author: FORD ELLIOTT, Judge: DEL SOLE, Judge,

text:
    631 A.2d 1305
    COMMONWEALTH of Pennsylvania, Appellant, v. Roosevelt E. McPHAIL.
    Superior Court of Pennsylvania.
    Argued Feb. 24, 1993.
    Filed Aug. 20, 1993.
    Reargument Denied Oct. 26, 1993.

      Kevin F. McCarthy, Asst. Dist. Atty., Pittsburgh, for Com., appellant.
    Shelley Stark, Public Defender, Pittsburgh, for appellee.
    Before DEL SOLE, FORD ELLIOTT and CERCONE, JJ.
   FORD ELLIOTT, Judge:

This is an appeal from the order of January 30, 1992, entered in the Court of Common Pleas, Allegheny County, dismissing three drug charges arising from an alleged cocaine sale to an undercover narcotics officer in Allegheny County. We reverse the trial court order dismissing the instant charges pursuant to 18 Pa.C.S.A. § 110.

A review of the record and history of the case is necessary. In May of 1990, Trooper Donald Alston, an undercover narcotics agent for the Pennsylvania State Police, was introduced to appellee by a confidential informant. (Notes of testimony, 1/3/92 at 31.) Near the end of May, Officer Alston bought cocaine from appellant in Washington County during a controlled drug deal. The confidential informant who had introduced the officer to appellee was present during the first buy. (Notes of testimony, 1/3/92 at 31-32.) The second buy occurred “a day or so prior to June 27.” The second drug transaction also took place solely in Washington County and involved cocaine. (Notes of testimony, 1/3/92 at 34, 47.) Because Officer Alston wanted to target the bigger dealers, he inquired, during the course of this second buy, as to how he could obtain a larger amount of cocaine. Appellee informed the officer that the desired amount of cocaine was not available in Washington County and that they would have to go to Clairton, in Allegheny County, to get that amount of cocaine. They completed the second buy and agreed to go to Clairton the following day, June 27, 1990. (Notes of testimony, 1/3/92 at 15-16, 47-48.)

On June 27th Officer Alston, appellee, the confidential informant, and another individual, Anthony Illessee, traveled in a car to Clairton in Allegheny County. During this third drug deal, the possession, sale, and subsequent delivery to Officer Alston occurred only in Allegheny County. The exchange of cocaine occurred outside of an apartment building in Clairton. Officer Alston purchased 4.33 grams of cocaine from appellee for $500. (Notes of testimony, 1/3/92 at 11, 16-18, 30, 47, 51.) See also Affidavit for Criminal Complaint, 10/4/90.

Subsequently, appellee was charged and arrested for delivery of a controlled substance and criminal conspiracy for the two violations that occurred in Washington County. When he was in jail for the Washington County offenses, he was then arrested and charged for the alleged crimes that arose in Allegheny County as a result of the third buy in Clairton. These charges (at issue in the case at bar) include one count each of possession of a controlled substance, possession with intent to deliver a controlled substance, and delivery of a controlled substance. See Criminal Complaint. Appellee pleaded guilty to the Washington County charges' and was sentenced. (Notes of testimony, 1/3/92 at 24.)

On September 6, 1991, appellee filed an omnibus pre-trial motion seeking to quash the instant charges on the basis that these charges were barred by the double jeopardy clauses of both the state and federal constitutions and 18 Pa.C.S.A. §§ 109 and 110. The trial court held a hearing and reviewed briefs on appellee’s motion to quash and issued an order dismissing the instant charges pursuant to 18 Pa.C.S. § 110. The order granting the motion to quash is now before us for disposition. We reverse.

Initially, we note that in reviewing the trial court’s ruling that the instant prosecution was barred by § 110, this court must determine whether the record supports the factual findings of the court, and the legitimacy of the inferences and legal conclusions drawn therefrom. Commonwealth v. Savage, 403 Pa.Super. 446, 589 A.2d 696 (1991), appeal denied, 529 Pa. 633, 600 A.2d 953 (1991). In order to review the trial court’s order, we must first analyze the statute in question. Title 18 Pa.C.S.A. § 110 provides in pertinent part: based on different facts, it is barred by such former prosecution under the following circumstances:

When prosecution barred by former prosecution for different offense:
Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is

(1) The former prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title (relating to when prosecution barred by former prosecution for the same offense) and the subsequent prosecution is for:

(i) any offense of which the defendant could have been convicted on the first prosecution;
(ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and was within the jurisdiction of a single cou,rt unless the court ordered a separate trial of the charge of such offense; ----

18 Pa.C.S.A. § 110 (emphasis added).

This rule of compulsory joinder is intended to protect the accused from governmental harassment and also, as a matter of judicial administration and economy, to ensure finality without unduly burdening the judicial process by repetitious litigation. Commonwealth v. Starr, 416 Pa.Super. 250, 610 A.2d 1066 (1992), appeal granted, 533 Pa. 633, 621 A.2d 580 (1993), quoting Commonwealth v. Walton, 405 Pa.Super. 281, 285, 592 A.2d 335, 337 (1991).

For the purposes of this case, it is critical to recognize that § 110(l)(ii) requires a four-part inquiry. First, we must determine whether the Washington County prosecution resulted in an acquittal or conviction. Next, it is necessary to establish that the instant prosecution was based upon the same conduct or arose from the same criminal episode as the Washington County offenses. In addition, the prosecutor must have been aware of the later charges before the commencement of the first trial. Finally, it is also essential to establish that the instant prosecution and the former prosecution were within the jurisdiction of a single court. See Commonwealth v. Nichelson, 294 Pa.Super. 438, 445, 440 A.2d 545, 549 (1982), quoting Commonwealth v. Harris, 275 Pa.Super. 18, 23-24, 418 A.2d 589, 592 (1980) (statutory qualification of § 110 is that first offense and subsequent offense must have been within jurisdiction of a single court).

This appeal turns on the last phase of the analysis. Although we concede that the other requirements of § 110 were satisfied, the final requirement was not satisfied because Allegheny County, and not Washington County, had jurisdiction over the drug transaction in Clairton. Therefore the first offenses in Washington County and the subsequent offense in Allegheny County were not within the jurisdiction of a single court. As a result, § 110 should not bar the instant prosecution.

A review of the trial court opinion and the briefs of the parties suggests that there was a good deal of confusion regarding this issue. Hence, we believe that a precise reading of the statute and the relevant case law is necessary to resolve the § 110 issue where two different counties are involved. Initially, we note that there is no doubt that the former prosecution in Washington County resulted in a guilty plea to conspiracy as to the first drug sale in Washington County. The scope of the conspiracy did not extend to any offenses beyond the first offense in Washington County. In addition, appellee also pleaded guilty to a delivery charge as to the second drug transaction which occurred on approximately June 26th in Washington County. It is clear that a guilty plea constitutes a conviction for the purposes of precluding further prosecution pursuant to 18 Pa.C.S.A § 110. Commonwealth v. Caden, 326 Pa.Super. 192, 473 A.2d 1047 (1984). As a result, appellee satisfied the first part of the analysis.

We also acknowledge that the second and third prongs of the test were established as well. The prosecutor knew about the Allegheny County charges before accepting the guilty plea as to the Washington County charges. Appellee was charged with the former while he was in jail on the latter, and the parties have not denied this knowledge. Also, we recognize that the third drug transaction, which occurred in Allegheny County, arose from the same criminal episode as the earlier transactions in Washington County. In arriving at this conclusion we have considered: (1) the temporal sequence of events; (2) the logical relationship between the acts; and (3) whether they share common issues of law and fact. Two separate offenses may constitute the same criminal episode if one offense is a necessary step toward the accomplishment of a given criminal objective or if additional offenses occur because of an attempt to secure the benefit of a previous offense or conceal its commission. Starr, supra, 416 Pa.Super. at 256, 610 A.2d at 1068.

The decision in Commonwealth v. Hude, 500 Pa. 482, 458 A.2d 177 (1983), further explains our conclusion. In Rude, supra, the defendant was arrested and charged with twenty counts of possession and delivery of marijuana and one count of corruption of a minor. The charges arose out of a series of sales to the same individual which were alleged to have occurred on twenty separate days within a two and one-half month time period. Nine of the possession and delivery charges were dismissed prior to trial. The Commonwealth brought the defendant to trial on three of the remaining possession and delivery charges and on the corruption charge. He was acquitted of these charges. Subsequent to the acquittal of the above charges, the Commonwealth brought appellant to trial on the remaining eight possession and delivery charges.

