
    Jeffrey CLAY and Mary Clay, Individually and as Husband and Wife, Appellants, v. ADVANCED COMPUTER APPLICATIONS, INC., Bjorn J. Gruenwald, Individually and as President of Advanced Computer Applications, Inc., and Richard Baus, Appellees.
    Superior Court of Pennsylvania.
    Argued Sept. 16, 1987.
    Filed Jan. 28, 1988.

      Lee D. Rockafellow, Morrisville, for appellants.
    Alfred J. Monte, Jr., Doylestown, for Advanced Computer, appellees.
    Dianne C. Magee, Doylestown, for Baus, appellee.

      Before CIRILLO, President Judge, and CAVANAUGH, BROSKY, DEL SOLE, MONTEMURO, TAMILIA, KELLY, POPOVICH and JOHNSON, JJ.
   MONTEMURO, Judge:

Appellants, Jeffrey Clay and Mary Clay, challenge the dismissal of their claims against appellees, Bjorn J. Gruenwald and Richard Baus. We affirm in part and reverse in part the order of the Bucks County Court of Common Pleas.

The Clays filed this action to recover damages for wrongful discharge, breach of an implied contract of employment and intentional infliction of emotional distress. In their complaint, they alleged that Bjorn Gruenwald had terminated their employment with Advanced Computer Applications, Inc. solely because Mary Clay had rebuffed the sexual advances of Richard Baus, a management-level employee. The complaint named as defendants (1) Advanced Computer; (2) Bjorn J. Gruenwald, both individually and as president of Advanced Computer, and (3) Richard Baus. On September 20, 1985, an attorney representing both Advanced Computer and Mr. Gruenwald filed preliminary objections to the Clays’ complaint. The preliminary objections contained a “motion to strike Bjorn J. Gruenwald as an individual defendant” and a “demurrer.” Both the “motion to strike” and the “demurrer” rested on the same two theories. The first was that Mr. Gruenwald had acted as an agent of Advanced Computer, not as an individual, in discharging the Clays. The second was that none of the allegations in the complaint were sufficient to state a cause of action against Mr. Gruenwald even if he had acted as an individual.

On October 4, 1985, an attorney representing Mr. Baus also filed preliminary objections to the complaint. These objections contained five “demurrers” and a “petition raising a question of lack of personal jurisdiction.” The “petition” challenged the method by which the sheriff served process against Mr. Baus. The “demurrers” in sum declared that the allegations in the Clays’ complaint were insufficient to state a cause of action against Mr. Baus for either wrongful discharge, breach of contract or intentional infliction of emotional distress. The trial court decided these preliminary objections together with those filed by the attorney for Advanced Computer and Mr. Gruenwald.

In an order dated April 7, 1986, the court referred to the various preliminary objections collectively as “motions to dismiss.” The order simply granted the “motions” without elaboration. In a subsequent opinion, however, the court offered three grounds for its action. First, the court reasoned that it lacked subject matter jurisdiction over any of the wrongful discharge claims because the Pennsylvania Human Relations Act, 43 P.S. § 951 et seq., and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., provide the exclusive remedy for grievances arising from sexual discrimination in the workplace. Second, the court concluded that the Clays had failed in their complaint to state a cause of action for breach of contract. The conclusion apparently applied to both Mr. Baus and Mr. Gruenwald, although only Mr. Baus specifically challenged the sufficiency of the breach of contract allegation. The order granted both “motions to dismiss” without distinguishing between the two. Moreover, the parties in their arguments on appeal have assumed that the trial court meant to dismiss the contract claim against Mr. Gruenwald as well as the one against Mr. Baus. Third, the court also concluded that the Clays had failed to state a cause of action for intentional infliction of emotional distress. Again, this apparently applied to both Mr. Gruenwald and Mr. Baus alike.

On appeal, the Clays raise the following issues:

1. Did the trial court err in dismissing the wrongful discharge claims for want of subject matter jurisdiction when none of the parties raised subject matter jurisdiction as a ground for dismissal?
2. Do either the Pennsylvania Human Relations Act or Title VII of the Civil Rights Act of 1964 bar common law tort actions for wrongful discharge in cases that arise from alleged sex discriminating?
3. Did the trial court act on its own initiative, rather than on the preliminary objections actually raised by the parties, when it dismissed the breach of contract and intentional infliction of emotional distress claims against Mr. Gruenwald and Mr. Baus?
4. Did the trial court err in concluding that the Clays failed in their complaint to state causes of action against Mr. Gruenwald and Mr. Baus for breach of contract and intentional infliction of emotional distress?

We will address these issues in order.

The Clays contend that the trial court could not raise lack of subject matter jurisdiction sua sponte as a ground for dismissal. We disagree. A court necessarily has the authority to determine on its own initiative whether it has jurisdiction to decide a controversy. See Hanik v. Pennsylvania Power Co., 308 Pa.Super. 352, 454 A.2d 572 (1982); Marcus v. Diulus, 242 Pa.Super. 151, 363 A.2d 1205 (1976). The action or inaction of the parties cannot bestow subject matter jurisdiction upon a court that otherwise lacks it. See T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 372 A.2d 721 (1977); Cheng v. Cheng, 347 Pa.Super. 515, 500 A.2d 1175 (1985). Our rules of procedure therefore provide that either the parties or the court sua sponte can raise lack of subject matter jurisdiction at any time. See Pa.R.C.P. 1032(2). See also LeFlar v. Gulf Creek Industrial Park No. 2, 511 Pa. 574, 515 A.2d 875 (1986); Cheng v. Cheng, supra; Shields v. C.D. Johnson Marine Service, 342 Pa.Super. 501, 493 A.2d 701 (1985). In the case now before us, the trial court properly addressed the jurisdiction issue even though the parties never raised it in their preliminary objections.

