author: OLSZEWSKI, Judge:

text:
    519 A.2d 983
    William EVANS, to the Use of ROADWAY EXPRESS, INC., and William Evans and Denise Evans, his wife v. James P. D’IORIO, M.D. Appeal of William EVANS, to the Use of ROADWAY EXPRESS, INC.
    Superior Court of Pennsylvania.
    Argued Oct. 23, 1986.
    Filed Jan. 5, 1987.

      F. Daniel Altland, Harrisburg, for appellant.
    John D. Nardine, Wilkes-Barre, for appellee.
    Before WIEAND, OLSZEWSKI and CERCONE, JJ.
   OLSZEWSKI, Judge:

This is an appeal from an order sustaining appellee’s preliminary objections in the nature of a demurrer to appellants’ amended complaint and entering judgment in favor of appellee and against appellant. Because we find error in the trial court’s decision, we reverse and remand.

This action was commenced by the filing of a praecipe of summons on October 7, 1985. After entry of a rule to file a complaint on November 22, 1985, a complaint naming William Evans, to the use of Roadway Express, Inc., as plaintiff was filed on December 13, 1985. Defendant-appellee filed preliminary objections on January 3,1986. Thereafter, on January 16, 1986, appellants filed an amended complaint, which added William and Denise Evans as plaintiffs and expanded into three separate counts.

The amended complaint alleges that on October 20, 1983, while engaged in his employment with Roadway Express, Inc. (“Roadway”), appellant William Evans came into contact with toxic material while handling part of a shipment of Basazol Yellow 46 and, as a result, suffered toxic burns or impairment of his hands. It is averred further that appellee, Dr. James P. D’lorio, treated Evans for said toxic burns and that during this treatment, appellee made various statements to Evans which allegedly were unwarranted by Evans’s condition and were “below the standard of care a competent and prudent physician would render.” (Amended complaint, paragraph 10.) The amended complaint then states that because of appellee’s treatment, Evans suffered post-traumatic stress syndrome and other psychological impairments which prevented his return to work.

In Count I, Roadway seeks to recover additional workmen’s compensation benefits which it paid to Evans as a result of Evans’s disability. Counts II and III represent individual claims by appellants William and Denise Evans, respectively.

On February 4, 1986, appellee filed preliminary objections in the nature of a demurrer to the amended complaint alleging, inter alia, that the cause of action was barred by the applicable statute of limitations. The trial court, in an order dated May 9, 1986, sustained appellee’s preliminary objections and entered judgment in his favor.

At issue on appeal is the trial court’s decision to sustain the preliminary objections based upon appellee’s statute of limitations defense. The trial court sustained the demurrer because “Roadway failed to timely file a legally sufficient complaint.” (Trial court opinion at 4.) This holding was improper, however, because the Pennsylvania Rules of Civil Procedure do not permit the bar of a statute of limitations to be raised by preliminary objections. See Pa.R.Civ.P. 1017(b)(4). The Rules require instead that the affirmative defense of statute of limitations be pleaded under new matter. See Pa.R.Civ.P. 1030. Our Supreme Court recently cited these rules and confirmed our position in Kyle v. McNamara & Criste, 506 Pa. 631, 487 A.2d 814 (1985). For these reasons, appellee’s statute of limitations defense was not properly before the trial court on preliminary objections.

Appellee’s preliminary objections have also attacked the form of appellants’ verification and have averred that appellant William Evans has instituted suit against a party other than appellee to recover for injuries complained of in this action. These matters have not been determined by the trial court.

For the foregoing reasons, the order sustaining appellee’s preliminary objections based upon the bar of the statute of limitations is reversed, and the case is remanded to enable the trial court to consider and determine those preliminary objections which remain undecided.

Jurisdiction relinquished.

      . Relying on § 319 of the Pennsylvania Workmen’s Compensation Act, 77 P.S. § 671, and Reliance Ins. Co. v. Richmond Machine Co., 309 Pa.Super. 430, 455 A.2d 686 (1983), the trial court held:
      Roadway, in its own right, is incapable of bringing suit against defendant, under the facts of this case; however, the Evanses, with whom this cause of action properly lies, were not added as party plaintiffs until approximately two years and two months after the cause of action accrued. Thus, since the Evanses’ cause of action is barred by the statute of limitations applicable to personal injury cases, Roadway, in its own right, cannot maintain this action. Accordingly, defendant’s preliminary objections in the nature of a demurrer are sustained.
      Trial court opinion at 4-5.

      . Indeed, the trial court in this action acknowledged the existence of Pa.R.Civ.P. 1030, but chose to disregard it in the interest of a speedy resolution of this dispute. The language of Rules 1030 and 1017(b)(4) is clear and unambiguous, however, and therefore may not be disregarded. See Pa.R.Civ.P. 127(b).


source: Caselaw Access Project

author:
KELLY, Judge:
      BROSKY and ROBERTS, JJ.,

license: Public Domain

text:
    519 A.2d 984
    COMMONWEALTH of Pennsylvania v. Stephen P. LENINSKY, Appellant.
    Superior Court of Pennsylvania.
    Argued May 20, 1986.
    Filed Dec. 29, 1986.

      Arnold H. Cantor, Pittsburgh, for appellant.
    Paul H. Millin, District Attorney, Tionesta, for appellee.
    Before BROSKY, KELLY and ROBERTS, JJ.
   KELLY, Judge:

This appeal raises the question of whether a police checkpoint or roadblock set up for the purpose of checking licenses, registrations, inspection violations, or for drivers under the influence of alcohol violates state or federal proscriptions against unreasonable searches and seizures.

In Commonwealth v. Tarbert, 348 Pa.Super. 306, 502 A.2d 221 (1986) (allocatur granted August 20, 1986), President Judge Cirillo opined for a divided panel of this Court that all such roadblocks or checkpoint stops are per se unconstitutional under Article I, Section 8 of the Pennsylvania Constitution. Therefore, the order and judgment of sentence is vacated and the trial court is directed to discharge the appellant.

Although I believe the Tarbert reasoning is factually and legally flawed, nonetheless, I would find that the procedures utilized in the instant case were constitutionally infirm. Consequently, I agree with the result reached by application of the Tarbert rule. I set forth my reasoning and concerns at length.

FACTS

On March 1, 1985, three officers of the Pennsylvania State Police conducted a traffic check on Route 62 in Tionesta Borough, Forest County, Pennsylvania. All vehicles traveling in either direction were stopped and the operators were asked to produce their licenses and vehicle registration cards. The field officers were acting pursuant to the instructions of the station commander that a two hour safety check should be held once a week, weather permitting. The date, time, site, and actual duration of the safety check were left to the discretion of the ranking field officer. There were no written guidelines or regulations for the traffic check, nor does the record indicate that specific instructions regarding the operation of the traffic check were given to the field officers by supervisory personnel.

Trooper Daniel Molitoris testified that he and two other uniformed officers of the Pennsylvania State Police selected a location, pulled their cars to the side of the highway and flagged down all cars traveling in either direction. The record does not include any evidence regarding the volume of traffic, safety precautions taken, notice to the public, or advance warning to the motorists approaching the traffic check.

Appellant, Stephen P. Leninsky, passed through the traffic check at approximately 1:00 p.m. Appellant failed to produce a driver’s license when requested to do so. A subséquent check with the Department of Motor Vehicles revealed that appellant’s driver’s license was under suspension. The appellant was charged with Driving Under Suspension, D.U.I. Related, in violation of 75 Pa.C.S.A. § 1543(b).

On May 2, 1985, appellant was found guilty by the District Magistrate, fined one thousand nineteen dollars and fifty cents ($1,019.50), and sentenced to ninety (90) days imprisonment. Notice of appeal from the summary criminal conviction was filed on May 28, 1985. A hearing de novo was conducted before the Honorable Robert L. Wolfe on July 15, 1985. On August 14, 1985, the appeal was dismissed. On August 20, 1985, appellant filed post-trial motions. These motions were argued and denied on September 23, 1985. This appeal followed.

Appellant contends that the trial court erred in failing to dismiss the charges because: 1) the stop was in violation of the appellant’s rights under the Fourth Amendment of the U.S. Constitution; 2) the stop was in violation of the appellant’s rights under Article 1, Section 8 of the Pennsylvania Constitution; and 3) the stop was invalid because under the Vehicle Code the officer did not have authority to stop appellant’s vehicle.

I.

Both the United States and Pennsylvania Constitutions protect citizens from unreasonable searches and seizures. U.S. Const. Amend. 4; Pa. Const. Art. 1, Section 8. I note that while federal law establishes the minimum constitutional protections applicable to all citizens, “the state has power to impose standards on searches and seizures higher than those required by the Federal Constitution.” Commonwealth v. DeJohn, 486 Pa. 32, 43, 403 A.2d 1283, 1288 (1979), citing Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967).

The protections of the state and federal constitutions apply where a police office stops a vehicle, thereby seizing both the vehicle and its occupants for the duration of the detention. Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Commonwealth v. Pollard, 450 Pa. 138, 299 A.2d 233 (1973). However, “one’s expectation of privacy in an automobile and freedom in its operation are significantly different from the traditional expectation of privacy and freedom in one’s residence.” United States v. Martinez-Fuerte, 428 U.S. 543, 561, 96 S.Ct. 3074, 3084, 49 L.Ed.2d 1116 (1976); see also Commonwealth v. Shaffer, 447 Pa. 91, 103, 288 A.2d 727, 734 (1972). “One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one’s residence or as the repository of personal effects.” Cardwell v. Lewis, 417 U.S. 583, 590, 94 S.Ct. 2464, 2469, 41 L.Ed.2d 325 (1984). “Automobiles, unlike homes, are subject to pervasive and continuing, governmental regulation and controls, including periodic inspection and licensing requirements.” South Dakota v. Opperman, 428 U.S. 364, 368, 96 S.Ct. 3092, 3096, 49 L.Ed.2d 1000 (1976). Nonetheless, “[a]n individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are subject to government regulation.” Delaware v. Prouse, 440 U.S. 648, 662, 99 S.Ct. 1391, 1400, 59 L.Ed.2d 660 (1979).

“The essence of the Fourth Amendment to the federal constitution, and Article I, Section 8, of the Pennsylvania Constitution, is reasonableness; these provisions provide protection against unreasonable searches and seizures.” In re Gartley, 341 Pa.Super. 350, 361, 491 A.2d 851, 857 (1985) (emphasis supplied); see also Zurcher v. Stanford Dailey, 436 U.S. 547, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978); Commonwealth v. Tann, 500 Pa. 593, 459 A.2d 322 (1983).

In Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973), our Supreme Court explained that, “there is no ready made test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entail.” 453 Pa. at 111, 307 A.2d at 878, quoting Terry v. Ohio, 392 U.S. 1, 20-21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). In Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), the United States Supreme Court stated:

Consideration of the constitutionality of such seizures involves a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty____ A central concern in balancing these competing considerations in a variety of settings has been to assure that an individual’s reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field.