The supreme court held that the drug charges brought against the defendant after his initial acquittal arose from the same criminal episode since they were so logically interrelated that they essentially involved the same issues of law and fact. As a result, the court concluded that § 110 was violated by the second drug trial and the defendant was therefore entitled to relief. See also Commonwealth v. Kaminski, 342 Pa.Super. 37, 492 A.2d 51 (1985) (sales arose from the same criminal episode where they involved the same type of contraband, they were made to a single individual and the elapsed time between the sales was three days).

A subsequent and more recent decision of this court, Starr, supra, is distinguished. The defendant in Starr sold 25 grams of marijuana to one undercover agent for $175 on January 24, 1989. Approximately two weeks later, the defendant sold 26.7 grams of marijuana to a different undercover officer for $180. The court concluded that § 110 did not bar the trial on the second set of charges. According to the court, the tangential relationship between the transactions charged in each information was not the type of logical relationship that would require a single trial. The transactions charged in each information differed as to participants, locations, timing, quantity, and cost; and there was no evidence of a continuing undercover investigation by one team of prosecutorial agents.

The Hude and Kaminski decisions, rather than Starr, supra, control the instant case. The third sale in Clairton arose from the same criminal episode as the two earlier sales in Washington County. The sales were logically and temporally related. They were made to the same undercover officer; involved the same type of drug — cocaine; occurred in the presence and with the assistance of the same confidential informant; and transpired over a one-month time period. The second sale in Washington County occurred approximately a day before the third sale in Allegheny County. There is no doubt that Hude and Kaminski control the simple question as to whether the Allegheny County drug sale and the Washington County drug sales arose from the same criminal episode. We acknowledge that they most certainly did arise from a common criminal episode.

However, appellee erred because he ended his analysis at this point. In a multi-county scenario, the statute absolutely requires a final step. We must also evaluate whether the first prosecution and the subsequent prosecution were within the jurisdiction of a single court. The strong relationship of the subsequent prosecution and the former prosecution does not somehow negate the final part of the analysis. Section 110(l)(ii) specifically requires the proponent to demonstrate fulfillment of all of the preconditions, and unless all four are established there is no bar to the later prosecution.

Hence, the critical question is whether the three Allegheny County charges: possession of a controlled substance, possession with intent to deliver and delivery of a controlled substance and the former charges in Washington County, namely, delivery and conspiracy, were “within the jurisdiction of a single court” for the purposes of § 110(l)(ii). In order to answer this question, we must first determine where the locus of the three charges in Allegheny County was situated.

It is a fundamental precept of law that “ ‘the court has no jurisdiction of the offense unless it occurred within the county of trial ... ’ ” Caden, supra, 326 Pa.Super. at 198, 473 A.2d at 1049, quoting Commonwealth v. Mull, 316 Pa. 424, 426, 175 A. 418, 419 (1934). The locus of a crime is always in issue, because the court has no jurisdiction over an offense unless it occurred within the county of trial or unless, by some statute, it need not. Commonwealth ex rel. Chatary v. Nailon, 416 Pa. 280, 283, 206 A.2d 43, 45 (1965). For a county to take jurisdiction over a criminal case, some overt act involved in that crime must have occurred within that county. Commonwealth v. Boyle, 516 Pa. 105, 532 A.2d 306 (1987). Moreover, in order to base jurisdiction on an overt act, the act must have been essential to the crime, an act which is merely incidental to the crime is not sufficient. Id. at 112-113, 532 A.2d at 309-310. We must also look to the nature of the offense and the elements thereof to determine whether the crime was sufficiently related to the locus where the defendant is being prosecuted. Id. citing United States v. Anderson, 328 U.S. 699, 703; 66 S.Ct. 1213, 1216, 90 L.Ed. 1529 (1946).

This court has held on numerous occasions that § 110 does hot apply to a situation where an initial prosecution occurred in one county and the prosecutor in another county attempts to prosecute the same defendant for related acts arising from the same criminal episode but occurring solely in a different county. For example in Nichelson, supra, the defendant was charged and convicted of a variety of offenses in Philadelphia County including conspiracy to commit kidnapping, robbery, aggravated assault, forgery and murder. He was subsequently prosecuted in Chester County for criminal attempt homicide, aggravated assault, robbery, theft, receiving stolen property, violation of the Uniform Firearms Act, possession of instruments of crime, and conspiracy to commit all of these charges.

The defendant moved to dismiss the charges on the basis that the Chester County prosecutions were barred by the Philadelphia County prosecution, pursuant to 18 Pa.C.S.A. § 110. The trial court granted the motion with respect to the charges of criminal conspiracy and criminal attempted murder, and denied the motion with respect to the substantive offense. This court affirmed, holding that § 110 requires that the offenses must have been within the jurisdiction of a single court; that the charges in each county were properly brought in the county having jurisdiction over the respective offenses; and that § 110 was inapplicable to such a situation, regardless of the relationship of the offenses. See, e.g., Harris, supra (Montgomery County prosecution was not barred by defendant’s earlier conviction in Philadelphia County arising from same episode); Caden, supra, (section 110 inapplicable where Montgomery County lacked jurisdiction over the offenses that occurred in Delaware County); Commonwealth v. Simeone, 222 Pa.Super. 376, 294 A.2d 921 (1972) (defendant’s acquittal on charges of burglary, larceny, and receiving stolen goods in Philadelphia County does not bar a subsequent prosecution for similar offenses in Bucks County).

In the instant case, we must look to the nature of the three offenses in Allegheny County and the elements of those offenses to determine the locus of the crimes. The possession offense involves “knowingly or intentionally possessing a controlled substance” by a person not registered to do so. 85 Fa.C.S.A. § 780- 113(a)(16). Possession with intent to deliver includes the aforementioned elements and also requires the simultaneous intent to deliver the controlled substance. 35 Pa.C.S.A. § 780-113(a)(30). In addition, the delivery offense involves delivery of a controlled substance by a person not registered under the Controlled Substance, Drug, Device and Cosmetic Act, to another individual. 35 Pa.S.A. § 780-113(a)(30).

A complete review of the record in this case indicates that the locus of the three charges arising from the June 27th sale in Clairton was situated only in Allegheny County. Appellee possessed the drugs in Allegheny County. Furthermore, the “delivery” of the drugs from appellee to Officer Alston occurred within the boundaries of Allegheny County. There is absolutely nothing in the record to demonstrate that the elements of these offenses occurred anywhere other than Allegheny County. More importantly, there is no testimony whatsoever to support the proposition that the possession, the possession coupled with the intent to deliver, or the delivery occurred in Washington County. The mere fact that the parties planned their third buy in Washington County and traveled in the car from Washington County to Allegheny County and back again, does not vest Washington County with jurisdiction in this case. Neither the arrangements nor the traveling are elements of any of the offenses charged. Although we have conceded that this relationship is relevant in determining whether the offenses in Allegheny County arose from a common criminal episode as the Washington County offenses, that relationship has no bearing on the jurisdictional issue.

In closing we note that appellee has relied upon two cases, Commonwealth v. Moyers, 391 Pa, Super. 262, 570 A.2d 1323 (1990), and Commonwealth v. Craft, 304 Pa.Super. 494, 450 A.2d 1021 (1982), in arguing that the act of getting in the car in Washington County was a “sufficiently overt act” to confer jurisdiction on Washington County. We disagree and further believe that reliance upon these two cases is misplaced. Both Moyers and Craft involved conspiracy allegations. We do not have a conspiracy allegation in the instant case with regard to the Allegheny County offenses and the cases are distinguished based upon this difference. Furthermore, neither case dealt with a § 110 issue, but rather involved § 903(d)(2)(i) which is not at issue in this case and is relevant only in resolving the jurisdictional issue in a conspiracy case.