We nonetheless agree with the Clays that neither the Pennsylvania Human Relations Act, 43 P.S. § 951 et seq., nor Title VII of the Civil Rights Act of 1964, U.S.C. § 2000e, deprives the trial court of jurisdiction over the Clays’ wrongful discharge causes of action. The Clays had each sought relief for wrongful discharge against each of the three defendants. Their complaint offered three theories in support of these claims. First, the Clays maintained that their discharge “violated” the “public policy” of this Commonwealth. Second, they charged that the defendants acted with “malice.” Third, they indicated that the defendants breached an “implied covenant of good faith and fair dealing.” Although the trial court in its opinion mentioned only “good faith and fair dealing” specifically, it appears to have concluded that “statutory remedies” exclude any “tort cause action” for wrongful discharge, regardless of the underlying theory. In so concluding, the trial court has misconstrued the Human Relations Act and Title VII of the Civil Rights Act.

Section 962 of the Human Relations Act provides in part as follows:

(b) Except as provided in subsection (c), nothing contained in this act shall be deemed to repeal or supersede any of the provisions of any existing or hereafter adopted municipal ordinance, municipal charter or of any law of this Commonwealth relating to discrimination because of race, color, religious creed, ancestry, age, sex, national origin or handicap or disability, but as to acts declared unlawful by section five of this act the procedure herein provided shall, when invoked, be exclusive and the final determination therein shall exclude any other action, civil, or criminal, based on the same grievance of the complainant concerned. If such complainant institutes any action based on such grievance without resorting to the procedure provided in this act, he may not subsequently resort to the procedure herein____
(c) In cases involving a claim of discrimination, if a complaint invokes the procedures set forth in this act, that individual’s right of action in the courts of the Commonwealth shall not be foreclosed. If within one (1) year after the filing of a complaint with the Commission, the Commission dismisses the complaint or has not entered into a conciliation agreement to which the complainant is a party, the Commission must so notify the complainant. On receipt of such a notice the complainant shall be able to bring an action in the courts of common pleas of the Commonwealth based on the right to freedom from discrimination granted by this act.

43 P.S. § 962(b) and (c) (emphasis added). Subsection (b) of this provision plainly affords the aggrieved party an election of remedies. The party can opt either to pursue relief under the Human Relations Act or to pursue whatever other avenues are available, including “civil” actions. See Fye v. Central Transportation Inc., 487 Pa. 137, 409 A.2d 2 (1979); Daly v. School District of Darby Twp., 434 Pa. 286, 252 A.2d 638 (1969). Once the party elects his or her remedy, the chosen path becomes exclusive. See Fye, supra. The General Assembly did not intend to bar judicial remedies for discrimination in the workplace. It sought rather to address “the undesirability of allowing the person aggrieved to commence several different actions for relief.” Id., 487 Pa. at 140, 409 A.2d at 4. Section 962 therefore prevented the Clays from pursuing both an administrative and a judicial remedy in the present case. It did not, however, foreclose their right to choose at the outset between the courts or the Human Relations Commission.

Moreover, subsection (c), which the General Assembly added to Section 962 in 1974, expands the rights afforded by subsection (b). It allows the alleged victim of discrimination to seek judicial relief even though he or she has elected to invoke his or her administrative remedies. If the aggrieved party has not obtained relief from the Human Relations Commission within one year, he or she can then pursue an action, “in the courts of the Commonwealth.” See Baker v. Human Relations Commission, 507 Pa. 325, 489 A.2d 1354 (1985). Despite appellees’ suggestion to the contrary, subsection (c) does not condition the right to judicial relief in all discrimination cases upon the filing of a complaint with the Human Relations Commission. The provision applies by its own terms only to those complainants who have elected the administrative avenue and have not obtained relief. Any other reading of Section 962 would require us to distort the plain language of the Act. The Human Relations Act therefore does not deprive the trial court of jurisdiction over the Clays’ wrongful discharge actions.

In holding that relief is not exclusive to litigants under the Act, we necessarily overrule in part our previous decision in Householder v. Kensington Manufacturing Co., 360 Pa.Super. 290, 520 A.2d 461 (1987). In Householder, appellant sought to recover damages on the ground that her employer had discriminated against her because of a physical disability. A panel of this court upheld the trial court’s finding that the Human Relations Act preempted tort actions for wrongful discharge based on discrimination. As our decision herein makes clear, the trial court erred in deciding not to exercise jurisdiction.

Nor does Title VII of the Civil Rights Act thwart the exercise of jurisdiction in this case. The United States Supreme Court established over a decade ago that “[d]espite Title VII’s range and its design as a comprehensive solution for the problem of invidious discriminating in employment, the aggrieved individual clearly is not deprived of other remedies he possesses and is not limited to Title VII in his search for relief.” Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 459, 95 S.Ct. 1716, 1719, 44 L.Ed.2d 295 (1975). Our research indicates that Johnson continues to reflect the law under Title VII. None of the cases cited by the trial court indicate otherwise.

Although the court refused to exercise jurisdiction over the causes of action in tort for wrongful discharge, it addressed the breach of contract and intentional infliction of emotional distress claims on their merits. The court in effect sustained a demurrer in favor of Mr. Gruenwald and Mr. Baus on both claims. In their brief on appeal, the Clays suggest that the court acted on its own initiative, rather than in response to the preliminary objections actually filed by the parties. We disagree.

A court certainly cannot sustain a demurrer in favor of a party that has not demurred. See Luitweiler v. Northchester Corp., 456 Pa. 530, 319 A.2d 899 (1974). See also Galdo v. First Pennsylvania Bank, N.A., 250 Pa.Super. 385, 378 A.2d 990 (1977) (order striking joinder complaint improperly included party who had not filed preliminary objections). In the present case, however, both Mr. Gruenwald and Mr. Baus included demurrers among their other preliminary objections. Mr. Gruenwald objected on the ground that the complaint lacked “sufficient allegations ... to state a cause of action against Bjorn Gruenwald in an individual capacity.” He therefore requested “that a demurrer be granted on behalf of Bjorn J. Gruenwald individually.” Mr. Baus used similar language in his objections, although he addressed the wrongful discharge, breach of contract and intentional infliction of emotional distress claims separately.