433 U.S. at 50-51, 99 S.Ct. at 2640. (Emphasis added).

II.

In Commonwealth v. Tarbert, supra, President Judge Cirillo opined for a divided panel of this Court that:

We hold that roadblocks, which without probable cause or a reasonable suspicion that a crime has been or is being committed, stop all vehicles travelling on a public highway for the purposes of checking licenses, registrations, inspection violations, and for drivers operating vehicles under the influence of alcohol are so violative of our citizen’s rights that they must be declared unconstitutional.

348 Pa.Superior Ct. at 316, 502 A.2d at 226. The majority stated, without elaboration, that the decision was based on “bona fide, separate, adequate, and independent state grounds.” 348 Pa.Superior Ct. at 309, 502 A.2d at 222. The majority reasoned:

In Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973), the Court held that in order to stop a single vehicle to check compliance with the Motor Vehicle Code, a police officer ‘must have probable cause based on specific facts which indicate to him either the vehicle or the driver are in violation of the code.’ We can find no compelling reason to deviate from this rule in situations involving a systematic stopping of vehicles.

348 Pa.Superior Ct. at 313, 502 A.2d at 224-225 (citations omitted). I, on the other hand, find compelling reasons not to apply the rule announced in Swanger to cases involving systematic, non-discriminatory, nonarbitrary roadblocks.

First, our Supreme Court in Commonwealth v. Swanger, supra, emphasized that its opinion “should not be read as applicable to systematic stops or roadblocks for detection of Motor Vehicle Code violations.” 453 Pa. at 110 & n. 3, 307 A.2d at 877 & n. 3. Secondly, the Court expressly distinguished the random seizure in Swanger from the searches in See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967) and Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), stating:

In See, the ‘search’ was part of a routine, periodic citywide canvas of commercial buildings, and in Camara the ‘search’ was part of an annual inspection of dwelling houses. These situations lack the arbitrariness inherent in the present case. The ‘searches’ in See and Camara were part of a systematic plan, whereas, the seizure here lacked any semblance of being part of a systematic plan.

453 Pa. at 114, 307 A.2d at 879 (footnote omitted). The absence of “absolute, unreviewable discretion and authority” distinguishes roadblocks and checkpoint stops from the random traffic stop which Swanger declared unconstitutional.

III.

Although the state may impose a higher standard of reasonableness than mandated by federal law, DeJohn, supra, the test is similar under both the state and federal constitutions; we must balance the governmental interests served by the seizure, the effectiveness of the seizure in serving the governmental interest, and the severity of the intrusion, on personal liberty caused by the seizure. See Brown v. Texas, supra; Commonwealth v. Swanger, supra.

A. GOVERNMENTAL INTEREST

1) License and Registration

The Commonwealth of Pennsylvania has a vital interest in ensuring that only those qualified are permitted to operate motor vehicles, and that their vehicles are fit for safe operation. Hence, license, registration, inspection, and proof of financial responsibility requirements protect and enforce the state’s compelling interest in maintaining appropriate highway safety standards. Delaware v. Prouse, 440 U.S. at 658-659, 99 S.Ct. at 1398-99. See also Maurer v. Boardman, 336 Pa. 17, 7 A.2d 466 (1938), aff'd 309 U.S. 598, 60 S.Ct. 726, 84 L.Ed. 969 (1939) (affirming states’ right to regulate public highways).

2) Drunk Driving

The Commonwealth also has a vital interest in deterring, identifying, and removing drunk drivers from our highways; they present a threat to other motorists, pedestrians, and themselves. “The carnage caused by drunk drivers is well documented and needs no detailed recitation here.” South Dakota v. Neville, 459 U.S. 553, 558, 103 S.Ct. 916, 919, 74 L.Ed.2d 748 (1983). “The slaughter on the highways of our Nation exceeds the death toll of all our wars.” Perez v. Cambell, 402 U.S. 637, 657, 91 S.Ct. 1704, 1715, 29 L.Ed.2d 233 (1971) (Blackmun, J., concurring). In the past decade, over 250,000 people have died in alcohol related accidents. Each year, 708,000 people are injured, 74,000 seriously. Estimates of the economic loss caused by the drunken driver range from 21 to 24 billion dollars per year. In 1981, 950 people were killed in alcohol related accidents on Pennsylvania highways. From 1972 to 1981, the number of alcohol related fatal accidents in Pennsylvania increased 154%. It would be feckless to argue that the Commonwealth’s interest in ending this carnage is less than paramount.

B. EFFECTIVENESS

Next we must consider the effectiveness of checkpoints and roadblocks in promoting those governmental interests. In Commonwealth v. Tarbert, supra, the majority opined:

... we cannot sanction ‘random seizures’ based on ‘luck and hunch’ alone ... which inconvenience citizens without any justification of substance.’ State v. Kirk, 202 N.J. Super. 28, 58, 493 A.2d 1271, 1288 (1985) (citations omitted). In short, systematic and random roadblocks are nothing more than fishing éxpeditions which ‘constitute police seizures and detention in the absence of the faintest scintilla of criminal wrongdoing.’ Rodgers, [The Drunk Driving Roadblock: Random Seizures or Minimal Intrusion?, 21 CRIM.L.BULL. 197, 214 (1985)].

348 Pa.Superior Ct. at 314, 502 A.2d at 225. However, the weight of authority contradicts this assessment of the effectiveness of checkpoints and roadblocks.

1) License and Registration

In Martinez-Fuerte, supra, the Supreme Court stated: Stops for questioning, not dissimilar to those involved here, are widely used at state and local levels to enforce laws regarding driver’s licenses, safety requirements, weight limits and similar matters ... this practice of stopping automobiles briefly for questioning has a long history evidencing its utility, and is accepted by motorists as incident to highway use.

428 U.S. at 560 n. 14, 96 S.Ct. at 3084 n. 14. (Emphasis added).

Although the Supreme Court later declared random stops of individual vehicles unconstitutional, it explained that states were free to develop “methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion.” Prouse, 440 U.S. at 663, 99 S.Ct. at 1401. The Supreme Court went on to suggest that “[questioning all oncoming traffic at a roadblock-type stop is one possible alternative.” Id. In Texas v. Brown, supra, the Supreme Court held that the appellant’s initial stop at a routine driver’s license checkpoint was valid. 460 U.S. at 739, 103 S.Ct. at 1541.

The facts of the instant case amply demonstrate the need for spot check procedures. The appellant’s driver’s license was suspended for Driving While Intoxicated. In spite of the severe penalties mandated for Driving While Under Suspension, D.U.I. Related (75 Pa.C.S.A. § 1543(b)), the appellant elected to continue driving. Because Driving While Under Suspension is a status offense rather than an observable act offense, it is not detectable by traditional, less intrusive means. Without both an actual and a perceived risk of detection, license suspensions become a toothless sanction regardless of the penalties mandated upon conviction. On the other hand, checkpoint and roadblock spot checks can provide an effective deterrent and detection mechanism, while at the same time removing the unbridled discretion of random traffic stops.

License and registration checkpoints also help to combat the menace of drunk driving. During a motorist’s brief detention at the checkpoint, trained officers are placed in a position to legally observe drivers and check for signs of intoxication. Once the vehicle is legally stopped, there is “no legitimate expectation of privacy, ..., shielding that portion of the interior of an automobile which may be viewed from outside the vehicle by either an inquisitive passerby or diligent police officers.” Texas v. Brown, 460 U.S. at 740, 103 S.Ct. at 1542; see also New York v. Class, 475 U.S. 106, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986). If the officer observes signs or symptoms of intoxication, he may properly detain the suspect for performance of appropriate behavioral or coordination tests. Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977).

2) Drunk Driving

“One of the most effective methods of detection and deterrence of drunk drivers is the DWI roadblock or ‘sobriety checkpoint.’ ” J.W. Hall, Jr., Search and Seizure, § 10:31.1 at 361 (Cum.Supp.1986). Sobriety checkpoints differ from license and registration checkpoints in that the deterrence, detection and removal of drunk drivers is the primary rather than secondary purpose of the stop. Additionally, they differ in that the justification of the sobriety checkpoint rests on the Commonwealth’s specific interest in deterring, detecting and removing drunk drivers from Pennsylvania highways rather than general interests in highway safety.

Sobriety checkpoints serve the public interest in two ways: 1) they serve as a deterrent to potential drunk drivers by increasing the actual and perceived risk of detection; and 2) they aid in apprehending and removing drunk drivers from the road. Use of sobriety checkpoints and roadblocks for these purposes is recommended by the National Highway Traffic Safety Administration (NHTSA), the Presidential Commission on Drunk Driving, the International Association of Chiefs of Police, and the National Transportation Safety Board (NTSB).

A 1984 safety study by the National Transportation Safety Board indicated that without sobriety checkpoint programs, many alcohol impaired drivers believe they can avoid police detection by driving carefully. However, with the use of sobriety checkpoints, the general public’s perception of the probability of detection and sanction is increased. I note that the public perception has a strong basis in fact. While those drunk drivers arrested by roving patrols average a .169 to .20 blood alcohol content (BAC) level, drunk drivers arrested at Delaware sobriety checkpoints averaged a .14 BAC level. In light of the fact that a driver with a .10 BAC level has a six times greater likelihood of causing an accident than a sober driver, the effectiveness of sobriety-checkpoints in detecting and removing drunk drivers with dangerous but significantly lower BAC levels is significant.

Furthermore, studies in Maryland and Delaware have indicated that the uses of sobriety checkpoints have led to significant decreases in alcohol related accidents, injuries, and fatalities. Longer and more comprehensive studies of the effect of sobriety checkpoints programs in Australia, France, Canada, and Sweden indicate that: 1) public perception of the risk of arrest increased; 2) the percentage of drivers with illegal BAC levels decreased; and 3) alcohol related accidents, injuries and fatalities decreased.

It is important to note that traditional roving patrols searching for observably impaired drivers and sobriety checkpoints are not competing or mutually exclusive alternatives. To the contrary, the National Transportation Safety Board and other organizations urging the use of sobriety checkpoints emphasize that they are efficient and effective only when used in conjunction with existing efforts as part of a comprehensive program of education, deterrence, interdiction and sanction.

C. DEGREE OF INTRUSION

In Commonwealth v. Tarbert, supra, the majority reasoned that the “intrusion upon the individual in systematic stops is no less an intrusion because of the mere fact that all vehicles traveling on the highway are stopped.” 348 Pa.Superior Ct. at 314, 502 A.2d at 225. Again, I cannot agree. To the contrary, “[t]he circumstances surrounding a checkpoint stop and search are far less intrusive than those attending a roving patrol stop. Roving patrols often operate at night on seldom traveled roads, and their approach may frighten motorists. At traffic checkpoints, the motorist can see that other vehicles are being stopped, he can see visible signs of the officer’s authority, and he is much less likely to be frightened or annoyed by the intrusion.” United States v. Ortiz, 422 U.S. 891, 894-895, 95 S.Ct. 2585, 2587-88, 45 L.Ed.2d 623 (1975). Moreover, the “regularized manner in which established checkpoints are operated is visible evidence, reassuring to law-abiding motorists, that stops are duly authorized and believed to serve the public interest.” Martinez-Fuerte, supra, 428 U.S. at 559, 96 S.Ct. at 3083.