In the Moyers case, the court interpreted § 903(d)(2)© and held that the defendant’s act of driving the informant to Lebanon County in order to accomplish the goal of procuring cocaine was an overt act in furtherance of the conspiracy. The court determined that jurisdiction was proper in Lebanon County despite the fact that the conspiracy to deliver the cocaine was formed in Dauphin County. Also, in Craft, supra, this court held that when two coconspirators commenced driving from Crawford County to Armstrong County for the purposes of completing their criminal plan, they “took steps in Crawford County in furtherance of the conspiracy.” This act was considered sufficiently overt to establish jurisdiction in Crawford County.

However, the holdings of these cases are limited to an analysis under § 903(d)(2)© and they do not apply to a § 110 analysis. In the instant case, there was no conspiracy alleged in Allegheny County with respect to the third drug sale. Moreover, the conspiracy charge filed in Washington County related only to the first drug transaction which began and ended in Washington County. This conspiracy count did not extend to the other two drug transactions and most specifically it did not extend to the instant transaction in Clairton, Allegheny County. Hence, the holdings of Moyers and Craft are limited to a scenario involving a conspiracy charge. The fact that the parties got in the car in Washington County and traveled to Allegheny County is incidental rather than essential with respect to the specific elements of the crimes charged in Allegheny County, i.e., possession, possession with intent to deliver, and delivery.

Furthermore, the simple fact that the parties made plans in Washington County for the June 27th sale in Allegheny County is not directly relevant to determining the locus of the crimes in Clairton. The actual possession coupled with the intent to deliver and the delivery all occurred in Allegheny County. These were the overt and essential acts, hence Allegheny County is the only county with jurisdiction over the instant action.

In closing, we also note that the trial court’s reliance upon Commonwealth v. Katsafanas, 318 Pa.Super. 143, 464 A.2d 1270 (1983), is misplaced. Once again, the Katsafanas case did not involve a § 110 issue. In Katsafanas the defendants were charged with rigging the state lottery. The court held that although the criminal activity occurred in numerous places throughout the state, the functioning of the state computer was essential to the entire operation. The computer was located in Dauphin County; the predetermined number 666 was programmed into the computer in Dauphin County; and all computer-based data relating to purchases, odds, and authorization of payments originated in Dauphin County. Thus, venue in Dauphin County was among the places of proper venue if the computer was essential to the elements of the crime. The court also held that Dauphin County was not the only correct venue, that venue was proper where other acts pertaining to this crime had been committed.

We agree with appellant that Katsafanas is distinguishable from the instant case because there was no overt act in Washington County in furtherance of the substantive offenses. Furthermore, the instant case does not involve a complicated jurisdictional analysis like Katsafanas where the court had to consider the venue question in the context of a vast statewide computer network. Rather, the analysis here is quite simple. The possession and the delivery occurred solely in Allegheny County. Hence, § 110 does not present a bar to this action because Washington County could not assert jurisdiction over the instant offenses.

Accordingly, order reversed. Motion to quash denied. Jurisdiction relinquished.

DEL SOLE, J., files a dissenting Statement.

DEL SOLE, Judge,

dissenting:

I disagree with my esteemed colleagues’ analysis concerning the jurisdictional issue, and would affirm the trial court order dismissing the charges which were brought against Appellant in Allegheny County.

According to 18 Pa.C.S.A. § 903(d)(2)(i), the Washington County Court of Common Pleas could have had jurisdiction, had the conspiracy count been charged. I believe that the phrase “within the jurisdiction of a single court” refers to whether a court could have had jurisdiction, and not whether it did in fact have jurisdiction, for the purposes of § 110(l)(ii). I do not think we should permit the application of § 110 to be controlled by which crimes are charged.

Because the offenses in the instant case arose from a common criminal episode, and because both the Washington County and Allegheny County Courts of Common Pleas could have had jurisdiction over the matter, I would find that all four requirements of § 110(l)(ii) have been met, thereby warranting dismissal of the instant charges in Allegheny County. Accordingly, I respectfully dissent.

      . The record in this case does not include the criminal complaint related to the charges filed in Washington County. However, after a complete review of the transcript, it is clear that a delivery charge and a conspiracy charge were filed in Washington County, and these charges arose from the first two sales in Washington County. The conspiracy charge related only to the first drug sale in Washington County. The conspiracy did not extend to all of the sales nor did it include the one that occurred in Allegheny County. With respect to the first sale only, appellee and a co-defendant were charged with conspiracy. (Notes of testimony, 01/03/92 at 36-37, 51-52.) See also appellee’s brief at 4. The delivery charge filed in Washington County related to the second sale. (Notes of testimony, 01/03/02 at 34.) Hence, the Washington County charges did not cover or address in any way the third drug sale which occurred solely in Allegheny County.

      . 35 Pa.S.A. § 780-113(a)(16).

      . 35 Pa.S.A. § 780-113(a)(30).

      . 35 Pa.S.A. § 780-113(a)(30).

      . Both the trial judge and appellee concluded at various times during the hearing that a charge of conspiracy was involved with respect to the third drug sale in Allegheny County. However, our review of the record does not support this conclusion. Conspiracy was never charged in Allegheny County. Furthermore, although there was a conspiracy charge filed in Washington County, this related only to the first drug transaction which began and ended in Washington County. This conspiracy count did not extend to any of the other transactions and most specifically did not extend to the transaction in Clairton.

      This point becomes particularly relevant to the jurisdictional analysis because despite the fact that the parties agreed to travel to Clairton to purchase the larger quantity of drugs, the arrangement did not somehow vest Washington County with subject matter jurisdiction over the drug sale in Clairton. If conspiracy had been charged in Allegheny County, it is conceivable that Washington County could have had jurisdiction over the conspiracy. However, conspiracy was never charged in Allegheny County as to the third sale.

      . Section 903(d)(2)(i) of the Crimes Code provides in pertinent part "no defendant shall be charged with a conspiracy in any county other than one in which he entered into such conspiracy or in which an overt act pursuant to such conspiracy was done by him or by a person with whom he conspired____” 18 Pa.C.S.A. § 903(d)(2)(i).


source: Caselaw Access Project

author: WIEAND, Judge: CAVANAUGH, Judge,

license: Public Domain

text:
    631 A.2d 1314
    Patricia NIEHAUS, Appellant, v. DELAWARE VALLEY MEDICAL CENTER, Appellee.
    Superior Court of Pennsylvania.
    Argued April 27, 1993.
    Filed Aug. 27, 1993.
    Reargument Denied Nov. 5, 1993.

      Michael P. Kelly, Langhorne, for appellant.
    Jonathan B. Sprague, Philadelphia, for appellee.
    Before CAVANAUGH, WIEAND and HOFFMAN, JJ.
   WIEAND, Judge:

After an approved nine months’ leave of absence without pay; Patricia Niehaus sought to resume her employment at the Delaware Valley Medical Center. The employer refused to rehire her, and Niehaus sued. In an amended complaint she alleged that the medical center had breached an express or implied contract to rehire her. The trial court, in response to preliminary objections, dismissed the amended complaint with prejudice. Niehaus appealed.

In reviewing an appeal from an order sustaining preliminary objections in the nature of a demurrer to a complaint, we accept as true all material facts alleged in the complaint and all reasonable inferences which can be drawn therefrom. Hornung v. Schauseil Insurance Associates, Inc., 422 Pa.Super. 472, 478, 619 A.2d 775, 778 (1993). The amended complaint in this case alleged that Niehaus, an employee of Delaware Valley Medical Center, had made a written request for a leave of absence of nine months duration and had obtained her employer’s approval therefor. This was in agreement with a provision in an employee handbook which stated that if an employee were granted an approved leave of absence, that employee, at the end thereof, would be guaranteed the same or similar position to that occupied prior to the leave of absence. The handbook also' stated, however, that the provisions in the handbook were not to be interpreted as a contract of employment and that either party could terminate the employment relationship at any time. At the conclusion of Niehaus’s leave of absence, the medical center refused to rehire her for any position. Niehaus sued. She contended that she had either an express contract, or an implied contract based on promissory estoppel, that she would be rehired following an approved leave of absence.