We recognize that Pa.R.C.P. 1028(a) requires parties “to state specifically the grounds relied upon” for any preliminary objection and that Mr. Gruenwald and Mr. Baus were far from specific in this case. Use of boilerplate allegations defeats the primary purpose of pleading under our rules of procedure. Pleadings, including preliminary-objections, ideally should clarify the issues that divide the parties. See 3 Stand.Pa.Practice 2d § 16:2 (1981). The Clays, nevertheless, failed to call the lack of specificity to the attention of the trial court. A party faced with a preliminary objection that fails to conform to the specificity requirements of Rule 1028(a) must raise the defect by filing a preliminary objection of his or her own. See Samuels v. Hendricks, 300 Pa.Super. 11, 445 A.2d 1273 (1982). This objection can take the form of either a motion to strike under Pa.R.C.P. 1017(b)(2) or a motion for a more specific pleading under Pa.R.C.P. 1017(b)(3). Id. The party waives any procedural defect by failing to file a preliminary objection to the defective preliminary objection. See Duquesne Slag Products Co. v. Lench, 490 Pa. 102, 415 A.2d 53 (1980); Rufo v. Bastian-Blessing Co., 417 Pa. 107, 207 A.2d 823 (1965); Samuels v. Hendricks, supra; National Recovery Systems v. Frebraro, 287 Pa.Super. 442, 430 A.2d 686 (1981). We therefore find that the trial court in this case properly considered on their merits the preliminary objections of Mr. Gruenwald and Mr. Baus.

On the merits, moreover, we agree with the court that the Clays failed to state causes of action against Mr. Gruenwald and Mr. Baus for breach of contract and intentional infliction of emotional distress. In reviewing the complaint, we have regarded all well-pleaded facts as true and have given the Clays the benefit of all favorable inferences that we would fairly deduce from these facts. See Mazzagatti v. Everingham, 512 Pa. 266, 516 A.2d 672 (1986); Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979). These facts, however, would not entitle the Clays to judicial relief even if true.

In support of their breach of contract claim, the Clays alleged that Advanced Computer hired them “on a regular full time basis for the purpose of long-term employment and career advancement.” The Clays also allege that they “accepted the positions offered” and “ceased ... looking for other gainful employment” in reliance upon “oral statements of the Defendant corporation.” More specifically, they claimed that several months after they began working for Advanced Computer they informed Mr. Gruenwald of their plan to purchase a new home. Mr. Gruenwald, according to the Clays, not only encouraged the purchase but represented that “there were no problems with job security.” The Clays insist that these facts are sufficient to show an “implied in fact” employment contract. They apparently believe that this “contract” overcomes the presumption of at-will employment. We disagree.

Pennsylvania courts have long recognized the rule that an employer may discharge his or her employees at any time for any or no reason, absent a statutory or contractual provision to the contrary. See Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974); Henry v. Pittsburgh & Lake Erie Railroad Co., 139 Pa. 289, 21 A. 157 (1891); Veno v. Meredith, 357 Pa.Super. 85, 515 A.2d 571 (1986); Martin v. Capital Cities Media, Inc., 354 Pa.Super 199, 511 A.2d 830 (1986); Darlington v. General Electric, 350 Pa.Super. 183, 504 A.2d 306 (1986); Banas v. Matthews Int’l Corp., 348 Pa.Super. 464, 502 A.2d 637 (1985) (en banc). The so-called “at-will rule” reflects the belief that the intimacy of the master-servant relationship and the need for managerial discretion defy judicial scrutiny. See Veno v. Meredith, supra; Darlington v. General Electric, supra. Although we have questioned the viability of this belief given the more regulated environment of modern employment relationships, we have repeatedly reaffirmed the at-will rule in recent years. See Darlington v. General Electric, supra; Banas v. Matthews Int’l Corp., supra. The rule has become so thoroughly woven into the fabric of our law and our commerce that only a legislative mandate will completely abolish it. See Darlington, supra.

Nevertheless, as with any hoary principle of law, the at-will rule has spawned judicial exceptions. The discharged employee can now seek relief through an action in tort for wrongful discharge. A discharge is “wrongful” when it transgresses a clearly-articulable public policy or when the employer intends to harm the employee. See Geary v. United States Steel Corp., supra; Tourville v. Inter-Ocean Ins. Co., supra. In addition to the wrongful discharge action, the employee can, as always, defeat the at-will presumption by establishing that he or she contracted for an employment other than one terminable at will. Courts in our sister states increasingly have recognized that this kind of contract can arise from such sources as employee handbooks. See e.g., Woolley v. Hoffman-LaRoche Inc., 99 N.J. 284, 491 A.2d 1257 (1985); Weiner v. McGraw-Hill Inc., 57 N.Y.2d 458, 443 N.E.2d 441, 457 457 N.Y.S.2d 193 (1982). See also Banas v. Matthews Int’l Corp., supra, 348 Pa.Superior Ct. at 502-03, 502 A.2d at 657 (Beck, J. concurring and dissenting). This court, however, has repeatedly refused to recognize contractual modification of the at-will rule absent a clear expression of the parties’ intent. See Veno v. Meredith, supra; Martin v. Capital Cities Media, Inc., supra; Darlington v. General Electric, supra. The need for clarity is not unique to at-will employment cases. A party who wishes to enforce a contract must plead every element of that contract specifically, and clarity is particularly important when the alleged contract is oral. See Snaith v. Snaith, 282 Pa.Super. 450, 422 A.2d 1379 (1980). We cannot give legal significance to vague promises or to statements that reflect only the aspirations or hopes of the employer, whether written or spoken. The ordinary language of friendship and collegiality should not usually bind the speaker or writer as an enforceable obligation. In this case, none of the words or actions that the Clays attribute to their former employer even approach a clear impression of intent to contract away the at-will rule.