IY.

Based upon the foregoing, I conclude that governmental interests in licensing, registration, and highway safety in general, and specifically in deterring, detecting, and removing drunk drivers from Pennsylvania highways are vital and compelling. Traditional methods are inadequate to protect those interests. Checkpoints and roadblocks have been proven to be effective tools in protecting those interests when used as part of a comprehensive highway safety program. Consequently, I question the reasoning of the majority in Tarbert. See Tarbert, 348 Pa.Superior Ct. at 314, 502 A.2d at 225 (Wickersham, J., dissenting); Wysocki v. Dept. of Transportation, 91 Pa.Cmwlth. 42, 45-46, 496 A.2d 897, 899 (1985) (allocatur granted) (stop at license and registration check met standards in Prouse, license suspension under 75 Pa.C.S.A. § 1547(b) affirmed); Commonwealth v. Berry, 305 Pa.Super. 8, 14 n. 4, 451 A.2d 4, 7 n. 4 (1982) (stop and weighing of trucks “alternately justifiable as systematic stops____”); see also Commonwealth v. Edwards, 355 Pa.Super. 311, 317 n. 5, 513 A.2d 445, 448 n. 5 (1986) (non-arbitrary systematic roadblock passes federal constitutional muster); Commonwealth v. Dannaker, 352 Pa.Super. 611, 505 A.2d 1030 (1985) (Per Curiam Order and Memorandum per Wickersham, J., C.M. per Brosky, J.) (Allocatur granted) (non-arbitrary systematic roadblock passes federal constitutional muster).

While this Court should not hesitate to invalidate a roadblock or checkpoint which involved an unreasonable intrusion or an impermissible exercise of unbridled discretion by field officers, neither should we prohibit non-arbitrary systematic roadblocks on a wholesale basis.

Y.

Nonetheless, I agree that the procedures utilized in the instant case were constitutionally infirm. Factors which should be considered in determining the constitutionality of license and registration or sobriety checkpoint procedures include: the role of supervisory personnel; the degree of discretion vested in the field officers; the reasonableness and specificity of the established mode of operation; the reasonableness of site selection procedures; the time and duration of the operation; the average length of the initial detention; the reasonableness of secondary detention procedures; the indicia of the official nature of the roadblock; the maintenance of proper safety conditions (as to both motorists and officers); the publicity preceding implementation; the comprehensive nature of the local highway safety program; and any other factors relevant under the particular circumstances. See generally Ingersoll v. Palmer, supra; State v. Deskins, supra; Champane, J., The Constitutionality of Drunk Driver Roadblocks, FBI Law Enforcement Bulletin (July 1984); NHTSA, The Use of Safety Checkpoints for DWI Enforcement, supra, at 11-14.

In State v. Deskins, supra, the Kansas Supreme Court stated:

Not all factors need to be favorable to the state, but all which are applicable to a given roadblock should be considered. Some of course, such as unbridled discretion of the officer in the field, would run afoul of Prouse regardless of favorable factors.

673 P.2d at 1185. (Emphasis added). I agree, and would find that in the instant case the degree of discretion vested in the field officers rendered the procedures constitutionally infirm. The field officers were permitted to choose the time, date, and location of the safety check. Moreover, there were no written guidelines or procedures, and the record does not indicate that adequate instructions regarding the operation of the safety check were given by supervisory personnel. This is precisely the type of unbridled discretion which the Pennsylvania and United States Supreme Courts have condemned. See Prouse, supra; Swanger, supra. Because the initial stop was illegal, all the evidence derived therefrom must be suppressed. Swanger, 453 Pa. at 114-115, 307 A.2d at 879, citing Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

Finally, it is important to note that not all that is constitutional is wise. While it is for the courts to ensure that police practices meet minimum constitutional standards, it is for law enforcement agencies, the legislature, and ultimately the people of this Commonwealth to debate the wisdom of such procedures and the additional conditions, if any, under which they may be employed.

BROSKY and ROBERTS, JJ., concur.

BROSKY and ROBERTS, JJ.,

concurring:

In Commonwealth v. Tarbert, 348 Pa.Super. 306, 502 A.2d 221 (1986) (allocatur granted), this Court held that random roadblocks violate Article I, § 8 of the Pennsylvania Constitution. In our view, Tarbert clearly controls this case. Therefore, we concur only in the result.

      . Judge Wickersham stated in his Dissenting Opinion that:
      I would recognize the validity of non-discriminatory, non-arbitrary roadblocks. See Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983); Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). I read nothing in the Pennsylvania Constitution that calls for a different interpretation than that espoused by our United States Supreme Court in the above cited cases.
      348 Pa.Superior Ct. at 317, 502 A.2d at 226 (parallel citations omitted).

      . Swanger, 453 Pa. at 113, 307 A.2d at 878.

      . See H.R.Rep. No. 867, 97th Cong., 2d Sess. 7 (1982), reprinted in 1982 U.S.Code Cong. & Ad.News 3367; Federal Legislation to Combat Drunk Driving, Hearing on S.671, S.672, S.2158 Before the Subcomm. on Surface Transp. of the Senate Comm, on Commerce, Science & Transportation, 97th Cong., 2d Sess. 65 (1982); Fell, J., Alcohol Involvement in Traffic Accidents, (May 1982); NHTSA, Fatal Accident Reporting System 1980 Report (October 1981).

      . Governor’s DUI Task Force Report (October 14, 1982 Harrisburg, PA); The New Pennsylvania Drunk Driving Law, 87 DICKINSON L.REV. 805, 805 (1983).

      . This reasoning is equally applicable to enforcement of 75 Pa.C.S.A. §§ 1101, 1301, 1311, 1371, 1372, 1374, 1375, 1501, 1505, 1511, 1512, 1514, 1532, 1533, 1539, 1540, 1542, 1543, 1547(b), 1573, 1574, 1772, 1773, 4703, 7101, and 7102. I note that violation of 75 Pa.C.S.A. § 3731(a)(4) is also a status offense. At or near the legal limit, an intoxicated driver may not feel or appear intoxicated. Nonetheless, scientific research has established that such drivers are dangerous; and the General Assembly has decreed that a .10 BAC level is sufficient to support conviction.

      . While many things can provide an experienced officer with grounds to suspect that a driver may be intoxicated, I would take judicial notice of the following symptoms or signs of alcohol intoxication: 1) odor of breath; 2) flushed appearance; 3) lack of muscular coordination; 4) speech difficulties; 5) disorderly or unusual conduct; 6) mental or visual difficulties; 7) sleepiness; 8) dizziness; and 9) nausea.

      . NTSB, Deterrence of Drunk Driving: the Role of Sobriety Checkpoints and Administrative License Revocations, at 20-21,. 31 (Washington, D.C. April 3, 1984); NHTSA, The Use of Safety Checkpoints for DWI Enforcement, at 1-2 (Washington, D.C. September 1983); NHTSA, Dealing With Drinking Drivers: Guidelines for Motor Vehicle Administrators, at 89 (Washington, D.C.1986).

      . NTSB, Deterrence of Drunk Driving, supra, at 9, citing A. William, et al., Deterrent Effects of Roadblocks on Drinking and Driving, Insurance Institute for Highway Safety (Washington, D.C.1984).

      . See State v. Stroman, Nos. IN83-02-0055T, N83-04-0132T, and N8309-0620T, Slip Opinion at 8 n. 4 (Del.Super.Ct.1984); Borkstein, R., Problems in Enforcement, Adjudication, and Sanctioning, at 655-662 (1983); see generally Alcohol Drugs and Driving: Hearing to Examine What Effect Alcohol & Drugs Have on Individuals While Driving, Before the Subcomm. on Alcoholism & Drug Abuse of Senate Comm, on Labor & Human Resources, 97th Cong., 2d Sess. 1 (1982).

      . Traffic Control Section, DUI Monthly Report, Del. State Police (Aug. 1983); Field Operations Bureau, Sobriety Checkpoint Program Evaluation Report, Md. State Police, Traffic Planning Unit (April 20, 1983).

      . NTSB, Deterrence of Drunk Driving, supra at 7-8 & nn. 12-18 (citing reports).

      . Id., at 2.

      . This observation is supported by the results of surveys conducted in conjunction with sobriety checkpoints in Delaware, Maryland, and Washington, D.C. which revealed that motorists stopped at such checkpoints overwhelmingly supported continued use of sobriety checkpoints (Delaware 87.5%, Maryland 86%, and Washington, D.C. 88%). See NTSB, Deterrence of Drunk Driving, supra, at 9-10.

      . I note that the degree of intrusion in a sobriety check is no greater than that present in a license check. Drivers are stopped in the same manner and detained for the same amount of time. That either stop may give rise to reasonable suspicion or probable cause to support further detention does not alter the intrusiveness of the initial stop.

      . The courts of our sister states have uniformly rejected a per se rule. See e.g. State v. Superior Ct., 143 Ariz. 45, 691 P.2d 1073 (1984); Garrett v. Goodwin, 569 F.Supp. 106 (E.D.Ark.1982) (applying Arkansas law); Ingersoll v. Palmer, 175 Cal.App.3d 1028, 221 Cal.Rptr. 659 (1985) (Review granted April 3, 1986); People v. Andrews, 173 Colo. 510, 484 P.2d 1207 (1971); State v. Smolen, 4 Conn.Cir. 385, 232 A.2d 339 (1967), cert. denied, 389 U.S. 1044, 88 S.Ct. 787, 19 L.Ed.2d 835 (1967); State v. Stroman, supra; State v. Jones, 483 So.2d 433 (Fla. 1986); State v. Golden, 171 Ga.App. 27, 318 S.E.2d 693 (1984); People v. Bartley, 109 Ill.2d 273, 93 Ill.Dec. 347, 486 N.E.2d 880 (1985); State v. Garcia, 481 N.E.2d 148 (Ind.App.1985); State v. Riley, 377 N.W.2d 242 (Iowa App.1985); State v. Deskins, 234 Kan. 529, 673 P.2d 1174 (1983); Kinslow v. Commonwealth, 660 S.W.2d 677 (Ky.Ct.App.1983), cert. denied, 465 U.S. 1105, 104 S.Ct. 1606, 80 L.Ed.2d 136 (1984); State v. Cloukey, 486 A.2d 143 (Me.1985); Little v. State, 300 Md. 485, 479 A.2d 903 (1984); Commonwealth v. Trumble, 396 Mass. 81, 483 N.E.2d 1102 (1985); Miller v. State, 373 So.2d 1004 (Miss.1979); State v. Crom, 222 Neb. 273, 383 N.W.2d 461 (1986); State v. Koppel, 127 N.H. 286, 499 A.2d 977 (1985); State v. Coccomo, 177 N.J.Super. 575, 427 A.2d 131 (1980); State v. Bloom, 90 N.M. 192, 561 P.2d 465 (1977); People v. Scott, 63 N.Y.2d 518, 473 N.E.2d 1, 483 N.Y.S.2d 649 (1984); State v. Trapper, 48 N.C.App. 481, 269 S.E.2d 680 (1980); State v. Goehring, 374 N.W.2d 882 (N.D.1985); State v. Goines, 16 Ohio App.3d 168, 474 N.E.2d 1219 (1984); State v. Smith, 674 P.2d 562 (Okla.Crim. 1984); State v. Shankle, 58 Or.App. 134, 647 P.2d 959 (1982); State v. Olgaard, 248 N.W.2d 392 (S.D.1976); Brown v. State, 617 S.W.2d 196 (Tex.Cr.App.1981), rev’d on other grounds sub nom. Texas v. Brown, supra; State v. Martin, 145 Vt. 562, 496 A.2d 442 (1985); Lowe v. Commonwealth, 230 Va. 346, 337 S.E.2d 273 (1985); State v. Frisby, 245 S.E.2d 622 (W.Va.1978), cert. denied, 439 U.S. 1127, 99 S.Ct. 1043, 59 L.Ed.2d 87 (1978); see also LaFave, Search and Seizure, Vol. 3, § 10.8 a, g (1978 & Pocket Part 1986); Ringel, Searches & Seizures, Arrests and Confessions, § 11.6 (1986); Hall, Search and Seizure, § 10:31.1 (Cum.Supp.1986).