The presumption under Pennsylvania law is that all employment is at will and, therefore, an employee may be discharged for any reason or no reason. Scott v. Extracorporeal, Inc., 376 Pa.Super. 90, 94, 545 A.2d 334, 386 (1988). “[A]s a general rule, there is no common law cause of action against an employer for termination of an at-will employment relationship.” Clay v. Advanced Computer Applications, Inc., 522 Pa. 86, 89, 559 A.2d 917, 918 (1989). “The sine qua 'non of the presumption is that except in rare instances, discharges will not be reviewed in a judicial forum.” Scott v. Extracorpo real, Inc., supra 376 Pa.Super. at 95, 545 A.2d at 336. The burden of overcoming the presumption and proving that one is not employed at-will “rests squarely” with the employee. Rutherfoord v. Presbyterian-University Hospital, 417 Pa.Super. 316, 323, 612 A.2d 500, 503 (1992). In order to rebut the presumption of at will employment, a party must establish the existence of: (1) an agreement for a definite duration; (2) an agreement specifying that the employee will be discharged only for just cause; (3) sufficient additional consideration; or (4) an applicable recognized public policy exception. Robertson v. Atlantic Richfield Petroleum, 371 Pa.Super. 49, 58, 537 A.2d 814, 819 (1987), allocatur denied, 520 Pa. 590, 551 A.2d 216 (1988).

In Richardson v. Charles Cole Memorial, 320 Pa.Super. 106, 466 A.2d 1084 (1983), an employee handbook issued to the plaintiff contained a statement that the employer’s policy was to offer “continuous’employment to all employees whose work proves satisfactory.” The plaintiff, who had been hired under a contract of indefinite duration, alleged in her complaint for wrongful discharge that the provisions of the employee handbook had created an employment contract which had been breached by the employer. The Superior Court rejected this argument, explaining that the “[employer’s] unilateral act of publishing its policies did not amount to the ‘meeting of the minds’ required for a contract.” Id. at 108, 466 A.2d at 1085. See also: Darlington v. General Electric, 350 Pa.Super. 183, 204, 504 A.2d 306, 316 (1986) (court questioned binding nature of employee handbooks on employers). Similarly, in Martin v. Capital Cities Media, Inc., 354 Pa.Super. 199, 511 A.2d 830 (1986), allocatur denied, 514 Pa. 643, 523 A.2d 1132 (1987), the plaintiff had been hired as an at will employee. She was given an employee handbook which contained a provision listing various acts deemed violative of the employer’s standard of conduct and which represented cause for disciplinary action. The handbook provided, however, that it could be modified by the employer at any time. When the plaintiff was terminated for reasons other than those listed in the handbook, she sued her employer, alleging a breach of contract. She contended that the provisions of the handbook had transformed her status from an at will employee to one who could only be terminated for cause. The Court disagreed explaining:

This would be a modification of immense proportions. For such an extreme modification of a preexisting contract, we would require a clear statement of an intent to so modify. We do not believe a reasonable person in the [plaintiffs] position would have read this handbook provision as converting her from an at-will employee to an employee with an indefinite contract who could never be discharged without objective just cause____ The vagueness and the generalities [of the handbook’s language] coupled with the employer’s reservation of power to unilaterally alter the handbook’s terms would lead a reasonable at-will employee to interpret its distribution as an informational guideline, and not as the exclusive enumeration of the entire panoply of rights and duties existing between employer and employee which served to displace the at-will contract that already existed between employee and employer.

Id. 354 Pa.Super. at 215-216, 511 A.2d at 838-839. See also: Reilly v. Stroehmann Bros. Co., 367 Pa.Super. 411, 416, 532 A.2d 1212, 1214 (1987), allocatur granted, 520 Pa. 577, 549 A.2d 137 (1988) (contract formed between employer and employee via employee handbook only if it “contain[s] unequivocal provisions that the employer intended to be bound by it and, in fact, renounced the principle of at-will employment.”).

In a slightly different context, in Morosetti v. Louisiana Land and Exploration Company, 522 Pa. 492, 564 A.2d 151 (1989), the plaintiffs argued that they were entitled to severance pay from their employer because there existed a policy in a manual used by the employer’s personnel manager. The trial court directed a verdict in favor of the employees on the basis that the employer had made a handbook offer for severance pay which had been accepted by the employees. The Supreme Court reversed, holding that a definitive offer for the severance pay was never made. The Court stated:

It is not sufficient to show they had a policy. It must be shown they offered it as binding terms of employment. A company may indeed have a policy upon which they intend to act, given certain circumstances or events, but unless they communicate that policy as part of a definite offer of employment they are free to change as events may require.

Id. at 496, 564 A.2d at 153. See also: Rutherfoord v. Presbyterian-University Hospital, supra; Vincent v. Fuller Co., 400 Pa.Super. 108, 582 A.2d 1367 (1990), reversed on other grounds, 532 Pa. 547, 616 A.2d 969 (1992).

The appellee-medical center contends in this case that because appellant was an employee at will, she could be terminated for any reason or for no reason, and that it would be absurd to require a rehiring of appellant when she could thereafter be discharged immediately. Because she could be discharged at any time and for any reason, the argument goes, her employer could refuse to reinstate her even following an approved leave of absence. Any contrary provision in the employee handbook, it is suggested, was not a definite part of appellant’s contract of employment but merely an informal guideline which could be changed at will by the employer. Moreover and in any event, suggests the employer, there was no consideration for an agreement to rehire appellant following an approved leave of absence. It is argued, therefore, that the provision in the handbook is unenforceable.

After careful review, we reject appellee’s arguments. Although they have superficial appeal, they do not withstand the light of closer examination. If appellant was initially an employee at will, she nevertheless took a leave of absence only with her employer’s approval and upon its promised guarantee that she would be reinstated at the end thereof in the same or a similar position. This, if the averments of her complaint are correct, created a contract. To hold otherwise would be to condone blatant deception.

Courts have found “additional consideration” to support employment contracts for a definite duration “when an employee affords his [or her] employer a substantial benefit other than the services which the employee is hired to perform, or when the employee undergoes a substantial hardship other than the services which he [or she] is hired to perform.” Darlington v. General Electric, supra 350 Pa.Super. at 201, 504 A.2d at 315. In Scullion v. EMECO Industries, Inc., 398 Pa.Super. 294, 580 A.2d 1356 (1990), allocatur denied, 527 Pa. 625, 592 A.2d 45 (1991), the employee had been discharged after three months of employment. He had been promised by his employer that “[this] was the last job he would ever have” and he had turned down an incentive to remain with his former employer, had sold his home in California, had moved his family to Pennsylvania and had purchased real estate in Pennsylvania. Under these circumstances, the Court held, there was a jury question regarding the sufficiency of the additional consideration to overcome the presumption of an employment at will and render the promise enforceable. Similarly, in Greene v. Oliver Realty, Inc., 363 Pa.Super. 534, 526 A.2d 1192 (1987), a jury question existed where plaintiff allegedly had been promised lifetime employment in exchange for his acceptance of a rate of pay below union wages and where he, in fact, had worked for twenty-four (24) years at sub-union rates. Compare: Scott v. Extracorporeal, Inc., supra 376 Pa.Super. at 101, 545 A.2d at 339 (at will presumption not rebutted where there was no evidence that “[employee] brought any abilities to the job, aside from the services for which she was compensated, which were beneficial to her employer or that she sacrificed anything tangible pursuant to the agreement beyond that for which she was paid.”); Martin v. Capital Cities Media, Inc., supra 354 Pa.Super. at 217, 511 A.2d at 839 (where employee handbook was given to plaintiff gratuitously, there was no evidence of either an additional consideration rendered by plaintiff or an intent by employer to change plaintiffs at will status); Darlington v. General Electric, supra 350 Pa.Super. at 202, 504 A.2d at 315 (court did not find additional consideration where employer terminated plaintiffs employment after fifteen years of service and plaintiff’s decision to leave his former company “was simply a reasoned choice of a new career goal.”).

In the instant case, whether or not there was consideration, the employer’s promise is enforceable under principles of promissory estoppel. “A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.” Restatement (Second) of Contracts, § 90(1). Where an employer expects, if not demands, that its employees abide by a policy expressed with particularity in an employee handbook, an employee may justifiably rely thereon and expect justifiably that the employer will do the same. Thus, when an employer announces a specific practice or policy, especially in light of the fact that it expects employees to abide by the same, the employer may not treat its promises as being illusory. Thompson v. St. Regis Paper Co., 102 Wash.2d 219, 230, 685 P.2d 1081, 1088 (1984).