The recent decision of this court in Veno v. Meredith, supra, guides our disposition here. In Veno, a discharged employee had attempted to establish at trial that he and his former employer had contracted for an employment of definite duration. We outlined the employee’s case as follows:

In April, 1973, when appellant and his wife purchased a home, his employer, Mr. Meredith, co-signed both the disclosure statement and demand note in the sum of $5,400.00. Appellant further testified that Mr. Meredith said to him, “We’re both the same age, we’re both going to retire together, we’re not making a lot now, but we’ll make it later on. I want you to raise your children here. I want them to go to the school. I want to retire together.” Moreover, appellant turned down other job opportunities throughout his employment including one from his former employer — an offer he made known to Mr. Meredith.

Veno, supra, 357 Pa.Superior Ct. at 100, 515 A.2d at 579. We concluded that the statements of the employer were “broad,” “vague” and “aspirational.” They did not suggest “that the parties contemplated a definite duration for the employment.” Id. Certainly the same is true of the very similar statements that Mr. Gruenwald presumably made on behalf of Advanced Computer in this case. Moreover, in Veno, we declined to give contractual effect to the employee’s refusal of “other job opportunities.” Id., 357 Pa.Superior Ct. at 101, 515 A.2d at 580. We recognized that when an employee furnishes sufficient “additional consideration” beyond that which the parties contemplated in their employment agreement, the employer cannot discharge the employee without “just cause.” Id. See also Lubrecht v. Laurel Stripping Co., 387 Pa. 393, 127 A.2d 687 (1956); Darlington v. General Electric, supra. We also recognized, however, that this kind of “additional consideration” must either confer a “substantial benefit” on the employer or burden the employee with a “substantial hardship.” Veno, supra, 357 Pa.Superior Ct. at 101, 515 A.2d at 580 (quoting Darlington, supra at 201, 504 A.2d at 315). Neither the employee in Veno nor the Clays in the present case met this standard. Purchasing a new home and foregoing other employment opportunities are detriments that “all manner of salaried professionals” incur in reliance upon their employment. Id., 357 Pa.Superior Ct. at 102, 515 A.2d at 580. The facts alleged by the Clays simply do not suggest that they “brought to the employment so substantial a benefit, or incurred so detrimental a hardship in taking the job, that [they] should be accorded treatment any different from the typical at-will employee.” Id.

Even if the Clays somehow did plead the necessary elements to prove a contract of definite duration, they have failed to allege any facts that would render either Mr. Gruenwald or Mr. Baus liable for breach. In fact, the complaint indicates that the Clays “were hired by the Defendant corporation.” It also indicates that the Clays relied upon representations of “the Defendant corporation” when they “ceased looking for other gainful employment” and that they informed “the corporation,” through its president Mr. Gruenwald, of their intent to buy a new home. The Clays nowhere allege that either Mr. Gruenwald or Mr. Baus was party to the employment agreement between the Clays and Advanced Computer. If neither Mr. Gruenwald nor Mr. Baus entered into the contract with the Clays, they could not have breached that contract.

Just as the breach of contract claims against Mr. Gruenwald and Mr. Baus must fail, so too must the intentional infliction of emotional distress claim fail. The Clays alleged in their complaint that Mr. Baus had attempted to have “private conversations” with Mary Clay during work hours and that these attempts were “sexually suggestive.” They also alleged that Mr. Baus had given Mary Clay “pornographic” and “sexually explicit” gifts on two occasions. Furthermore, when Mary Clay complained to Mr. Gruenwald on this behavior, Mr. Gruenwald urged her to “be nice” to Mr. Baus. The allegations suggest that because Mary Clay refused Mr. Baus’ sexual advances, Mr. Baus conspired with Mr. Gruenwald to discharge both Jeffrey and Mary Clay from their employment with Advanced Computer. Taking all well-pleaded facts in the complaint as true, we certainly agree that the conduct attributed to Mr. Gruenwald and Mr. Baus is obnoxious and reprehensible. It might even have supported a complaint before the Pennsylvania Human Relations Commission. It does not, however, amount to intentional infliction of emotional distress.

The Restatement (Second) of Torts § 46(1) (1965) imposes liability against “[o]ne who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another.” This provision reflects the law in Pennsylvania. See D’Ambrosio v. Pennsylvania National Mut. Cas. Ins. Co., 494 Pa. 501, 431 A.2d 966 (1981); Reimer v. Tien, 356 Pa.Super. 192, 514 A.2d 566 (1986); Jones v. Nissenbaum, Rudolph & Seidner, 244 Pa.Super. 377, 368 A.2d 770 (1976). Comment (d) under Section 46 describes the type of conduct that crosses the “extreme and outrageous” threshold:

Extreme and outrageous conduct. The cases thus far decided have found liability only where the defendant’s conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!”

See also D’Ambrosio v. Pennsylvania National Mut. Cas. Ins. Co., supra; Lazor v. Milne, 346 Pa.Super. 177, 499 A.2d 369 (1985). This standard plainly anticipates outrages far beyond the indignities and insensitivity that too often taint our daily lives. The Clays have failed to allege such extreme conduct.

We do not underestimate the seriousness of sexual harassment in the workplace. Nor do we exclude the possibility that, under different circumstances, sexual harassment could support a claim for intentional infliction of emotional distress. Both Congress and the General Assembly have recognized that invidious discrimination does not belong in the workplace. Although we agree, we cannot find that the conduct attributed to Mr. Gruenwald and Mr. Baus was “atrocious and utterly intolerable in a civilized community.”

The Clays suggest, however, that the trial court acted precipitously in concluding as a matter of law that the allegations in the complaint were inadequate. We disagree. The court, not the fact finder, must determine in the first instance “whether the actor’s conduct can reasonably be regarded as so extreme and outrageous as to permit recovery.” Reimer v. Tien, supra 356 Pa.Super. at 200, 514 A.2d 569. See also Dawson v. Zayre Dept. Stores, 346 Pa.Super. 357, 499 A.2d 648 (1985); Lazor v. Milne, supra; Restatement (Second) of Torts § 46, comment (b).

For the foregoing reasons, we reverse that portion of the trial court’s order which dismissed, for lack of subject matter jurisdiction, the claims against Bjorn Gruenwald and Richard Baus for wrongful discharge. We affirm that portion which dismissed the claims for breach of contract and intentional infliction of emotional distress.