      . Advance publicity simultaneously decreases intrusiveness and increases effectiveness; motorists will be more wary and less surprised. Its importance should not be overlooked. Accord State v. Ekstrom, 136 Ariz. 1, 663 P.2d 992, 1001 (1983); State v. Deskins, 673 P.2d at 1182; Jones v. State, 459 So.2d at 1076. Of course, it is the use of such procedures which should be announced, and not the precise time and locations where they will be used.

      . In order to forestall repeated litigation and prevent abuse, it may be advisable that minimum uniform standards for the operation of vehicle roadblocks be adopted and established by the legislature, attorney general, or another appropriate state official, rather than leaving the determination thereof to local officials. See Ingersoll v. Palmer, supra (guidelines announced in Attorney General’s Opinion, 67 Ops. Cal. Atty. Gen. 471 (1984)); State v. Garcia, supra (guidelines developed by county police departments adopted by State Police Department); State v. Trumble, supra (guidelines developed by Secretary of Public Safety in consultation with other interested parties); accord State v. Deskins, supra (recommending attorney general or legislative action); State v. Jones, supra (requiring written set of uniform guidelines).


author: TAMILIA, Judge: WIEAND, Judge,

text:
    519 A.2d 994
    Joni MAGEE, Appellant, v. Richard MAGEE.
    Superior Court of Pennsylvania.
    Submitted July 7, 1986.
    Filed Jan. 8, 1987.

      John V. Ryan, Norristown, for appellant.
    Idee C. Fox, Philadelphia, for appellee.
    Before WIEAND, TAMILIA and ROBERTS, JJ.
   TAMILIA, Judge:

This appeal was taken by the former wife from the dismissal of an equity complaint to enforce a separation agreement.

Appellant alleges the agreement was not incorporated into the divorce decree and concerns matters agreed upon other than support of the children as the support matters were subject to court order. The court granted appellee/husband’s preliminary objection, agreeing with the appellee the issues were being considered in a pending support proceeding.

The age old issue presented here is whether matters subject to a separation agreement, and overlapping with issues involving a support order, should be heard in different branches of the court. Judge John Meade determined that the issues presented by a complaint in equity were more properly issues of law to be determined in an action in assumpsit. Further, he indicated that since issues raised in the equity complaint, relating to college expenses, medical expenses and arrearages, were the same issues subject to disposition in a concurrent proceeding before Judge Rosenwald in the Family Court, the equity action should be consolidated with the support action. He failed, however, to produce an Order to that effect and simply granted the preliminary objection and dismissed the complaint.

While no Opinion was filed by the trial court, nor did we receive a brief from appellee, the issues are clearly raised by appellant/wife and thoroughly discussed on the record during hearing on the preliminary objection.

While the agreement provides for its enforcement in equity, parties cannot confer jurisdiction by their own action. The proper remedy to enforce a separation agreement is an action in assumpsit. In Hollman v. Hollman, 347 Pa.Super. 289, 500 A.2d 837 (1985), we said:

... [Agreements, whether they be separation, antenuptial, postnuptial or support, are instruments of contract in which the court has no involvement. None of the elements of due process, court review and appealability are involved in agreements such as these, which are private undertakings between two parties, each having responded to the “give and take” of negotiations and bargained consideration. As such, they are governed by the law of contracts. Steuart v. McChesney, [498 Pa. 45, 444 A.2d 659 (1982) ], Brown v. Hall, [495 Pa. 635, 435 A.2d 859 (1981) ], Litwack v. Litwack, [289 Pa.Super. 405, 433 A.2d 514 (1981)], VanKirk v. VanKirk, 336 Pa.Super. 502, 485 A.2d 1194 (1984). This means, of course, they are not modifiable unilaterally; a court cannot remake or modify such an agreement as it would be the taking of property without due process of law. Also, such an agreement is solely enforceable by an action in assumpsit, (citations omitted)____

Id. 347 Pa.Superior Ct. at 300, 500 A.2d at 843.

... Thus, it is apparent there are three types of agreements possible in Pennsylvania law: 1) separation agreements unrelated to any court involvement, 2) support agreements inherent in the support procedures and resulting in a court order incorporating an agreement (Pa. R.C.P. 1910.11, 1910.12), and 3) voluntary alimony agreements, entered into prior to the divorce but incorporated in the divorce decree. (See 23 P.S. § 401, 502, 503 and Pa.R.C.P. 1920.31, allowing support proceedings, and Pa. R.C.P. 1920.52, which follow rules as to civil actions and not support).
The effect is that a separation contract is not enforceable pursuant to court procedures under the support rules or the Divorce Code; support agreement orders are enforceable pursuant to the support rules, and alimony agreements incorporated in a decree are enforceable through the Divorce Code. This includes in personam actions for support under 48 P.S. § 132, which are enforced by proceedings pursuant to § 1910.20-1910.23, as with other civil support actions. There is one exception in that any order for support, against either husband or wife, can be enforced by an in rem proceeding pursuant to 48 P.S. § 133, 136-141. See Stein v. Stein, 487 Pa. 1, 406 A.2d 1381 (1979).

Id. 347 Pa.Superior Ct. at 305, 500 A.2d at 845.

If the action had properly been captioned in assumpsit, the overlapping jurisdiction between the matters complained of and the proceeding in the Family Court Division on the same issue would require, for the sake of judicial economy and to avoid conflicting and unreasonable orders, that they be consolidated in one court to be determined by one judge. Since we do not have before us the record in the support proceeding, we cannot determine if there is an overlap which would require an election of remedies.

We have experienced similar, almost insoluable, difficulties with other facets of family law. See Marinello v. Marinello, 354 Pa.Super. 471, 512 A.2d 635 (1986) (partition and equitable distribution to be consolidated); Gantz v. Gantz, 338 Pa.Super. 528, 488 A.2d 17 (1985) (bifurcation in divorce and property distribution); Hollman, supra (jurisdiction in separation agreements). The legislative intent, derived from Article Y of the Pennsylvania Constitution, establishing divisions of the court through which jurisdiction shall be exercised, as reflected by the Divorce Code of 1980, 23 P.S. 101 et seq. and Pa.R.C.P. 1910 et seq., requires that we consolidate such matters whenever possible. While the Divorce Code speaks of the jurisdiction for matters relating to divorce, custody and property rights lying in the Court of Common Pleas, § 101, § 301 and § 1910.4 of Pa.R.C.P. require all actions of support to be brought in the Domestic Relations Section. The Constitution and accompanying schedule to the Judicial Article assigns that jurisdiction to the Family Court Divisions of the Court of Common Pleas of Philadelphia provides:

Sched. Art. 5
§ 16
(q) The court of common pleas through the family court division of the court of common pleas shall exercise jurisdiction in the following matters:
(i) Domestic Relations: desertion or nonsupport of wives, children and indigent parents, including children born out of wedlock; proceedings for custody of children; divorce and annulment and property matters relating thereto.

The Family Court Division has all the powers that can be exercised by a court of common pleas. The need to have all matters relating to family problems directed to this specialized division is obvious, particularly when there are different claims relating to the same issue, as is the case here. Obviously, the Family Division judge is equally competent to decide the action in assumpsit, if properly brought, relating to support, medical expenses and education, founded on contract law under a separation agreement, as he is to determine the same matters under statutory and common law, pursuant to a complaint in support.

The request of the court below, by letter dated March 14, 1986, to have the case remanded to the court below for further consideration, is denied, as consolidation of the equity (assumpsit) action with the support action pending in the family court, will provide an adequate review of all matters complained of. We are, however, remanding the case to the court below with directions that the complaint be transferred to Judge Rosenwald to be considered on its merits as an assumpsit matter with appropriate consideration being given to the effects, if any, of the pending support action.

Case remanded for further consideration consistent with this Opinion.

Jurisdiction relinquished.

WIEAND, J., files concurring and dissenting opinion.

WIEAND, Judge,

concurring and dissenting:

Joni Magee filed a complaint in equity seeking to enforce against Richard Magee the terms and provisions of a separation agreement. Richard Magee, the defendant, filed preliminary objections raising questions of jurisdiction in which he alleged that the plaintiff had an adequate remedy at law. In response to these preliminary objections, the trial court dismissed the complaint. The plaintiff appealed.

The trial court’s order was clearly erroneous and must be reversed. Pa.R.C.P. 1509(c) provides as follows:

(c) The objection of the existence of a full, complete and adequate nonstatutory remedy at law shall be raised by preliminary objection. If the objection is sustained, the court shall certify the action to the law side of the court. If not so pleaded, the objection is waived.

This rule is controlling of the issue now before us. In accordance therewith, I would reverse the order dismissing the complaint and remand for further proceedings.

Having reached this conclusion, I find it unnecessary— and also inadvisable — to establish a general rule, as the majority appears to do, that “[t]he proper remedy to enforce a separation agreement is an action in assumpsit.” (Opinion at p. 68). In some instances a money judgment may be an entirely inadequate remedy. Similarly, I do not join the majority’s direction to the trial court to order consolidation of the assumpsit action with the support action pending in the Family Court Division. Consolidation of actions is discretionary with the trial court, see Pa.R.C.P. 213(a), and I would not attempt to advise the court in advance with respect to the manner in which that discretion should be exercised.

      . While, in Hollman, supra, we have limited our discussion to matters which sound in assumpsit, we do not mean to limit the application of our findings to that form of action. Many matters subject to separation agreements and domestic relations court proceedings are based in equity, as indicated here, and they are equally cognizable in Family Court Division as opposed to Civil Division proceedings.