Here, the medical center, by its handbook, had guaranteed its employees that if a leave of absence were requested and approved by the employer, then the employee could return at the end of the leave of absence and would be restored to the same or similar position as that occupied by the employee prior to the leave of absence. Under this policy, the employer had a right to expect a stable work force, where employees would take leave of absence only with the employer’s consent and approval. An employee who was granted an approved leave of absence, however, could also rely upon the employer’s promise that the employee would be rehired. The employer’s promise was not illusory. When the appellant employee was induced in fact to seek and obtain an approved leave of absence without pay on the assurance that she could return to the same or similar employment at the expiration of her leave, enforcement of the promise was essential to avoid injustice.

The appellee-medical center argues, however, that a cause of action for breach of a contract of employment cannot be based on the provisions of a handbook where other language disclaims an intent to form a contract. In this case, appellant was initially employed at will, and nothing in the employee handbook was sufficient to change the employee’s status by conferring contractual rights. See: Rutherfoord v. Presbyterian-University Hospital, supra; Ruzicki v. Catholic Cemeteries Ass’n, 416 Pa.Super. 37, 610 A.2d 495 (1992). When the employee requested a leave of absence without pay, the employer could have refused to approve it or, indeed, could have revoked its promise of renewed employment at the end of the leave of absence. This it did not do. Instead, it approved the leave of absence pursuant to and in accordance with its handbook promise to restore the employee to the same or a similar position as that occupied by the employee before the leave of absence. It is this approval which thereupon gave rise to an implied contract and not the mere language of the handbook. The promise of rehiring was a part of the approved leave of absence to which both parties had agreed.

It must be conceded, as appellee argues, that the agreement did not provide that appellant would continue to be employed for any specific period. On the other hand, appellant was not unknown to the medical center. She was an experienced employee, whose leave of absence had been approved, and whose capabilities or lack thereof were known to the medical center. By approving her leave of absence in accordance with the guarantee contained in the employee handbook, the employer impliedly agreed to rehire her at the end of her leave of absence for at least a reasonable period of time unless she was then unable to perform satisfactorily the duties of such employment.

When there is no express provision in a contract as to its duration, the intention of the parties regarding the duration and the termination of the contract is to be determined from the nature and the subject-matter of the contract, from the circumstances under which it was executed, and by an application of a reasonable construction to the agreement as a whole. Contracts which do not fix a definite time for the duration of the relationship which they create are sometimes construed as providing for a reasonable time or some particular period inferred from the nature and the circumstances of the undertaking.

8 P.L.E., Contracts § 245 (footnotes omitted). See: Price v. Confair, 366 Pa. 538, 79 A.2d 224 (1951). See also: Scullion v. EMECO Industries, Inc., supra 398 Pa.Super. at 299, 580 A.2d at 1359 (“When the exact period for which the parties intended to contract is unable to be determined, an agreement for a ‘reasonable time’ will be inferred.”); Straup v. Times Herald, 283 Pa.Super. 58, 64-65, 423 A.2d 713, 716-717 (1980) (“It is the settled law of agency that if the agent or employee furnishes a consideration in addition to his mere services, he is deemed to have purchased the employment for at least a reasonable period where the duration of the employment is not otherwise defined.”).

For these reasons we conclude that the trial court erred when it summarily dismissed appellant’s amended complaint. The complaint is sufficient to allege a cause of action for breach of a contract to rehire.

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

CAVANAUGH, J., files a dissenting opinion.

CAVANAUGH, Judge,

dissenting:

I respectfully dissent. The majority opinion holds that the doctrine of promissory estoppel can elevate an employee’s handbook into an implied contract where it is conceded that there is no intent by the employer to be bound by the handbook. The majority opinion’s analysis is contrary to the well-established law in this Commonwealth that an employee handbook does not bind the employer unless it expresses a clear intent by the employer to be bound. It also makes dramatic inroads into the employment at-will doctrine, adding a new exception to the only recognized exception to the doctrine, a termination that violates public policy.

There is hardly a more settled principle under Pennsylvania law that an employee' handbook does not overcome the employment at-will presumption unless the handbook’s language clearly expresses that the employer intended such a result. Rutherfoord v. Presbyterian-University Hospital, 417 Pa.Super. 316, 323, 612 A.2d 500, 503 (1992); Ruzicki v. Catholic Cemeteries Ass’n, 416 Pa.Super. 37, 42, 610 A.2d 495, 497 (1992); Mudd v. Hoffman Homes for Youth, Inc., 374 Pa.Super. 522, 530, 543 A.2d 1092, 1096 (1988); Scott v. Extracorporeal, Inc., 376 Pa.Super. 90, 97, 545 A.2d 334, 338 (1988); Reilly v. Stroehmann Bros. Co., 367 Pa.Super. 411, 415, 532 A.2d 1212, 1216 (1987); Martin v. Capital Cities Media, Inc., 354 Pa.Super. 199, 222, 511 A.2d 830, 841-842 (1986). The employee handbook sub judice does not express any clear intention by the employer to be bound by its contents. Quite to the contrary, the handbook’s first page contains, in block text, a disclaimer:

I hereby acknowledge that I have received a copy of the Delaware Valley Medical Center’s Employee Handbook which covers rules, policies and regulations pertaining to my employment. I understand and acknowledge that this Employee Handbook is not a contract of employment for any specified period of time. I understand that I may voluntarily leave my position upon proper notice or be terminated by the Medical Center at any time and for any reason. Any oral or written statements or promises to the contrary are hereby expressly disavowed by the Medical Center and are not relied upon by the undersigned. I further understand that the contents of this Handbook are subject to change at any time at the discretion of the Medical Center.

The majority opinion appears to recognize that under Pennsylvania law, that this employee handbook evidences no intent by the employer to be bound. It concludes that the “appellant was initially employed at will, and nothing in the employee handbook was sufficient to change the employee’s status by conferring contractual rights.” Opinion at 1318.

Notwithstanding, the majority argues that the employee handbook expresses a policy regarding leaves of absence that is enforceable against the employer under the principles of promissory estoppel. The tenor of its analysis is that where an employer expects, if not demands, its employees to abide by policies expressed with particularity in an employee handbook, an employee can justifiably rely on the fact that the employer will adhere to the handbook’s policies also. It cites for support of this proposition. Thompson v. St. Regis Paper Co., 102 Wash.2d 219, 685 P.2d 1081 (1984).

The majority analysis seems to be espouse a revision of principles that are well-settled under Pennsylvania law. As stated supra, an employee handbook must contain a clear expression of an employer’s intent to be bound by its contents for the principle of at-will employment to be obviated. The majority opinion appears to recognize this legal doctrine, as noted supra, and also that this handbook displays no intent to be bound. Notwithstanding, for the purposes of promissory estoppel, the majority opinion concludes that the employee handbook evidences an intent for the employer to be bound by its provisions.

I do not see how one can have it both ways. It is difficult to see how the employee handbook does not evidence an intent to be bound for the purposes of treating the booklet as a contract yet still evidence an intent for the employer to be bound for the purposes of promissory estoppel. Either the handbook expresses a clear intent by the employer to be bound or it does not. Since the majority opinion concedes that the employee manual does not evidence an intent to be bound, its inquiry should go no further. Accordingly, the premise of its argument, that the employer expected the handbook to represent the mutual obligations of the employer and the employee, is erroneous.

The Washington state decision that the majority opinion cites as its principal authority for applying the doctrine of promissory estoppel to employee handbooks is neither controlling nor contrary to our analysis. Directly after the Thompson court’s analysis regarding circumstances where an employee manual might bind an employer, the court stated as follows:

It may be that employers will not always be bound by statements in employment manuals. They can specifically state in a conspicuous manner that nothing contained therein is intended to be part of the employment relationship and are simply general statements of company policy. Additionally, policy statements as written may not amount to promises of specific treatment and merely be general statements of company policy and, thus, not binding. Moreover, the employer may specifically reserve a right to modify those policies or write them in a manner that retains discretion to the employer.