Order reversed in part and affirmed in part.

TAMILIA, J., files a concurring and dissenting opinion in which CAVANAUGH, J., joins.

TAMILIA, Judge,

concurring and dissenting:

I write separately as, while I concur fully with the majority that appellants cannot prevail on the merits in an action for wrongful discharge, I respectfully disagree with the majority view that the Pennsylvania Human Relations Act (P.H.R.A.), 43 P.S. 951 et seq. and Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. do not provide the exclusive remedy for wrongful discharge based on sexual discrimination in the work place, even when couched as a tort claim.

From the appellants’ reasoning, it is evident that the only actionable complaint available to them has to do with sexual harassment in the work place. The majority has concluded that a wrongful discharge action may be pursued, despite the fact that sexual discrimination is one of the categories covered by the P.H.R.A. In its analysis of the Act, in a literal reading of section 962(b), the majority focuses on the words “when invoked, be exclusive and the final determination ...”, the sentence, “If such [sic] complainant institutes any action based on such grievance [sic] without resorting to the procedure provided in this act, he [sic] may not subsequently resort to the procedure herein ” ... and in subsection 962(c), “if a complaint [sic] invokes the procedures set forth in this act, that individual’s right of action in the courts of the Commonwealth shall not be foreclosed.” Majority Slip Op. at 1380 (emphasis added in majority Opinion). In doing so, it concludes the P.H.R.A. did not provide for exclusivity of remedy in sexual discrimination cases.

The majority cites to Daly v. School District of Darby Twp., 434 Pa. 286, 252 A.2d 638 (1969) in holding that a party can choose alternative remedies; additionally, “[o]nce the party elects his or her remedy, the chosen path becomes exclusive.” Majority Slip Op. at 1380 citing Fye v. Central Transportation Inc., 487 Pa. 137, 409 A.2d 2 (1979). In Daly, the appellant was not a party in the original decision by the School Board to resolve a racial discrimination matter and, therefore, her action to protect her constitutional rights denied by an action of the Board and the Human Relations Commission was not “invoked” within the meaning of section five. (Section 5 of the Human Relations Act as amended is 43 P.S. § 955.)

Reliance on Fye is equally dubious as that case held that once the P.H.R.A. proceeding was invoked, even when the party then withdrew the proceeding, she was prohibited from instituting a case in court. It went on to say in dicta that the General Assembly did not withdraw the other remedies that might be available depending upon the nature of the injury sustained.

Prior to 1974, a complainant invoking the procedure of this Act was barred from seeking any other remedy for redress of the asserted grievance, and this rule was without exception. By the 1974 amendment to section 12 of the Human Relations Act, a narrow exception was included in the rule of exclusivity. Section 12(c) provided that the rights of a complainant invoking the procedure under the P.H.R.A. would not be foreclosed from resort to the courts, “if within (1) year after filing of a complaint with the Commission, the Commission dismisses complaint or has not entered into a conciliation agreement to which the complainant is a party____” (Section 12(c) of the Human Relations Act as amended is 43 P.S. § 962(c).)

The reading I find most significant is that of Justice Nix in Fye, supra, 487 Pa. at 142, 409 A.2d at 5. In response to an argument that the statute should be broadly construed to minimize the exclusivity section, the Court said:

In response we note that this language appeared in the section [as to liberal construction] before there was an exception to the rule of exclusivity. A liberal construction for the accomplishment of the purposes of the act is not synonymous with a relaxation of the rule of exclusivity for the benefit of a complainant. It is clear from the legislation that the General Assembly was of the view that the procedures provided by the act represented the most effective approach to the problem of discrimination. Thus, the language relied upon by appellant cannot properly be construed as authorizing a broad reading of the exception to the rule of exclusivity.

Further, in commenting on the weight to be given the exclusivity section, Justice Nix stated:

Obviously, the rule of exclusivity was of high priority in the legislative scheme; as first promulgated, the act provided for no exception to the rule, after a number of years of experience the General Assembly was willing only to provide two carefully defined situations. This history provides no basis for a judicial finding of an implicit legislative intent to extend the expressly unambiguous perimeters of the terms of the 12(c) exceptions.

Id., 487 Pa. at 142, 409 A.2d at 5. It would appear that the Supreme Court was firm on exclusivity and, at worst, vague-as to the permissible suits outside the P.H.R.A.

The view proposed by the majority will open every discharge, where discrimination may be alleged, to court review on a wrongful discharge theory for rights which were created by the P.H.R.A. This will undermine the stated purpose of the act, present a flood of litigation and deny the administrative process which the legislature decided is the most effective means to deal with a social ill that permeates many aspects of our society.

I believe the trial court was correct in relying on Wolk v. Saks Fifth Ave., 728 F.2d 221 (3rd Cir.1984) which held that in each case of wrongful discharge based on violation of public policy, the .Pennsylvania courts failed to find a violation of public policy and, therefore, a cognizable common law remedy, where there existed some alternative form of relief. In Sola v. Lafayette College, 804 F.2d 40 (3rd Cir.1986), the third circuit, although cognizant of Fye, supra, opted for according respect for the administrative procedures established by the Pennsylvania legislature and refused to recognize a new cause of action designed to further Pennsylvania anti-discrimination policies. In Carney v. Pennsylvania Human Relation Commission, 45 Pa.Cmwlth. 10, 404 A.2d 760 (1979), the Commonwealth Court held the Act did not provide for alternative remedies but that the court, combined with the P.H.R.A., was the remedy and that the P.H.R.A. must be pursued as a condition prerequisite to an accrual of a right of action in the Pennsylvania courts. In Householder v. Kensington Mfg. Co., 360 Pa.Super. 290, 520 A.2d 461 (1987), this Court followed these precedents in holding that an action for wrongful discharge, based on discrimination of a handicapped person, was barred by the P.H.R.A.