      . Even the trial judge has suggested that the case should be remanded for further consideration.


author: WIEAND, Judge:

text:
    519 A.2d 997
    DANIEL ADAMS ASSOCIATES, INC., Appellant, v. RIMBACH PUBLISHING, INC., and Richard J. Rimbach, Jr., Appellees. Daniel D. ADAMS, Appellee, v. RIMBACH PUBLISHING COMPANY and Richard J. Rimbach, Jr., Appellants. Daniel ADAMS, Appellant, v. RIMBACH PUBLISHING, INC., and Richard J. Rimbach, Jr., Appellees.
    Superior Court of Pennsylvania.
    Argued April 9, 1986.
    Filed Jan. 9, 1987.

      Bernard M. Berman, Media, for appellant (at 1647 and 1649) and appellee (at 1648).
    George J. McConchie, Media, for appellants (at 1648) and appellees (at 1647 and 1649).
    Before GRILLO, President Judge, and ROWLEY and WIEAND, JJ.
   WIEAND, Judge:

These cross-appeals require that we review post-trial orders entered by the trial court in actions for breach of an employment contract and for malicious interference with the contract existing between a sales representative and his employer, the publisher of a trade magazine. Although the history of the proceedings is lengthy and complex, the underlying issues concern (1) the terms of the contract of employment and (2) whether the vice president of a corporate employer who discharges an employee can be held individually liable for interfering with the contract of employment between the employee and the corporate employer. To place these issues in context, we begin the arduous task of reviewing the proceedings which brought this matter before the Superior Court for review.

In July, 1968, Daniel Adams was employed by Richard Rimbach, the publisher of a trade magazine, to solicit and sell advertising space. The written agreement provided that Adams was to be paid a commission of twenty percent of the net income derived from sales which he would make within the territory assigned to him. This agreement could be terminated by either party, with or without cause, upon written notice. In the event of termination by the employer, however, Adams was to be paid commissions for advertising which appeared in the three issues of the magazine published after his termination.

In 1972, the publishing firm was incorporated under the name of Rimbach Publishing, Inc. Rimbach’s son, Richard Rimbach, Jr., received fifty percent of the stock of the new corporation, was elected a director, and was named corporate vice president. In 1973, following incorporation, new contracts of employment were mailed to all sales representatives, including Adams. Accompanying the new contracts were transmittal letters requesting each sales representative to sign the contract and return it to the employer. The letter of transmittal stated that the contract would thereafter be executed by the corporate employer, who would mail an executed copy to each employee. Adams signed his contract and returned it to his employer. It was thereafter signed on behalf of the corporate employer by Richard Rimbach, Jr., the vice president. Adams denied ever receiving an executed copy of the agreement, although the employer’s evidence was that a copy had been given to Adams’ secretary. The provisions of this agreement called for the same commissions, i.e., twenty percent, and again permitted termination by either party upon written notice. By the terms of this agreement, however, if Adams were terminated by the employer, his recovery of commissions was limited to those accruing in the next edition of the publication to be printed following his dismissal. His territory was also reduced in size by the elimination therefrom of northern New Jersey.

In June, 1978, Adams’ contract was terminated, and written notice thereof was duly given. Adams contended that he had been discharged because he refused to discontinue doing work for Instrument Society of America, a competitor, who had previously recruited and taken from Rimbach a junior editor. The employer, on the other hand, premised Adams’ discharge upon a poor sales record. In any event, Adams was paid commissions in the amount of $18,085.49, which sum represented advertising sold by Adams for the next edition of the magazine published after his termination. A demand for an additional $16,000, which was alleged to be the amount of commissions accruing for the two succeeding editions of the publication, was rejected by the employer.

In 1979, Adams filed an action in assumpsit based on an alleged oral agreement of employment which he had made with Richard Rimbach, Sr. in 1968. In 1982, Adams filed a second action in which he alleged that the corporate employer had breached the written agreement which had been executed in 1968. In a second count of the 1982 complaint, Adams alleged that Richard Rimbach, Jr. and his corporation were liable for wrongful discharge and for maliciously interfering with Adams’ contract of employment. The two actions were consolidated for trial. At trial, the court directed a verdict in favor of all defendants in the 1979 action and on the second count of the 1982 action. The first count of the 1982 action was submitted to a jury, which returned a verdict in favor of Adams in the amount of $150,000. All parties filed motions for post-trial relief. The defendants requested judgment n.o.v. or, at least, a remittitur with respect to the damages awarded for breach of contract; and the plaintiff asked the court to remove the directed verdict and remand for a new trial on the second count of the 1982 complaint. The trial court denied the employer’s request for judgment n.o.v. but remitted that portion of the jury’s verdict which exceeded $16,000. With respect to the cause of action for wrongful discharge, the court denied Adams’ motion for new trial. However, the trial court vacated its directed verdict on the claim for malicious interference with contract and granted a new trial thereon. It is these actions by the trial court which are before us for review in this appeal.

I. MALICIOUS INTERFERENCE WITH CONTRACT

The cause of action for malicious interference with contract is defined in the Restatement (Second) of Torts § 766. This section of the Restatement, which was adopted by the Pennsylvania Supreme Court in Adler, Barish, Daniels, Levin and Creskoff v. Epstein, 482 Pa. 416, 393 A.2d 1175, 1 A.L.R.4th 1144 (1978), cert. denied, Epstein v. Adler, Barish, Daniels, Levin and Creskoff, 442 U.S. 907, 99 S.Ct. 2817, 61 L.Ed.2d 272 (1979), provides as follows:

One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the failure of the third person to perform the contract.

Restatement (Second) of Torts § 766. Essential to a right of recovery under this section is the existence of a contractual relationship between the plaintiff and a “third person” other than the defendant. See: Glenn v. Point Park College, 441 Pa. 474, 479, 272 A.2d 895, 898 (1971); Raab v. Keystone Insurance Co., 271 Pa.Super. 185, 189, 412 A.2d 638, 640 (1980). Accord: Wells v. Thomas, 569 F.Supp. 426, 434 (E.D.Pa.1983); Vuksta v. Bethlehem Steel Corp., 540 F.Supp. 1276, 1282 (E.D.Pa.1982), aff'd, 707 F.2d 1405 (3d Cir.), cert. denied, 464 U.S. 835, 104 S.Ct. 121, 78 L.Ed.2d 119 (1983); DuSesoi v. United Refining Co., 540 F.Supp. 1260, 1275 (W.D.Pa.1982). Cf. Yaindl v. Ingersoll-Rand Co., 281 Pa.Super. 560, 422 A.2d 611 (1980) (interpreting Restatement (Second) of Torts § 342B which creates a cause of action for intentional interference with prospective contractual relations). By definition, this tort necessarily involves three parties. The tortfeasor is one who intentionally and improperly interferes with a contract between the plaintiff and a third person. In the instant case, however, the contract was between the plaintiff and a corporate employer, and the named defendant is the officer and director who, while acting on behalf of the corporation, terminated plaintiffs contract of employment.

A corporation is a creature of legal fiction which can “act” only through its officers, directors and other agents. Lokay v. Lehigh Valley Cooperative Farmers, Inc., 342 Pa.Super. 89, 97, 492 A.2d 405, 408 (1985). See: Ashley v. Ashley, 482 Pa. 228, 393 A.2d 637 (1978); Pollock Industries, Inc. v. General Steel Castings Corp., 203 Pa. Super. 453, 201 A.2d 606 (1964). Acts of a corporate agent which are performed within the scope of his or her authority are binding upon the corporate principal. See: Lokay v. Lehigh Valley Cooperative Farmers, Inc., supra 342 Pa. Super, at 97, 492 A.2d at 409. See also: Sayre Land Co. v. Borough of Sayre, 5 Pa.D. & C.2d 294, 300-301 (Bradford Cty. 1955), aff'd, 384 Pa. 534, 121 A.2d 579, 583 (1956); Peterson v. Marianna Borough, 310 Pa. 524, 528, 165 A. 838, 839 (1933); Hahnemann Hospital v. Golo Slipper Co., 135 Pa.Super. 398, 403, 5 A.2d 605, 607 (1939). Where a party contracts with a corporation through a corporate agent who acts within the scope of his authority and reveals his principal, the corporate principal alone is liable for breach of the contract. See: Revere Press, Inc. v. Blumberg, 431 Pa. 370, 373, 246 A.2d 407, 409 (1968); Bucks v. Buckwalter, 419 Pa. 544, 546, 215 A.2d 625, 627 (1966); Geyer v. Huntingdon County Agricultural Association, 362 Pa. 74, 77, 66 A.2d 249, 250 (1949); Levy v. Conly, 340 Pa. 332, 336, 17 A.2d 382, 383 (1941); Rossi v. Pennsylvania State University, 340 Pa.Super. 39, 56, 489 A.2d 828, 837 (1985); Silverman v. Polis, 230 Pa.Super. 366, 372, 326 A.2d 452, 455 (1974); Perlman v. Pittsburgh Cabinets & Builders Supplies, Inc., 191 Pa.Super. 234, 236, 156 A.2d 373, 375 (1959).

In Raab v. Keystone Insurance Co., supra, James Raab sought recovery of no-fault insurance benefits from his insurer, Keystone Insurance Company, after he had been injured in a motor vehicle accident. Ed O’Keefe, a claims supervisor employed by the insurance company, was assigned to handle Raab’s claim. Although medical and work loss benefits were paid to Raab for a period of three months following the accident, no further payments were made. Raab and his wife brought suit against both the insurance company and O’Keefe, the claim supervisor. Two theories of recovery were asserted in the complaint: the first sought recovery for the physical and emotional injuries suffered by the plaintiffs because of the insurance company’s negligent failure to pay benefits according to the contract; the second asserted O’Keefe’s alleged malicious interference with the contractual relationship between the insurance company and the plaintiffs. The trial court sustained preliminary objections in the nature of a demurrer and dismissed the complaint.

A divided panel of this Court affirmed. With respect to the claim for malicious interference with contract, the majority adopted the opinion of the trial court as follows:

In the instant matter, Plaintiffs would have this court view O’Keefe, a claims supervisor employed by the Defendant Company, as a third party who interposed himself between two parties to an agreement. However, Plaintiffs aver in the Complaint that O’Keefe “at all relevant times was the agent, servant, and/or employee of the defendant, Keystone Insurance Company, at all times acting within the course of his employment and scope of his authority, under and subject to the direct and exclusive control and supervision of the defendant____” Inasmuch as Defendant Company can only act through its employees and O’Keefe is identified by Plaintiffs as the individual responsible for failing to authorize payments, the individual Defendant and the Company defendant are one and the same entity for purposes of this action. Consequently, there is no third party against who [sic] a claim of interference with contract can lie. Hence, Defendants’ demurrer to Plaintiffs’ contention that O’Keefe’s conduct constituted malicious interference with a contractual relationship must be sustained.

Id. 271 Pa.Super. at 188-189, 412 A.2d at 639-640.