Thompson, 102 Wash.2d at 230-81, 685 P.2d at 1088. Accordingly, where, as here, an employer specifically disclaims any intent to be bound by the employee handbook, the employer is not bound by policy aspirations expressed in it. If anything, Thompson is in accord with traditional Pennsylvania law regarding employee handbooks, and militates that the lower court should be affirmed.

It appears to me that the majority opinion’s analysis establishes what appears to be an internally inconsistent and illogical exception to the general rule applicable to employee handbooks. The general rule is that such handbooks do not bind an employer unless there is a clear intent in that handbook the employer be bound. Yet the majority posits that an exception to this is when the handbook articulates certain policies which the employee could justifiably expect would be followed. I would submit that the rule and the exception share the selfsame inquiry: whether the handbook clearly evidences an employer’s intent to be bound by it. One can opine that the handbook evidences a clear intent to be bound, or one can claim the opposite, but one cannot do both.

Any attempt to resurrect the promissory estoppel doctrine in this context in any event is untenable in light of our Commonwealth’s Supreme Court ruling in Paul v. Lankenau Hospital, 524 Pa. 90, 569 A.2d 346 (1990). In Lankenau, an employee was terminated for allegedly removing five refrigerators from the place of his employment.. The employee stated he was given oral approval by the employer’s storeroom manager to remove the refrigerators, and thus, the employer should be estopped from firing him for this reason. In the course of overruling a Superior Court en banc decision which ruled the doctrine of promissory estoppel prevented the employer from terminating its employee, our Supreme Court declared as follows: “[a]n employee may be discharged with or without cause, and our law does not prohibit firing an employee for relying on an employer’s promise.” Id. at 95, 569 A.2d at 348 (emphasis added); accord Ruzicki v. Catholic Cemeteries Ass’n, 416 Pa.Super. 37, 610 A.2d 495 (1992).

It is true that our Supreme Court declared the foregoing in reference to whether the doctrine of equitable estoppel is an exception to the employment at-will doctrine. Lankenau, supra, 524 Pa. at 95, 569 A.2d at 348. The Court’s word choice supra, however, instructs the Bench and Bar that the court would look with disfavor at trying to evade the employment at-will doctrine through the use of promissory estoppel. Moreover, it is apparent from the Court’s reasoning that the doctrine of promissory estoppel is not a viable exception to the employment at-will doctrine. As the Court expressly reiterated in Lankenau, quoting with approval Clay v. Advance Computer Applications, 522 Pa. 86, 559 A.2d 917 (1989): “[exceptions to [the employment at-will doctrine] have been recognized in only the most limited of circumstances, where discharges of at-will employees would threaten clear mandates of public policy.” Lankenau, supra, 524 Pa. at 95, 569 A.2d at 348, quoting Clay, supra, 522 Pa. at 89-90, 559 A.2d at 918. Promissory estoppel, accordingly, just as equitable estoppel, must fail as an exception to the employment at-will doctrine.

Viewed in light of Lankenau’s reaffirmance of the employment at-will doctrine, the majority’s declaration that this admittedly at-will employee may recapture her job (or a similar one) for “at least” a “reasonable period of time” is suspect. Such a conclusion rests decidedly uneasily with our pronouncements that an employer may terminate an at-will employee for good reason, bad reason, or no reason at all. Nix v. Temple University, 408 Pa.Super. 369, 375, 596 A.2d 1132, 1135 (1991); Hershberger v. Jersey Shore Company, 394 Pa.Super. 363, 368, 575 A.2d 944, 946 (1990), appeal denied, 527 Pa. 601, 589 A.2d 691 (1991). I find it interesting that the majority does not undertake to declare what the duration of this new employment period will be. It leaves to some other court in the future to ponder the potentially unanswerable question of what the “reasonable period of time” exactly is that the employer must retain this employee with no contractual rights to continued employment.

The majority opinion’s analysis has the potential for far-reaching repercussions. The most assured result is that it will make the law relating to employee handbooks analytically unworkable. Its reasoning will also engender trial court confusion in ascertaining the law applicable to employee handbooks. I submit that the majority opinion’s analysis has muddied the waters of what is the purest of doctrinal streams in our Commonwealth’s jurisprudence.

For the foregoing reasons, I dissent. I would find that the lower court’s granting of the appellee’s preliminary objections was appropriate and should be affirmed.

      . Niehaus had filed an original complaint asserting in three counts: breach of contract, estoppel, and violations of the Wage Payment and Collection Law. Preliminary objections were sustained by the trial court and Niehaus was given permission to file an amended complaint. In her amended complaint, Niehaus asserted only counts sounding in breach of contract and estoppel. Preliminary objections were again sustained by the trial court. Because only the amended complaint is before us for review, we do not consider a claim under the Wage Payment and Collection Law.

      . Other cases have defined these elements in slightly different terms. See, e.g.: Scott v. Extracorporeal, Inc., supra (presumption may be overcome by [1] express contract, [2] implied in-fact contract, [3] additional consideration passing from the employee to the employer and [4] discharge [of at-will employee] would contravene a clear public policy or if it is effected with the specific intent to harm the employee).

      . Promissory estoppel under Section 90 of the Restatement (Second) of Contracts is not the same as equitable estoppel, although the two principles are related. See: Paul v. Lankenau Hospital, 524 Pa. 90, 569 A.2d 346 (1990); Ruzicki v. Catholic Cemeteries Association, 416 Pa.Super. 37, 610 A.2d 495 (1992).

      . The dissent’s lament that the decision in this case will have far-reaching repercussions and will revise and confuse the law applicable to at-will employment is without foundation. The facts of this case are entirely different from and more compelling than those of prior appellate court decisions permitting the discharge of at-will employees for any reason or no reason. Our decision is limited to the facts of this case. It has application only where an employee takes a leave of absence with the employer’s express approval and upon his promise of re-employment at the end of such approved leave of absence.

      . In various parts of the majority opinion it is asserted that there is an enforceable contract; that there may be “additional consideration” to presumably support a leave of absence agreement; and finally that the leave policy is enforceable under the doctrine of promissory estoppel. The majority, however, only undertakes an extensive analysis of whether the leave policy is enforceable under the doctrine of promissory estoppel. As the majority has failed to provide an adequate explanation of any contractual theory upon which relief may be granted, I will only address the majority's promissory estoppel argument.

      . Although the lower court dismissed the appellant’s complaint at a preliminary stage in the litigation for failure to state a cause of action, the majority opinion's analysis appears to dictate that the appellant be rehired.

      . As noted supra, the majority opinion does not appear to argue that an employer’s promise to an employee binds the employer under the doctrine of promissory estoppel. Rather, the argument appears to be that the doctrine binds an employer who acts consistently with an employee handbook which the employer and employee mutually agree is binding under the doctrine of promissory estoppel.

      . For an interesting judicial lamentation on the effect of expansive judicial creation of perceived infringement of employee rights, it is interesting to note the comments of a California appeals court decision. The majority opinion writer in an intermediate appellate court decision, after feeling constrained by judicial precedent to affirm a seven million dollar award for improper discharge and allied claims, opined:
      This area of the law is quickly running out of control and the citizens of California will be the ultimate victims and losers. Court-made law, imposed without public hearings or a public debate of the issues, cannot be dictated in this regard by this court. But, it is clear that commerce in California cannot flourish with such multi-million dollar verdicts readily attainable. Legislative caps or limits have been imposed in certain areas of medical malpractice and workers compensation. If the Legislature fails to act in this area, we can see that, in due course, business enterprises will flee the state. It is not our obligation to make the laws, but it is our responsibility to point out where laws are needed.
      We also agree with the learned lament expressed by our esteemed colleague, infra.