In Daly, supra, the action was not “invoked” within the meaning of section five and, therefore, permissible. In this case, the action which the majority would permit is one created by section five (§ 955). It is clear, as pointed out in Fye, that the legislature intended to open the exclusivity aspect of the P.H.R.A. only to the degree necessary to avoid allowing an aggrieved to commence several different actions for relief. Obviously there are a number of ways a party may seek relief, including proceedings under the Federal Act of 1964, the Civil Rights Act, § 1983 and local Human Relations ordinances pursuant to section 962.1. It is even arguable that if the sexual harassment involved touching or exposure, civil assault or criminal charges could be filed and not be barred by exclusivity under the P.H.R.A.

The majority would find that while there is a right to bring an action for wrongful discharge, under these facts, the action for wrongful discharge cannot prevail, nor would the allegations support an action for “emotional distress”. All that remains is some form of sexual discrimination, which is a creation of the P.H.R.A. and, therefore, totally within the exclusivity clause of 962(b). The majority holding necessarily requires and permits alternative actions for sexual discrimination (and all other § 955 categories), so long as they are captioned wrongful discharge, to be brought either in the courts or before the Pennsylvania Human Relations Commission. The exceptions propounded to the P.H.R.A., in my view of the Act and the case law, never intended this to be the case. It must be remembered that the predecessor title to the P.H.R.A. was the Fair Labor Employment act, and its intent was to curtail discrimination in the work place. Since wrongful discharge in Pennsylvania is founded on breach of contract, and no remedy is available for discrimination outside of contract, where discrimination is the basis for termination outside of a contract, the sole remedy is under the P.H.R.A. Indeed the review of this case on the merits, by the majority, in view of the very stringent stand taken by our courts in wrongful discharge cases, would indicate a proceeding under the P.H.R.A., is the only effective proceeding.

Under these circumstances, upon remand, I am at a loss as to what the trial court may do other than to dismiss for failure to state a cause of action. Now that appellants cannot prevail under their wrongful discharge theory, they are also precluded from what might have been an effective action under the P.H.R.A. The powers given to the Human Relations Commission are broad enough to require reemployment, payment of back wages and other specifically tailored relief to deal with discrimination, when no relief would be available in a civil action. The expertise and investigative powers of the Commission provide a superior vehicle for ascertaining the validity of the claim and assuring that justice be done and preventing repetition of the wrongful behavior by the employer. I believe the majority has gone astray, and unless and until the Supreme Court holds otherwise, upon direct consideration of this issue, we should not reverse the precedent so well established.

CAVANAUGH, J., joins.

      . The preliminary objections also contained a motion that challenged the personal jurisdiction of the trial court over Mr. Baus. The reasons for this motion remain a mystery. The attorney who filed it had entered an appearance for Advanced Computer and Mr. Gruenwald only. The motion itself indicated that the attorney was acting "on behalf of Advanced Computer Application, Inc. and Bjorn J. Gruenwald.” Moreover, on October 3, 1985, a separate attorney entered an appearance for Mr. Baus. We find the motion particularly odd because the dismissal of Mr. Baus as a co-defendant in this case would only have sabotaged the defense of Advanced Computer and Mr. Gruenwald.

      . The trial court did not address the agency theory that Mr. Gruenwald offered in his preliminary objections. Nor did it address Mr. Baus’ allegations concerning service of process.

      . The Clays actually list seven issues in the “statement of questions involved" section of their brief. The "argument” section of their brief, however, consists of only one part. Pennsylvania Rule of Appellate Procedure 2119(a) requires the appellant to divide his or her argument “into as many parts as there are questions to be argued.” This is not the only rule that counsel for the appellants in this case has ignored. Appellants’ Brief also fails to conform to Pa.R.A.P. 124(a)(4), 2111(a)(5), 2116(a), 2118, 2119(c) and 2172(a)(4). We should not lightly countenance such flagrant disregard of our rules. This court can quash or dismiss an appeal if defects in the brief are “substantial.” See Pa.R.A.P. 2101. Although the numerous defects in the Clays’ brief have impeded review of this appeal, the interests of justice and judicial economy weigh against summary dismissal. A review of the "argument" section of the brief convinces us, however, that the Clays have raised four issues, not seven.

      . Pennsylvania courts have recognized a cause of action in tort for wrongful discharge in two kinds of cases: (1) when the discharge contravenes some clearly articulable "public policy" and (2) when the discharge was motivated by a specific intent to harm the employee. See Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974); Gillespie v. St. Joseph’s University, 355 Pa.Super. 362, 513 A.2d 471 (1986); Tourville v. Inter-Ocean Ins. Co., 353 Pa.Super. 53, 508 A.2d 1263 (1986); McCartney v. Meadowview Manor, Inc., 353 Pa.Super. 34, 508 A.2d 1254 (1968); Darlington v. General Electric, 350 Pa.Super. 183, 504 A.2d 306 (1986). The courts have yet to recognize, however, a cause of action in tort for breach of an "implied covenant of good faith and fair dealing.” The term “implied covenant” suggests that the theory would better support a cause of action on contract. In fact, the phrase “good faith and fair dealing" derives from the Restatement (Second) of Contracts § 205 (1981) and Section 1-203 of the Uniform Commercial Code, 13 Pa.C.S.A. § 1203. Nonetheless both the Clays and the trial court appear to have treated this “breach" as a theory in support of the wrongful discharge claim. We offer no opinion here on the merits of the wrongful discharge claims because the trial court never reached the issue.

      . The trial court relied upon Wolk v. Saks Fifth Avenue, 728 F.2d 221 (3rd Cir.1984). A federal court’s interpretation of state law, however, does not bind this court. See Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979) (“state courts are the principal expositors of state law”). Moreover, Wolk lacks even persuasive authority. The Wolk court ignored the reasoning of our supreme court in Fye v. Central Transportation Inc., supra, and looked instead to one of its own cases to guide its interpretation of the Human Relations Act. We believe the court would have reached a different result had it applied the Fye case.