Equally instructive are federal decisions interpreting Pennsylvania law and applying it to facts similar to those in the instant case. In DuSesoi v. United Refining Co., supra, an employee of the defendant corporation, who had been discharged by the corporation’s president, brought an action against both the president and the parent corporation for tortious interference with contractual relations. The United States District Court for the Western District of Pennsylvania dismissed the claim, holding that a corporation could not tortiously interfere with an agreement to which it was party. Id. at 1275. The court observed that the tort for malicious interference with contract, as defined in Section 766 of the Restatement (Second) of Torts, applied exclusively to interference caused by a third party. Id. Because a corporation may act only through its officers and agents, the court concluded, the actions of the officers in terminating contracts on behalf of the corporation could not be considered malicious interference by the individual officer or agent. Id. Similar reasoning was employed by the United States District Court for the Eastern District of Pennsylvania in Vuksta v. Bethlehem Steel Co., supra, where the plaintiff had asserted a claim for malicious interference with contract after his employment as a mechanical engineer at Bethlehem Steel had been terminated by corporate officers. In dismissing this claim, the court, relying on Raab, held that “[s]ince a corporation can only act through its agents and the individual defendants are identified as Bethlehem’s agents, there is no third party against whom an action can lie.” Id. at 1282. Most recently, in Wells v. Thomas, supra, the court for the Eastern District of Pennsylvania held that the personnel director of a hospital could not assert a cause of action for intentional interference with contractual relations against either the hospital at which he had been employed or its management employees who had terminated his employment. The court reasoned: “When the individual defendants allegedly engaged in tortious interference with [the plaintiff’s] business relationship with the [hospital], they were managerial employees acting in their official capacities. Accordingly, no ‘third party’ can be said to have interfered with [the plaintiff’s] relationship to her former employer.” Id. at 435. See also: Fincke v. Phoenix Mutual Life Insurance Co., 448 F.Supp. 187 (W.D.Pa.1978); George A. Davis, Inc. v. Camp Trails Co., 447 F.Supp. 1304 (E.D.Pa.1978). .

These decisions are analytically compelling. We conclude, therefore, that where, as here, a plaintiff has entered into a contract with a corporation, and that contract is terminated by a corporate agent who has acted within the scope of his or her authority, the corporation and its agent are considered one so that there is no third party against whom a claim for contractual interference will lie.

Adams’ reliance upon the decision by a panel of this Court in Yaindl v. Ingersoll-Rand Co., supra, is misplaced. There, the plaintiff had been employed by Ingersoll-Rand at its Standard Pump-Aldrich Division (SP-AD) plant when he was fired by a plant officer. When the plaintiff attempted to obtain employment with another departmental division of Ingersoll-Rand, Turbo Products Division (Turbo), several officers of the SP-AD plant contacted the hiring personnel at the other division. As a result of information provided by these officers, the plaintiff was not hired by Turbo. Consequently, the plaintiff brought an action against Ingersoll-Rand, alleging a theory of intentional interference with prospective contractual relations. Specifically, he asserted that the officers of the SP-AD plant had interfered with his prospect for obtaining employment with Turbo. The trial court dismissed this claim on motion for summary judgment. In reversing the entry of summary judgment, the Superior Court noted that although SP-AD and Turbo were both divisions within the same corporation, they were each sufficiently autonomous so as to be considered separate. Id. 281 Pa.Super. at 585, 422 A.2d at 624. Thus, when officers of SP-AD gave information to Turbo about the plaintiff, they were not “interfering” with a contract to which SP-AD was a party, but rather were affecting the prospective contractual relationship between the plaintiff and a completely separate and distinct “third party” corporate entity. Upon this basis the court held that it was possible for an officer of one corporation to interfere with the prospective contractual relationships of another corporation owned by the same conglomerate. Id., 281 Pa.Superior Ct. at 586-587, 422 A.2d at 625. Yaindl is not factually the same as the instant case. There the corporate officers had acted outside the scope of their authority by interfering with the plaintiffs prospective employment with a completely separate and distinct corporate entity; whereas, in the case sub judice the corporate agent, Rimbach, was acting within the scope of his authority when he terminated a contract already in existence between the plaintiff and Rimbach’s corporate employer, Rimbach Publishing. The holding in Yaindl, therefore, is inapposite to the instant case.

There is another reason why the directed verdict on the malicious interference with contract claim was correct and should not have been disturbed. As we shall see, both the 1968 and the 1973 agreements permitted the employer to terminate Adams’ employment contract at will. When Rimbach acted to discharge Adams, whether because he had a poor sales record or because he was doing work for a competitor, the discharge was in accordance with the terms of the contract and was not actionable.

An almost identical fact pattern was presented to the Supreme Court in Menefee v. Columbia Broadcasting System, Inc., 458 Pa. 46, 329 A.2d 216 (1974). There, Robert Menefee, a radio talk show personality, had been employed by radio station WCAU, a wholly-owned subsidiary of the Columbia Broadcasting System, Inc. (CBS). Pursuant to a provision in Menefee’s contract of employment, the general manager of WCAU, John O. Downey, and the vice president of CBS, Michael Grant, had exercised the right to terminate Menefee’s employment upon thirteen weeks notice. Menefee brought an action against Downey, Grant and CBS in which he alleged, inter alia, that Downey and Grant had conspired to interfere with Menefee’s contractual relationship with CBS. The trial court entered summary judgment on this claim, holding that CBS had a contractual right to terminate Menefee on thirteen weeks notice and that Downey and Grant were merely the agents through which CBS had acted. Both the Superior Court and the Supreme Court affirmed the dismissal of Menefee’s claim for conspiracy to interfere with contractual relations. In so doing, the Supreme Court observed, as did the trial court, that CBS had an absolute right to terminate Menefee’s contract upon thirteen weeks notice. Id., 458 Pa. at 55-56, 329 A.2d at 221. With respect to Downey and Grant, the Court held that “as employees of the radio station with a privilege to advise the station on handling its employees,” these individuals “were privileged to cause the station to terminate the contract.” Id., 458 Pa. at 56, 329 A.2d at 221.

The instant case is controlled by Menefee. As that decision makes clear, Rimbach Publishing had an absolute contractual right to terminate Adams’ contract and Rimbach, acting within the scope of his authority as its corporate officer, was privileged to exercise that right. Adams’ discharge by Rimbach on behalf of the publishing company, therefore, did not give rise to a claim by Adams for intentional interference with contractual relations. For the foregoing reasons, it was error for the trial court to grant a new trial on the cause of action for malicious interference with Adams’ contract of employment.

II. WRONGFUL DISCHARGE

The trial court entered a directed verdict on the wrongful discharge claim in favor of the employer and denied Adams’ subsequent motion for new trial because, in the court’s judgment, Adams was an independent contractor whose contract was terminable at will upon written notice. We find it unnecessary to determine whether Adams was an employee of the publisher or an independent contractor. In either event, it seems clear that his employment was at will and could be terminated upon notice. In this respect, the provisions of the 1968 and 1973 contracts were identical. Either contract could be terminated by the publishing company at any time upon written notice to Adams. There was no evidence from which the jury or the trial court could find any rights greater than those conferred by the written agreement. The directed verdict on the wrongful discharge claim was proper and will be affirmed.

III. BREACH OF CONTRACT

Whether Adams is entitled to recover commissions in excess of those already paid by the publishing company depends upon whether his rights are to be determined by the 1968 contract or the 1973 contract. The 1968 contract, it will be recalled, required the publishing company, in the event of terminating Adams’ contract, to pay him commissions accruing from three succeeding editions of the magazine published after his discharge. The 1973 contract, however, required the payment of commissions only for the next issue published following his termination. Believing the controlling terms to be those included in the 1973 agreement, the publishing company paid Adams the sum of $18,085.49. At trial, Adams contended that he was entitled to recover an additional $16,000 in commissions for advertising sold in two additional issues published after his dismissal.

It is not disputed that the initial agreement between Adams and the unincorporated publishing firm was executed in 1968. It is similarly undisputed that this contract was adhered to by the corporation after it had been formed in 1972. The corporate employer contended at trial and also contends on appeal that the 1968 contract was superseded by the 1973 contract between Adams and Rimbach Publishing, Inc.

“Parties to a written contract may show that it was subsequently abandoned in whole or in part, modified, changed or a new one substituted____” Priester v. Milleman, 161 Pa.Super. 507, 516, 55 A.2d 540, 545 (1947). See: 17 Am.Jur.2d Contracts § 459. The party asserting a substituted contract, however, has the burden of proving that the parties intended to discharge the earlier agreement. See: Buttonwood Farms, Inc. v. Carson, 329 Pa.Super. 312, 317, 478 A.2d 484, 486 (1984). See also: M.S. Jacobs and Associates, Inc. v. Duffley, 452 Pa. 143, 303 A.2d 921 (1973); Jacobson and Company v. International Environment Corp., 427 Pa. 439, 235 A.2d 612 (1967); Yoder v. T.F. Scholes, Inc., 404 Pa. 242, 173 A.2d 120 (1961); First Pennsylvania Bank, N.A. v. Triester, 251 Pa.Super. 372, 380 A.2d 826 (1977); Kritz v. Axler, 134 Pa.Super. 120, 3 A.2d 943 (1939). The intention of the parties to substitute a new contract for a prior agreement may be shown by other writings, by words, by conduct or by all three. See: Buttonwood Farms, Inc. v. Carson, supra 329 Pa.Super. at 318, 478 A.2d at 487. See also: Trustees of First Presbyterian Church of Pittsburgh v. Oliver-Tyrone Corp., 248 Pa.Super. 470, 375 A.2d 193 (1977); Hydro-Flex, Inc. v. Alter Bolt Co., 223 Pa.Super. 228, 296 A.2d 874 (1972).

In the instant case, the corporate publishing company met this burden by showing that Adams had signed a new contract with the corporation in 1973. The fact that an individual has signed an apparently complete expression of the terms of a contract is strong evidence that he or she is thereby expressing his or her unconditional assent, and, unless there is some evidence to the contrary, it may be conclusive of his or her intention to be bound. See: 1 Corbin on Contracts § 31, at 117. Nevertheless, the trial court submitted the case to the jury to determine whether the contract had been executed by the corporation and whether an executed copy had been delivered to Adams prior to the time when he was discharged. This, we are constrained to conclude, was error.

A written contract which has not been signed by one of the parties will nevertheless create a valid, binding agreement if both parties manifest their assent to its terms. See: Sullivan v. Allegheny Ford Truck Sales, 283 Pa.Super. 351, 358, 423 A.2d 1292, 1295 (1980). See also: L.B. Foster Co. v. Tri-W Construction Co., 409 Pa. 318, 186 A.2d 18, 3 A.L.R.3d 1142 (1962); 17 Am.Jur.2d Contracts §70. Moreover, unless the parties to a contract so stipulate, physical delivery of the instrument is not essential to the creation of a legally enforceable agreement. See: 17 Am.Jur.2d Contracts § 74; 17 C.J.S. Contracts § 64. So long as the parties intend to be bound by the contract, the failure of one party to receive an executed copy of the agreement will not prevent it from becoming operative. See: Id. Thus, neither the possibility that the publishing company failed to execute the 1973 contract until after Adams had been discharged nor the alleged failure of the publishing company to deliver a fully executed copy of the contract to Adams was legally sufficient to destroy the efficacy of the contract which Adams had signed in 1973. That agreement, by mutual consent of the parties, had superseded the earlier agreement and defined the rights of Adams and the corporate successor to the publishing business which had previously been conducted as a sole proprietorship by Richard Rimbach, Sr. It was offered by the corporation to all sales representatives and was accepted by Adams when he signed the written contract and returned it to the corporate publisher in 1973.