        Hunio v. Tishman Const. Corp. of Cal., 14 Cal.App.4th 1010, 18 Cal.Rptr.2d 253, 266 (2 Dist.1993).
      The writer, Judge Aranda, joined in the remarks of Associate Justice Ortega, which are as follows:
      I reluctantly concur. I agree with the majority’s analysis and write only to lament the extent to which employees can claim emotional distress because their working conditions are less than ideal. To paraphrase what happened here, the employer created an "intolerable" situation for Hunio by the following: "We'll make him quit by giving him small raises and small bonuses." (Maybe if they had given him big raises and big bonuses, he would have quit sooner.) Many employees should be so lucky. Only in Wonderland, one would think, could such be considered the creation of an intolerable work situation. But the jury weighed the evidence, and, under the current state of the law, I can’t find a way to conclude there was insufficient evidence.
      We all know people who are dissatisfied with their jobs, but who nonetheless stick it out — especially during periods when jobs are hard to come by. We all know someone who has put up with a rough situation for a few years so he can get to his retirement. In California, however, it seems that merely having a good job with good pay is not enough. If the job isn’t "fulfilling” or doesn’t build the employee’s "self esteem,” the employer is somehow derelict, in spite of providing good pay and good benefits. While many employees fully expect to ride high during the good times, they are quick to jump on the emotional distress wagon as soon as the situation takes a downturn.
      No one would want to go through a period from one day to the next whether termination is around the corner. But auto workers and aero-space workers, for example, have gone through years of such distress and haven't cracked up, but rather have stuck it out hoping for the best and preparing for the worst. When the worst has happened, most have gotten on with their lives and sought something else. I don’t think it is unusual for someone with a long history of employment to have at one time or another worked for a nasty boss. No matter how hard we try, we will never be able to guarantee that a worker will spend a career without having to endure personal animosity from a co-worker or supervisor.
      We seem to be on the verge of guaranteeing the right to a “nice and easy’’ career. I don't see how a company can operate when it must cater to those of such tender sensibilities. Maybe that’s one of the reasons some of the companies are moving way. Hunio can live in ease, but a cumulation of this type of litigation promises nothing but ill for employees of companies which can no longer absorb this type of a business cost.

        Hunio, supra, 18 Cal.Rptr.2d 253 at 267.


author: HESTER, Judge:

text:
    631 A.2d 1323
    COMMONWEALTH of Pennsylvania, Appellant, v. Israel SANTIAGO.
    Superior Court of Pennsylvania.
    Argued May 11, 1993.
    Filed Aug. 27, 1993.
    Reargument Denied Oct. 26, 1993.

      Joan Weiner, Asst. Dist. Atty., Philadelphia, for the Com., appellant.
    Helen A. Marino, Philadelphia, for appellee.
    Before BECK, POPOVICH and HESTER, JJ.
   HESTER, Judge:

The Commonwealth appeals from the October 21, 1992 order entered by the Philadelphia County Court of Common Pleas dismissing all charges against appellee following argument on post-verdict motions which were filed after appellee was found guilty at a nonjury trial. At issue is whether the Commonwealth is required to reveal a surveillance address where such disclosure could jeopardize the safety of innocent persons at the location, and where sufficient details concerning the location had been disclosed so that defendant was able to adequately cross-examine the police witnesses about their ability to observe the criminal activity. We hold that such disclosure was unnecessary under the circumstances. We reverse, reinstate the verdict, and remand for sentencing.

On September 26,1989, narcotics officers Michael Eibel and Thomas Martinka conducted an undercover surveillance of the 1800 block of Wallace Street in Philadelphia. That area of the city was notorious for its high drug trafficking. With the use of binoculars, the officers monitored the street activity from a confidential location in a building on the east side of 19th Street. The officers observed appellee standing on the south side of Wallace Street. They watched as appellee and a group of approximately twenty people moved west from the middle of Wallace Street toward the corner on 19th Street. At appellee’s direction, the group separated from him and formed a single line. The first three individuals in the line each walked up to appellee, handed him money, and in return, received a small, plastic packet. The officers noticed that appellee retrieved the plastic packets from a brown paper bag which he held in his hand.

The officers notified their field team but remained in their surveillance location and continued to monitor appellee. Officer Eibel saw appellee complete one more transaction, cross over to the north side of Wallace Street, and place the brown paper bag on the ground, behind a refrigerator which was situated on a vacant lot. Appellee then walked east on Wallace Street toward 18th Street. Officer Eibel guided the field team to appellee who was arrested before he reached 18th Street. The field team searched appellee and found forty dollars in cash. In addition, the team found the brown paper bag which was exactly where Officer Eibel observed appellee place it. The bag contained seventy-three clear plastic packets of cocaine sealed with red tape which weighed 27.2 grams and had a street value of $2,720.00.

In his defense, appellee maintained that he was the victim of misidentification. He denied that he was the individual whom the surveillance officers had watched selling cocaine. Instead, he claimed that he was in the area to purchase special water for his wife’s asthma machine. He explained that the money taken from him was payment for a landscaping job.

At trial, the defense attempted to ascertain the exact address of the surveillance location through cross-examination of the surveillance team. Appellee maintained that the information was essential to his ability to defend himself. The Commonwealth argued that divulging the exact address of the location would compromise the safety of individuals residing at that address. Furthermore, it argued that disclosure would jeopardize future surveillance from the location.

The Commonwealth invited the court to voir dire Officer Eibel in order to record the legitimate reasons for maintaining confidentiality. During questioning, the officer explained that the location had been used in the past for similar operations, and while he no longer worked the area and could not say with certainty that it was currently being used in an ongoing basis, disclosure of the site could result in future reprisals against the residents. He feared that disclosure of the precise location would compromise the safety of the individuals at the address.

Numerous details regarding the location were provided to the defense. Officer Eibel testified that he conducted the surveillance from a building; that he was approximately twenty-five feet above the sidewalk; at times he was looking through one pane of glass, and at other times, he was looking through no glass; that the surveillance was located on the 600 block of north 19th Street, approximately one hundred feet from the southeast corner of 19th and Wallace Streets. The Commonwealth successfully adyanced its position concerning the confidentiality of the precise address, however. The court allowed the defense to pinpoint the general location, but did not allow it to pursue questioning aimed at obtaining the street number. It concluded that the stipulations placed upon the questioning did not represent a serious impairment in appellee’s ability to question the officers regarding the location of obstacles which may have interfered with the officer’s observations of the illegal activity. Based on the testimony and evidence offered at trial, the court found appellee guilty of possession of a controlled substance with intent to deliver.

Post-verdict motions were filed and subsequently argued before the trial court. At the July 6, 1992 hearing, appellee argued that his constitutional right to confront and cross-examine Officer Eibel was violated because the trial court curtailed his questioning regarding the exact address of the surveillance site. He maintained that his ability to defend himself was hampered by the limitations imposed by the trial court. Because no case law directly on point had been presented by either party, appellee requested a continuance. The court set another hearing date for August 28, 1992.

At the héaring, the court acknowledged its confusion with regard to the similarities and differences of the confidentiality interests of informants as opposed to locations. The court reasoned that if, in fact, the two were analogous, it would be compelled to grant the post-verdict motion. The court queried whether in one sense the situations were similar in that all of the testimony regarding the observation of appellee originated from the undisclosed location. The court reasoned, therefore, this was not unlike a situation wherein all of the evidence in a case is derived from information obtained from a confidential informant, and no -other disinterested party, i.e., a law enforcement officer, was available to testify against the defendant. The court concluded that current case law would require the disclosure of a confidential informant in such a circumstance, and stated that it likely would grant appellee’s post-verdict motion.

The Commonwealth argued that the situations were dissimilar in that in the case of the informant, the testimony of the individual was necessary to substantiate the facts of the case. In the instant case, however, there was no need to identify the precise locale in order to corroborate the officer’s testimony. The officer is the eyewitness, not the location. Nonetheless, the court failed to reach a resolution. Instead, it requested additional information from both parties. The court requested the parties to prepare a letter explaining their position on whether further testimony should be taken regarding the appropriateness of keeping the location confidential. The court, which was concerned and somewhat unsettled with the fact that neither party raised the issue in a pre-trial motion, was confused about the status of the law in in Pennsylvania on the privilege of the confidential location. It queried that perhaps there should be some test or requirement that the Commonwealth show the court, in camera, a photograph of the area so that the court could make a preliminary determination whether there are or are not obstructions. See Reproduced Record (“R.R”), at 230a-235a. The Commonwealth responded that the case had been tried and that the production of further information post-trial was improper because post-verdict motions are to be decided on the basis of law, not fact.

At the hearing held on October 14,1992, the Commonwealth refused to provide the defense with any additional information regarding the surveillance location. The Commonwealth did recite the trial testimony, which the court credited. It argued that even if there were law on point as of the hearing date, the post-verdict research would be inapplicable to the instant case, and therefore, unnecessary. However, the court chose to continue the case, once again to consider the applicable case law and consider whether it had committed error by limiting the scope of the officer’s testimony.