        . Householder also stands for the proposition that even if the Human Relations Act does not afford the exclusive remedy, Pennsylvania Courts do not recognize a cause of action for wrongful discharge based on handicap discrimination.

      . A demurrer simply challenges the sufficiency of the complaint to state a cause of action against the demurring party. See Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979); Cummins v. Firestone Tire & Rubber Co., 344 Pa.Super. 9, 495 A.2d 963 (1985). It does not question the authority of the court to hear and decide the controversy and therefore is not a matter that the court should raise sua sponte.

      . We need not consider whether the Clays’ allegations would support a claim for wrongful discharge. As we have indicated, the trial court did not reach wrongful discharge on the merits because it believed that it lacked subject matter jurisdiction over such claims.


text:
    536 A.2d 1388
    Margaret McLAIN, as Executrix of the Estate of John T. McLain, Deceased, and Margaret McLain, Individually, and Douglas McLain, Appellants, v. ARNEYTOWN TRUCKING CO., INC. and Robert J. Houghton and Cannel Trucking Co. and George Shifflett, Appellees.
    Superior Court of Pennsylvania.
    Argued Oct. 6, 1987.
    Filed Feb. 4, 1988.

      John Baldante, Philadelphia, for appellants.
    Susan E. Satkowski, Philadelphia, for Arneytown, appellees.
    Before CIRILLO, President Judge, and WIEAND and OLSZEWSKI, JJ.
   WIEAND, Judge:

The principal issue in this appeal is whether improper venue can be waived by one defendant in such a manner as to preclude a second defendant from interposing a successful objection to such venue. The trial court rejected such an argument, sustained preliminary objections to venue by one defendant, and transferred the action to the county in which the cause of action had arisen. We affirm.

On May 11, 1984, at or about 3:00 a.m., two tractor-trailer units collided on the Pennsylvania Turnpike in Lancaster County. Moments later, a vehicle driven by John McLain ran into one of the units involved in the prior collision. John McLain was killed and Douglas McLain, a passenger, was injured. Margaret McLain, the executrix of the estate of John McLain, deceased, and Douglas McLain filed a civil action in Philadelphia. Named as defendants were Arneytown Trucking, Inc. and Cannel Trucking Co., the owners of the units, and Robert J. Houghton and George Shifflett, the drivers of the units. The complaint alleged that Arneytown Trucking was a New Jersey corporation with offices in Trenton, New Jersey; Cannel Trucking Company was an Ohio corporation, located in Youngstown, Ohio; Houghton was a resident of Barrington, New Jersey; and Shifflett was a resident of Somerset County, Pennsylvania. The plaintiffs were residents of Ocean County, New Jersey.

Arneytown Trucking and Houghton filed preliminary objections challenging venue in Philadelphia. They also requested a transfer of venue to Lancaster County on grounds that it would be more convenient to parties and witnesses if the case were tried in Lancaster County. Cannel Trucking and Shifflett, however, filed an answer containing new matter; they did not file preliminary objections challenging venue.

Depositions thereafter were taken and disclosed that Arneytown Trucking did not maintain an office or telephone in Philadelphia, did not have employees in Philadelphia, did not advertise or have customers in Philadelphia, and did not contract with businesses in Philadelphia. Its trucks, however, passed through Philadelphia and sporadically made pickups in Philadelphia. Only one percent of its truck mileage involved travel through Philadelphia. Other depositions disclosed that Cannel Trucking also did not maintain offices and did not have employees, customers, accounts, or clients in Philadelphia. Based on the foregoing facts, the trial court sustained the preliminary objections filed by Arneytown Trucking and Houghton and transferred the matter to Lancaster County. Plaintiffs appealed.

With respect to an action against a corporation, Pa.R.C.P. 2179(a) permits the action to “be brought in and only in

(1) the county where its registered office or principal place of business is located;
(2) a county where it regularly conducts business;
(3) the county where the cause of action arose; or
(4) a county where a transaction or occurrence took place out of which the cause of action arose.

With respect to the bringing of an action against an individual, Pa.R.C.P. 1006(a) provides that such an action may be brought “in and only in a county in which he may be served or in which the cause of action arose or where a transaction or occurrence took place out of which the cause of action arose or in any other county authorized by law.” In the instant case, our attention must also be focused on Pa.R. C.P. 1006(c), which provides as follows:

(c) An action to enforce a joint or joint and several liability against two or more defendants, except actions in which the Commonwealth is a party defendant, may be brought against all defendants in any county in which the venue may be laid against any one of the defendants under the general rules of Subdivisions (a) or (b).

It is apparent from the foregoing that neither Houghton nor Shifflett could properly have been sued in Philadelphia. Houghton was a resident of New Jersey, and Shifflett was a resident of Somerset County, Pennsylvania. Both of these defendants, however, could properly have been sued in Lancaster County, where the accident occurred.

The trial court found also that neither Arneytown Trucking nor Cannel Trucking regularly conducted business in Philadelphia. The evidence supports this finding. Therefore, the trial court could properly conclude, as it did, that venue could not properly be laid against either corporate defendant in Philadelphia. Because the cause of action arose in Lancaster County, however, both trucking defendants could have been sued in Lancaster County.

Appellants’ principal argument is that Cannel Trucking and Shifflett did not object to being sued in Philadelphia and, therefore, waived objection to venue in that county. Because this was sufficient to enable the court in Philadelphia to hear the case, appellants contend, the rule in Pa.R. C.P. 1006(c) precludes Arneytown Trucking and Houghton from objecting to venue in Philadelphia. We cannot accept this argument.

It is correct, as appellants argue, that a defendant’s right to object to venue is a personal privilege and may be waived so long as the court has jurisdiction to hear the matter. See: 39 P.L.E. Venue § 21. See also: Wolf v. Weymers, 285 Pa.Super. 361, 367, 427 A.2d 678, 680-681 (1981); Hohlstein v. Hohlstein, 223 Pa.Super. 348, 353, 296 A.2d 886, 889 (1972); Shulman v. Wynnewood Co., 191 Pa.Super. 66, 68-69, 155 A.2d 392, 393-394 (1959). Thus, Pa.R.C.P. 1006(e) provides that “[ijmproper venue shall be raised by preliminary objection and if not so raised shall be waived.” See also: Triffin v. Turner, 348 Pa.Super. 6, 8, 501 A.2d 271, 272 (1985); Gogets v. Gogets, 267 Pa.Super. 458, 460, 406 A.2d 1132, 1133 (1979). Cannel Trucking and Shifflett, by failing to file preliminary objections and by filing instead an answer on the merits, waived any objection which they might otherwise have had to venue.