The agreement signed by Adams in 1973 provided that it could be terminated upon written notice by either party. In the event it was terminated by the publisher, however, Adams was to be paid all commissions accruing from his customers for the next issue published after his termination. Adams was terminated in June, 1978, in accordance with the terms of the contract between the parties. The termination was not wrongful. He was entitled to receive thereafter those commissions which accrued from the next monthly installment of the trade publication. These commissions were paid and received by Adams. He had no cause of action for further damages.

Because Adams as a matter of law has failed to establish a cause of action for breach of contract against Rimbach Publishing, Inc. or Richard J. Rimbach, Jr., we find it unnecessary to review the trial court’s exercise of discretion with respect to the granting of remittitur. That issue has become moot.

The order of the trial court is affirmed in part and reversed in part as set forth in the foregoing opinion. The case is remanded to the trial court for the entry of judgment in favor of Rimbach Publishing, Inc. and Richard Rimbach, Jr.

      . Both Adams and the publisher purported to sign the contract on behalf of corporate entities. However, neither corporation had been formed at the time when the contract was executed. Because the parties have not questioned this apparent irregularity, we do not address this issue.

      . The 1979 action had been filed by Adams against the defendants on his own behalf and on behalf of a corporation which allegedly succeeded to his business in 1971 to recover for the defendants’ asserted breach of an oral agreement entered into by Adams and Rimbach’s father in 1968. Like the suit filed in 1982, the 1979 action was based upon Adams’ dismissal by Rimbach in 1978. Adams was dismissed as a plaintiff in the 1979 action because, the trial court held, his obligations under the alleged oral agreement had been assumed by his corporation. This decision was affirmed by the Superior Court, and the case was remanded for further proceedings. After the 1979 action had been consolidated and tried with the suit which Adams later instituted in 1982, a directed verdict was entered for the defendants on all counts of the 1979 complaint.

      . We may affirm the decision of the trial court if it is correct for any reason. See: E.J. McAleer & Co. v. Iceland Products, Inc., 475 Pa. 610, 613 n. 4, 381 A.2d 441, 443 n. 4 (1977); Gwinn v. Kane, 465 Pa. 269, 279 n. 12, 348 A.2d 900, 905 n. 12 (1975); Pascone v. Thomas Jefferson University, 357 Pa.Super. 524, 528, 516 A.2d 384, 386 (1986); Green v. Juneja, 337 Pa.Super. 460, 464 n. 5, 487 A.2d 36, 39 n. 5 (1985); Emerick v. Carson, 325 Pa.Super. 308, 316 n. 2, 472 A.2d 1133, 1137 n. 2 (1984).


author: KELLY, Judge:

text:
    519 A.2d 1005
    DONEGAL MUTUAL INSURANCE COMPANY v. Anthony E. EYLER, Jeffrey Eyler, State Automobile Mutual Insurance Company, Daniel F. Aughenbaugh, Bernice Eyler, Cindy Peguinot, Steven Spahr, Diane Aughenbaugh, Connie Aughenbaugh and Melvin Aughenbaugh. Appeal of Daniel F. AUGHENBAUGH, Diane Aughenbaugh, Connie Aughenbaugh and Melvin Aughenbaugh.
    Superior Court of Pennsylvania.
    Argued Sept. 5, 1986.
    Filed Jan. 9, 1987.

      Bishop Nicklas Kauffman, York, for appellants.
    Daniel H. Shertzer, Lancaster, for State Automobile, appellee.
    Before GRILLO, President Judge, and MONTEMURO and KELLY, JJ.
   KELLY, Judge:

On March 25, 1984, an automobile accident occurred between a vehicle operated by Anthony Eyler and an auto operated by Daniel Aughenbaugh. The car operated by Anthony Eyler was owned by his brother, Jeffrey Eyler, and insured by State Automobile Mutual Insurance Company. At the time of the. accident, Anthony Eyler resided with his mother, Bernice Eyler, who held an automobile liability insurance policy issued by Donegal Mutual Insurance Company. The other driver, Daniel Aughenbaugh, filed suit against Anthony Eyler for alleged injuries resulting from the accident.

On January 18, 1985, Donegal Mutual brought the declaratory judgment action which is the subject of the instant appeal; Donegal Mutual sought to determine which carrier, if either, had a duty to defend and/or indemnify Anthony Eyler against claims arising from the accident. The declaratory judgment complaint named as defendants State Automobile Mutual, Anthony Eyler, Jeffrey Eyler, Bernice Eyler, Daniel Aughenbaugh, and the family members who were passengers in the Aughenbaugh’s vehicle (hereinafter referred to as “the Aughenbaughs”). On March 6, 1986, the court below granted the summary judgment motions of both Donegal Mutual and State Automobile Mutual, finding that neither carrier owed coverage for claims resulting from the accident. The Aughenbaughs have appealed the order of March 6, 1986. For the reasons stated herein, we affirm.

I. Standing to Appeal

Before reaching the merits of the issues raised on appeal, we must first determine whether the Aughenbaughs have standing to appeal the lower court’s ruling regarding the extent of coverage to Anthony Eyler.

One may not appeal from a decision which is not adverse to him, even though he is a party to the action in which the decision was rendered. Prior v. Borough of Eddystone, 30 Pa.Cmwlth. 536, 374 A.2d 981 (1977). Pennsylvania Rule of Appellate Procedure 501 limits the right of appeal to “any party who is aggrieved by an appealable order.” The official note adds that “[wjhether or not a party is aggrieved by the action below is a substantive question determined by the effect of the action on the party____” “In determining whether the interest asserted renders a litigant ‘aggrieved,’ the court must ascertain whether the interest is ‘substantial,’ ‘direct,’ ‘immediate,’ and ‘not a remote consequence’ of the challenged action.” American Booksellers Assn., Inc. v. Rendell, 332 Pa.Super. 537, 553, 481 A.2d 919, 927 (1984). Thus, “to justify judicial intervention, a party must allege a recognizable, adverse effect to himself and a close causal nexus between the injury and the challenged conduct.” 332 Pa.Superior Ct. at 554, 481 A.2d at 927.

Research reveals not a single Pennsylvania case which has determined the exact issue now before us. Courts from other jurisdictions, however, have considered the question, with varying results. In Reliance Insurance Company v. Walker, 33 N.C.App. 15, 234 S.E.2d 206 (1977) (cert. denied), the insurer brought a declaratory judgment action to determine liability for injuries allegedly sustained by the claimant while on the policyholder’s property. The lower court found that an automobile insurance policy provided coverage but that a homeowner’s policy did not. The Court of Appeals of North Carolina dismissed the subsequent appeal, brought by the personal injury claimant/defendant. The court reasoned:

The clear purpose of the action is to determine which insurance company, if any, would be liable to indemnify [the policyholder] and not to determine any possible liability to [the personal injury claimant]. Since [the personal injury claimant] has yet to establish any liability of [the policy holder] for the shooting, this declaratory judgment action involves only [the policyholder], his automobile liability carrier, and his homeowner’s liability carrier. At this point, [the personal injury claimant] has no interest in the subject matter of the action nor does he have any substantive legal rights to enforce the court’s determination of liability of either carrier.

234 S.E.2d at 209.

Applying the reasoning of Reliance, one could argue in the instant case that, until the Aughenbaughs have proved that they sustained compensable damages as the result of Anthony Eyler's negligence, the injury resulting from the lower court’s ruling is merely a ‘remote consequence,’ and is neither ‘direct’ nor ‘immediate.’ See American Booksel lers Assn., supra. We are persuaded, however, that the reasoning applied by the following cases, which hold that the personal injury claimants have standing to appeal, is the sounder approach.

In Security Insurance Company of Hartford v. Daniels, 70 Mich.App. 100, 245 N.W.2d 418 (1976), the Court of Appeals of Michigan, under similar facts, found the personal injury claimant to be an ‘aggrieved party’ having standing to appeal an order denying insurance coverage. The insurance company argued that the claimant was barred from appealing because his claim was contingent rather than direct: (1) the personal injury claimant may not join the insurer as a party defendant in an action for damages; (2) the claimant may file suit against the insurer only after he recovers against the tortfeasor in the original action. The court found that this factor was not so significant as to negate the personal injury claimant’s strong interest in the appeal:

Although [the personal injury claimant] was barred from joining the insurance companies in the original action, if he were to succeed in that action, he would be entitled to litigate the coverage issue in a subsequent action against the insurance companies ... Thus, he has an interest in resolution of that issue.

245 N.W.2d at 422. Similarly, in National Farmers Union Property & Casualty Co. v. Maca, 26 Wis.2d 399, 132 N.W.2d 517 (1965), the insurance company asserted that the personal injury claimant held no interest in the policy, could not maintain an action thereon against the insurer, and was not a party aggrieved by an order declaring that no coverage existed for the injury. The Supreme Court of Wisconsin responded:

[The personal injury claimant] would, however, be entitled to recover under the policy after first securing a judgment determining Louis’ liability to him. * * * Should [the claimant] recover against [the alleged tortfeasor] and then bring action against the company, the judgment now before us would bar his action. The judgment affects his interest to that extent, and he has standing to appeal.

132 N.W.2d at 519. Accord: General Casualty Company of Illinois v. Olsen, 56 Ill.App.3d 986, 14 Ill.Dec. 567, 372 N.E.2d 846 (1977).

In the case before us, although the fact that the Aughenbaughs were named defendants in the declaratory judgment action does not automatically confer “aggrieved party” status upon them for purposes of appellate standing, this factor is nevertheless relevant to our inquiry. According to the declaratory judgment statute, 42 Pa.C.S.A. § 7540, “[wjhere declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration.” Because personal injury claimants have a pecuniary interest in coverage questions, they are indispensable parties and must be joined in such declaratory judgment actions. Pleasant Twp. v. Erie Insurance Exchange, 22 Pa.Cmwlth. 307, 348 A.2d 477 (1975). The resolution of the coverage question in the declaratory judgment action has a res judicata effect upon any subsequent action brought by the personal injury claimant against the tortfeasor’s insurer. Thus, under the reasoning espoused in National Farmers and Security Insurance, supra, we believe that personal injury claimants are “aggrieved parties” and have standing to appeal a declaratory judgment in favor of the tortfeasor’s insurer. We conclude that the Aughenbaughs have standing to appeal the March 6, 1986 order.