On October 21, 1992, the court fashioned a test which it retroactively applied to the trial facts. It concluded that while it is likely that there is a privilege to keep a location confidential, nonetheless, it would be limited by an accused’s right to a fair defense. Factors to be considered would include the accused’s right to question observations made and the possible significance of the information. The court concluded that since all of the observations which led to the arrest of the accused were made from the confidential location, that information should have been divulged. The court then granted appellee a new trial based on the perceived trial court error. It once again asked the Commonwealth if it would be willing to release the confidential information. When the Commonwealth responded that it would not, the court dismissed all charges against appellee. This appeal followed.

On appeal, the Commonwealth argues that it was not constitutionally compelled to divulge the exact address from which Officer Eibel monitored appellee’s illegal activity because the record contains a multitude of information available to appellee via direct and cross-examination. Specifically, the record reveals that Officer Eibel told the court that his surveillance position was approximately one hundred and twenty-five feet from the southeast corner of 19th and Wallace streets, on the six hundred block; he was approximately twenty-five feet above sidewalk level; ample overhead lighting was provided by a nearby baseball field; his sight was enhanced through the use of binoculars; while a cyclone fence bordered the field on the sidewalk, it did not occlude his view since he was able to see through it. R.R., at 102a, 101a, 81a.

Furthermore, the Commonwealth maintains that the defendant’s desire to ascertain the exact address was outweighed by the need for confidentiality. Officer Eibel told the court that confidentiality was necessary since the location had been used by the police on several different occasions, the individuals who had assisted the police were still at the address, and disclosure of the location might compromise their safety. Indeed, when all testimony regarding the surveillance location had been offered, the trial court originally concluded that the limitation placed upon the defense did not amount to “that serious of an impairment upon the ability to cross-examine.” R.R. at 103a. We agree with the court’s first impression.

Pa.R.Cr.P. 305 provides that the defendant’s right to discover may be limited if the information sought is protected by privilege. Our courts long have recognized the exercise of the governmental privilege with regard to the disclosure of the identity of informants. The notion that the informant is a virtually indispensable adjunct to the enforcement of narcotics laws is hardly new. See Commonwealth v. Carter, 427 Pa. 53, 233 A.2d 284 (1967). In Carter, our Supreme Court held that the trial court must balance the competing interests regarding the flow of information and an accused’s right to prepare a fair and adequate defense. Specifically, the court held that if the informer was a material witness to the alleged illegal act, and no other disinterested sources, i.e., non-law enforcement personnel, were capable of corroborating the Commonwealth’s case against the accused, then disclosure would be warranted. It is the defendant, however, who has the burden of demonstrating to the trial court that the information sought is material and that disclosure is in the interest of justice. Commonwealth v. Novasak, 414 Pa.Super. 21, 606 A.2d 477 (1992).

Appellee vaguely maintains that the exact address was critical to his defense of misidentification. He argues that it was imperative in order to refute the officers’ testimony. Yet, the record shows that the court afforded the defense with the opportunity to question the officers regarding any potential visual obstacles and allowed the defense to pinpoint the location to a specific area on a specific block. However, the defense made no attempt to show that specific buildings within that locale did not have an unobstructed view of the street below, thus necessitating a more detailed cross-examination. Instead, appellee attempts to bolster his position with a claim that the Commonwealth is at fault for failing to support its unsubstantiated claim that the exact location should remain confidential.

While our courts have yet to recognize a specific privilege with regard to the confidentiality of surveillance locations, the competing interests with regard to a balancing test utilized in determining whether the information is material to a fair defense as opposed to the governmental interest in protecting the location used for the purpose of sheltering inhabitants from reprisal, are analogous. Just as drug informants are tools for law enforcement personnel, so are ordinary citizens who put their faith in the protection offered by law enforcement personnel when they offer their homes or businesses for surveillance purposes. It is no secret that our society is plagued with crimes which arise directly or indirectly from illegal drug activity. Likewise, we are not surprised when network news anchors inform us that individuals are afraid to come forward with information or become involved in police investigations because they fear that either they or their families will be harmed as a result of their cooperation. Certainly, the situation is critical. The need to balance the accused’s right to a fair and adequate defense as against the government’s need to ensure the safety of private citizens weighs heavily.

Therefore, we must closely scrutinize appellee’s request for information. While appellee insists that the information was necessary in order to support his defense of misidentification, he does not tell us why. He was given the opportunity to question the officers about the location ad nauseum. The officers testified as to the location of the surveillance point, the distance between the observation site and the defendant, the angle of view, the direction — every question that was asked was answered, save for the exact address. Appellee had every opportunity to ascertain whether the view was unobstructed. Our review of the testimony reveals that while appellee was precluded from questioning the officers concerning the street number, there were no substantial limitations placed upon his ability to discredit the officers’ observations. At no time, however, did the defense attempt to challenge or establish that the view from different positions within the pinpointed range of the locale described by the officers would have varied from clear to obstructed depending on a precise address.

The defense attempts a comparison between United States v. Foster, 986 F.2d 541 (D.C.Cir.1993), and the facts herein. Our review of that case reveals that in Foster, only the angle and the distance of the post from the location where the defendant was monitored were revealed during cross-examination. In addition, there was a heightened concern as to the ability of the officers to observe Foster’s alleged activity because initially, the field officers arrested another man based on the description given by the officer at the observation post. That man was released, and then Foster was arrested. Furthermore, the District of Columbia Court was guided by precedent which required the trial court to balance the interests of the government in protecting the location of the post as against the defendant’s right to question the accuracy of the officer’s perceptions. See United States v. Harley, 682 F.2d 1018 (D.C.Cir.1982).

In Foster, there were no concerns about protecting people at the location, nor were there any concerns that the location would be used again, as was the case herein. In Foster, the Commonwealth sought to exercise their privilege based on the argument that disclosure would destroy the effectiveness of the observation post. Since the officer was monitoring drug deals from an open area, the court concluded that no citizens had aided the police. Furthermore, the court added that after Foster’s trial, any dealer would be a complete fool to conduct a transaction within range from the observation area. Therefore, the court concluded that when the officer testifying is essential to the case against the defendant, and there are no realistic competing interests, the information should be revealed.

Foster is distinguishable in that herein, not only was a great deal more information revealed to the defendant through cross-examination, but there are important competing societal interests. In order to defeat those interests and the privilege which protects them, the defendant must make a specific showing that the information available to him is insufficient to mount an effective defense. Appellee made no attempt to prove that areas within that finite location were obstructed from view.

Since appellee has not met his burden, we conclude that the Commonwealth may assert its governmental privilege regarding the confidentiality of the surveillance location. Accordingly, we hold that the post-trial court erred in granting a new trial based upon the reconsideration of its decision at trial protecting the confidentiality of the surveillance location.

Order reversed, verdict reinstated, and the case is remanded for sentencing. Jurisdiction relinquished.

      . The Commonwealth’s notice of appeal states that it appeals from "the order of the Honorable Albert J. Snite, Jr., discharging defendant, entered in this matter on the 21st day of October 1992.” Appellee argues that the Commonwealth has appealed only the propriety of the dismissal order which it maintains was entered on April 24, 1992. Appellee’s brief at 3, 14. He asserts that the Commonwealth, therefore, has waived the issue regarding the propriety of the hearing court’s grant of a new trial.
      Our review of the record reveals that there was no order entered on April 24, 1992, which dismisses all charges against appellee. Appellee’s guilty verdict was entered on that date. There is, however, only one order dated October 21, 1992. That order granted the defendant’s motion for a new trial and simultaneously dismissed all charges against the defendant due to the Commonwealth’s refusal to disclose. The Commonwealth has appealed from that order.

      . The brown paper bag contained three larger, clear plastic baggies containing a white powder which tested positive for cocaine. Two of the larger bags were closed and each contained twenty-five smaller “dime bags” ($10.00 street value), which were individually sealed with red tape. The third plastic baggie was open and contained twenty-three “dime bags” which were sealed with red tape.

      . Since we agree that this provided sufficient information upon which to fashion effective cross-examination, the confrontation clause of the United States Constitution was not violated.