Whether such a waiver would bind other defendants and, by virtue of Pa.R.C.P. 1006(c), preclude other defendants from raising questions of improper venue has not previously been addressed by the appellate courts of this Commonwealth. The Court of Common Pleas of Bucks County, however, has rejected an argument similar to that advanced by appellants. In Lane v. Continental Traveller, Inc., 69 Pa.D. & C.2d 523 (Bucks Co. 1975), the plaintiffs had commenced an action to recover for personal injuries against two defendants. Although venue was improper in Bucks County as to both defendants, neither defendant objected and thereby waived any challenge to venue. When one of the defendants joined additional defendants, however, one of the additional defendants objected and filed preliminary objections. The joining defendant argued “that since neither original defendant had raised the issue of venue, any impropriety as to venue [had been] waived----” Id. at 525. The court held that the additional defendant was not bound by the waiver of an adverse party, id. at 525, and transferred the entire action to Berks County, where the cause of action had arisen.

The courts of other jurisdictions have achieved similar results. Thus, in Hines v. Dresser Industries, Inc., 137 Ill.App.3d 7, 91 Ill.Dec. 842, 484 N.E.2d 401 (1985), where the plaintiff had commenced an action against two defendants in an improper county, one defendant waived any objection to the improper venue. This caused the trial court to hold that “since it had acquired ‘jurisdiction’ over one of the two defendants because of a waiver of objection to an improper venue, the second defendant was precluded from objecting to an improper venue as to himself.” Id. at 8, 91 Ill.Dec. at 844, 484 N.E.2d at 403. On appeal, the trial court was reversed. The appellate court held that

waiver of objection to an improper venue by one defendant will not preclude an objection to improper venue by a codefendant. The waiver of objection to improper venue by Dresser Industries did not serve to transform the improperly laid venue to a properly laid venue. Waiver of venue is personal to a defendant, and he may assert or waive this personal privilege.

Id. at 11, 91 Ill.Dec. 846, 484 N.E.2d at 405. Similarly, in City of Cleveland v. Cheatham, 285 P.2d 205 (Okla.1955), the plaintiff had commenced an action against an individual defendant and a corporate defendant in an improper county. The individual defendant waived any objection to venue, but the corporate defendant tendered an objection which the trial court overruled. The Supreme Court of Oklahoma issued a writ of prohibition preventing the trial court from proceeding further against the corporate defendant. With respect to the waiver by the individual defendant, the court said:

The fact that one of several defendants submits to the jurisdiction of the court does not change the venue of the cause of action. It is merely a waiver of that defendant’s personal right to demand a trial of the case in the county where the venue is fixed by statute____ When the case was filed in Creek County, each defendant had a right to object, that right being personal to the respective defendants. When Beale appeared generally without first objecting to jurisdiction of the court because of venue, he waived his right but that could have no effect on the co-defendant, the City of Pawnee. That entry of appearance did not change the venue as fixed by statute. The municipality had the right to object which it did in proper manner at all stages possible. Its motion should have been sustained.

Id. at 207. See also: O’Brien v. Weber, 137 F.Supp. 684 (W.D.Pa.1955) (waiver of improper venue does not deprive other defendants of right to object to venue); Hodges v. General Shale Products Corp., 346 So.2d 416 (Ala.1977) (transfer of entire action is preferred where venue is improper, notwithstanding waiver by one defendant); Marshall v. Benedict, 161 Cal.App.2d 284, 326 P.2d 516 (1958) (defendant cannot be denied right to change of venue by waiver of any other defendant); Gardner v. International Harvester Co., 113 Ill.2d 535, 101 Ill.Dec. 842, 499 N.E.2d 430 (1986) (waiver of improper venue by one defendant does not necessarily bind other defendants); Simmons v. Hope Contractors, Inc., 447 So.2d 638 (La.Ct.App.1984) (it is error to force party to litigate in improper venue because of waiver of rights by another party); Laster v. Gottschalk, 42 Mich.App. 596, 202 N.W.2d 562 (1972) (waiver of improper venue by original defendants is not binding on additional defendant).

Appellants’ reliance upon this Court’s decision in Ro-Med Construction Co., Inc. v. Clyde M. Bartley Co., Inc., 239 Pa.Super. 311, 361 A.2d 808 (1976), is misplaced. In that case, plaintiff had commenced an action in Lawrence County against an individual defendant and a corporate defendant. The corporate defendant objected to venue, but the objection was overruled. On appeal, this Court affirmed. The Court said that it assumed venue to be proper in the case of the individual defendant who had filed no preliminary objections and that proper venue as to the individual defendant would support the action in Lawrence County. However, the complaint had alleged that the individual defendant was a resident of Lawrence County. This fact, coupled with the absence of objections, permitted the Court to assume that venue was proper with respect to the individual defendant. Therefore, the decision does not support appellants’ position in this case, where, as we have seen, venue in Philadelphia was improper as to all defendants.

We conclude, therefore, that it would have been error for the trial court to force Arneytown Trucking and Houghton to litigate this action in Philadelphia merely because Cannel Trucking and Shifflett, who were adverse parties, failed to object to the improper venue. That waiver did not have the effect of establishing proper venue for all remaining defendants. To hold otherwise would be to permit one defendant to unilaterally deprive an adverse party of a personal right to object to an improper forum.

The trial court properly transferred venue to Lancaster County where the accident occurred and the cause of action arose.

Order affirmed.

      . Because Shifflett could have been served in Somerset County, venue in this action could also have been laid in that county.