II. Merits of the Appeal

The sole question raised by the Aughenbaughs on appeal is whether there existed a material issue of fact which barred the lower court from properly granting the motion for summary judgment. We find that a material Issue of fact did not exist, and that the judge therefore did not err in granting the motion.

A motion for summary judgment shall be granted only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P. No. 1035(b). In passing upon a motion for summary judgment, “[i]t is not part of the court’s function to decide issues of fact out solely to determine whether there is an issue of fact to be tried.” Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 141, 476 A.2d 928, 931 (1984).

Donegal Mutual and State Auto Mutual based their denial of coverage and their summary judgment motions upon nearly identical “permissive use” clauses contained within both policies. The policies excluded from coverage any person “[ujsing a vehicle without a reasonable belief that the person is entitled to do so.” As the lower court summarized the evidence in its opinion:

At his deposition taken on July 18, 1985, which has been filed with the Prothonotary, Anthony testified that Jeffrey placed restrictions upon Anthony’s use of his car. (N.T. 13). Jeffrey told Anthony, then age seventeen, that he was only to use the car to travel to and from work, that he was not to drive the car after midnight and that he was not to drive the car after drinking any alcohol. (Id.). The accident on March 25, 1984 occurred shortly after two o’clock in the morning, many hours after Anthony had finished working, after Anthony had consumed several bottles of beer and while Anthony was driving between the homes of friends. (N.T. 10, 13, 14, 16). Anthony admitted that at the time of the accident, he was fully aware that he was not obeying Jeffrey’s instructions and was not driving the car with permission. (N.T. 18, 25).

Opinion of 12/19/85, p. 4. Based upon this evidence, the lower court held that the “permissive use” clauses applied to exclude Anthony Eyler from coverage.

On appeal, the Aughenbaughs claim that an issue of material fact existed as to whether Anthony Eyler was using his brother’s car with a reasonable belief that he was entitled to do so; they assert that the court below therefore erred in finding as a matter of law that the policy exclusion applied. In support of their position, the Aughenbaughs cite portions of Anthony Eyler’s deposition, which purportedly shows that Anthony had “implied permission to use the automobile for purposes other than going to and from work because Jeffrey Eyler had acquiesced to uses of the automobile which were outside the scope of the express permission.” Appellants’ Brief at 12-13.

Certainly, appellants are correct in stating that permissive use of an automobile may be implied from a course of conduct in which the parties have mutually acquiesced. See Crespy v. Bliesmer, 248 Pa.Super. 441, 375 A.2d 179 (1977); Esmond v. Liscio, 209 Pa.Super. 200, 224 A.2d 793 (1966). These cases, however, are distinguishable from and inapplicable to the scenario presented in the instant case. In the cases cited by appellant, the operator of the vehicle believed that he was using the vehicle with the permission of the owner; this Court then determined that this belief was “reasonable” because the owner had previously acquiesced in operation of the auto beyond the scope of the consent which had been expressed. Nowhere in the depositions, pleadings, or affidavits presented in the instant case did Anthony Eyler state a belief that he was operating the auto with his brother’s consent at the time of the accident. To the contrary, Anthony Eyler repeatedly stated that he did not have his brother’s consent:

Q. So when you were driving the car at one and two o’clock in the morning of March 25th, you knew you were using it without his permission.
A. Yes, I knew.

R. 27a-28a. In an affidavit which was filed with the summary judgment motion, Anthony Eyler agreed that he was “operating said vehicle in violation of the restrictions imposed” and that “[a]t such time and place he was using the said vehicle without being entitled to do so.” R. 107a. Thus, it is clear that the implied consent cases are inapplicable.

The permissive use clauses in the policies excluded from coverage any person “[u]sing a vehicle without a reasonable belief that the person is entitled to do so.” The driver consistently stated that he did not believe that he was entitled to operate the vehicle under the circumstances present at the time of the accident. The question of whether or not, if the operator had believed that he was entitled to operate the vehicle, that belief was reasonable, is irrelevant. The lower court correctly held that the facts of this case fall squarely within the language of the policy exclusion, and that the insurers are entitled to judgment in their favor as a matter of law. Accordingly, the order of March 6, 1986 is affirmed.

      . The fact that appellees have not challenged the Aughenbaugh’s right to appeal is not dispositive of the question. The requirement that a prospective appellant be aggrieved by the order which he is attempting to appeal is not one which can be waived by the action or inaction of his opponents. Tate v. MacFarland, 303 Pa.Super. 182, 449 A.2d 639 (1982).

      . Language used by our Supreme Court in Allstate Insurance Company v. Stinger, 400 Pa. 533, 534, 163 A.2d 74 (1960) implies that individuals in appellants’ position have standing to appeal:

        This is a petition for a declaratory judgment filed by an insurance company seeking a declaration of its rights. It issued a policy of automobile insurance to the defendant Stinger. The court below at first upheld the policy but after hearing further testimony held it void. It also disallowed the intervention of the defendants Manko, who were in collision with Stinger and who have now appealed. The Mankos were allowed to litigate the whole case, and it was only at the end that the court below refused intervention in its last order and held the policy void. Hence they have standing to appeal. Stinger has not appealed.

      . Black’s Law Dictionary defines res judicata as follows:
      A matter adjudged; a thing judicially acted upon or decided; a thing or matter settled by judgment. Rule that a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action. And to be applicable, requires identity in thing sued for as well as identity of cause of action, of persons and parties to action, and of quality in persons for or against whom claim is made.

        Black’s Law Dictionary 1174 (5th ed. 1979) (citation omitted).

       Appellee Donegal Mutual attempts to raise additional issues in its brief filed with this Court. An appellee who does not file a counter-appeal is precluded from raising issues which are not raised by appellant. Philadelphia Bond and Mortgage Company v. Highland Crest Homes, 235 Pa.Super. 252, 340 A.2d 476 (1975); Appeal of Pesante, 82 Pa.Cmwlth. 242, 476 A.2d 474 (1984). Accordingly, we decline to address the additional issues raised in appellee’s brief.


text:
    519 A.2d 1010
    COMMONWEALTH of Pennsylvania, Appellee, v. Daniel J. JORASKIE, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 23, 1986.
    Filed Jan. 9, 1987.

      Michael D. Suders, Assistant Public Defender, Milton, for appellant.
    Before WIEAND, OLSZEWSKI and CERCONE, JJ.
   WIEAND, Judge:

The issue in this appeal is whether a revocation of parole can be based solely on an unproved urinalysis report suggesting the presence of cannabinoids (marijuana) in the urine of the parolee. The trial court allowed the unproved report to be received and, without further evidence, revoked appellant’s parole. We reverse.

After entering pleas of guilty to two counts of writing bad checks and one count of forgery, Daniel Joraskie was sentenced to serve concurrent terms of imprisonment for not less than six months nor more than twenty-three months. Joraskie was released on parole on July 22, 1985. On March 25, 1986, a petition to revoke parole was filed, and a hearing thereon was held on April 3,1986. Joraskie’s parole officer testified to obtaining a sample of Joraskie’s urine and then produced a urinalysis report prepared by the Regional Clinical Laboratory of Northwestern Pennsylvania. The chemist or other person who had made the analysis and prepared the report did not appear in person or by deposition. The written report, showing the presence of cannabinoids, was received in evidence over objection by Joraskie’s counsel. Joraskie testified in defense and denied that he had used marijuana during the period of his parole. The hearing court, on this state of the record, revoked parole and ordered that Joraskie be re-committed to prison. Joraskie appealed.

In Commonwealth v. Maye, 270 Pa.Super. 406, 411 A.2d 783 (1979), a panel of this Court, per the late Judge Price, reviewed the applicable law and summarized it as follows:

A parole revocation hearing is not a formal procedure that must be conducted in strict accordance with the entire gamut of evidentiary and procedural rules necessary in a criminal trial. Commonwealth v. Kates, 452 Pa. 102, 305 A.2d 701 (1973); Commonwealth v. Rossetti, 255 Pa.Super. 524, 388 A.2d 1090 (1973); Commonwealth v. Tomczak, 252 Pa.Super. 114, 381 A.2d 140 (1977); Commonwealth v. Quinlan, 251 Pa.Super. 428, 380 A.2d 854 (1977). Nonetheless such a hearing must comport with certain minimum due process standards enunciated by the United States Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Among these requirements is the “right [of the probationer] to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); ____” Id. at 489, 92 S.Ct. at 2604. We have noted the necessity for this type of confrontation on several previous occasions. See Commonwealth v. Rossetti, supra; Commonwealth v. Riley, 253 Pa.Super. 260, 384 A.2d 1333 (1978); Commonwealth v. Ball, 235 Pa.Super. 581, 344 A.2d 675 (1975); Commonwealth v. Davis, 234 Pa.Super. 31, 336 A.2d 616 (1975).

Id., 270 Pa.Superior Ct. at 410, 411 A.2d at 785.

Although this Court has not heretofore been asked to review the precise issue presented by the instant appeal, the same issue was presented to the Commonwealth Court in Whitmore v. Pennsylvania Board of Probation and Parole, 94 Pa.Cmwlth. 569, 504 A.2d 401 (1986). There, the Board of Probation and Parole had revoked parole based, inter alia, on a urinalysis report showing that a urine sample had been positive for methadone, quinine and morphine. The Commonwealth Court held: (1) that the admission of the report as a business record was error and (2) that, in the absence of “good cause” for not requiring confrontation, the presence of the person making the urinalysis and preparing the report was essential.

We agree with the Commonwealth Court. The urinalysis report in the instant case was not properly received as a business record. It was an extrajudicial statement offered to show the truth of the statement that marijuana had been found in appellant’s urine. As such, it was hearsay. See: Commonwealth v. Rounds, 356 Pa.Super. 317, 320, 514 A.2d 630, 632 (1986).

Hearsay evidence is subject to exclusion primarily because the declarant, who is not present in court, cannot be subjected to cross-examination. McCormick on Evidence, § 245 (3d ed. 1984). “Although the right of cross-examination is not absolute and although hearsay evidence may be received upon proof of exceptional circumstances ... [disclosing recognized indicia of reliability], cross-examination is particularly important where it is the only means for testing the reliability of an opinion regarding disputed facts.” Ganster v. Western Pennsylvania Water Co., 349 Pa.Super. 561, 573, 504 A.2d 186, 192 (1985) (citation omitted).

We hold, therefore, that in the absence of good cause sufficient to abridge a defendant’s rights of confrontation and cross-examination, an order revoking parole may not rest solely on inadmissible hearsay evidence. See: Commonwealth v. Riley, 253 Pa.Super. 260, 384 A.2d 1333 (1978); Grello v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole, 83 Pa.Cmwlth. 252, 477 A.2d 45 (1984). In the instant case, the urinalysis report was not admissible as an exception to the hearsay exclusionary rule; and there was no good cause for abridging appellant’s right to confront the witnesses against him. To receive the report in evidence, therefore, was error. To revoke appellant’s parole solely on the basis of inadmissible hearsay evidence was to deprive appellant of his dual rights of confrontation and cross-examination.

Reversed and remanded for further proceedings consistent with this opinion.