author: ROWLEY, Judge:

text:
    537 A.2d 361
    COMMONWEALTH of Pennsylvania v. James Mitchell HOUSE, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 4, 1987.
    Filed Feb. 10, 1988.

      David A. Schroeder, Erie, for appellant.
    Timothy J. Lucas, Assistant District Attorney, Erie, for Com., appellee.
    Before ROWLEY, DEL SOLE and MONTGOMERY, JJ.
   ROWLEY, Judge:

Appellant James House appeals from the judgment of sentence of seven to fourteen years imprisonment that was imposed on March 27, 1987. He raises three issues: 1) whether trial counsel was ineffective for stating as mere “boilerplate” the allegations in appellant’s motion for a new trial and/or arrest of judgment that the verdict was contrary to the evidence, to the weight of the evidence, and to the law; 2) whether trial counsel was ineffective for failing to locate and call an alibi witness allegedly identified by appellant; and 3) whether the sentence imposed was excessive. We affirm.

The charges against appellant arose out of four separate incidents. The first of these, the stabbing of one Henry Pullium on June 14, 1986, resulted in appellant’s plea of guilty on January 16, 1987, to a charge of simple assault. The remaining incidents involved appellant’s former girlfriend, Denise Hayes. Appellant was charged with committing simple assault against Hayes on June 28, 1986, with robbing her on July 2, 1986, and with recklessly endangering and committing aggravated assault against her on July 3, 1986.

On January 16, 1987, a jury found appellant not guilty of robbery but guilty of the other charges. A post-verdict motion was filed by trial counsel alleging in boilerplate form that the verdict was against the weight of the evidence, contrary to the law, and contrary to the evidence. The post-verdict motion also alleged five instances of trial counsel’s ineffectiveness. None of these claims of ineffectiveness, however, concerned counsel’s use of boilerplate challenges to the weight and sufficiency of the evidence. Because of the allegations of his own ineffectiveness, counsel was permitted to withdraw, and present counsel entered his appearance. An evidentiary hearing was held on the post-verdict motions so that new counsel could present evidence relating to trial counsel’s alleged ineffectiveness. Trial counsel was not called to testify. Following the hearing, the trial court denied the post-verdict motions. Thereafter, appellant was sentenced to one to two years imprisonment on each charge of simple assault and five to ten years imprisonment on the charge of aggravated assault, into which the charge of recklessly endangering merged for sentencing purposes. All sentences were to run consecutively. The trial court denied appellant’s motion to modify sentence, and this timely direct appeal followed.

Appellant bases his first issue, whether trial counsel was ineffective for stating several potential grounds for post-verdict relief in boilerplate form, on a settled principle of law: Boilerplate attacks on a verdict are inadequate to preserve issues for appellate review. Commonwealth v. Dougherty, 351 Pa.Super. 603, 607, 506 A.2d 936, 938 (1986). This specific claim of ineffectiveness is raised for the first time on appeal. However, a claim of ineffectiveness must be raised at the earliest stage in the proceedings at which counsel whose effectiveness is being challenged no longer represents appellant. Commonwealth v. Cargo, 498 Pa. 5, 19, 444 A.2d 639, 646 (1982); Commonwealth v. Seachrist, 478 Pa. 621, 624, 387 A.2d 661, 663 (1978). Where, as here, new counsel enters his appearance at the post-verdict stage, he is required to raise, in the trial court, any claim of ineffectiveness on the part of trial counsel as a ground for post-verdict relief. Commonwealth v. Cargo, 498 Pa. at 19-20, 444 A.2d at 646-47; Commonwealth v. Seachrist, supra. Present counsel did not request permission to file post-trial motions nunc pro tunc on the basis that trial counsel had been ineffective for filing only boilerplate post-trial motions and did not raise with specificity in an amended post-trial motion appellant’s challenges to the verdict. Present counsel also failed to raise appellant’s challenges to the verdict at the hearing on the post-trial motions. The record in this case makes clear that present counsel had ample opportunity to bring to the attention of the trial court the alleged ineffectiveness of trial counsel in presenting appellant’s challenges to the verdict in boilerplate form. By not taking advantage of that opportunity, present counsel failed to raise that claim of trial counsel’s ineffectiveness at the earliest stage in the proceedings at which appellant was no longer represented by trial counsel. Thus, appellant’s first issue has not been preserved for our review.

Even if appellant’s first issue were properly before us, the result would not favor appellant. Because the law presumes that counsel is effective, the burden of establishing ineffectiveness rests with appellant. Commonwealth v. Floyd, 506 Pa. 85, 90, 484 A.2d 365, 367 (1984); Commonwealth v. McKendrick, 356 Pa.Super. 64, 71, 514 A.2d 144, 148 (1986), allo. denied, 514 Pa. 629, 522 A.2d 558 (1987). To meet that burden, appellant must demonstrate that 1) the issue underlying his claim of ineffectiveness is of arguable merit; 2) the course chosen by counsel had no reasonable basis designed to serve his interests; and 3) he suffered prejudice as a result of counsel’s ineffectiveness. Commonwealth v. Pierce, 515 Pa. 153, 158-160, 527 A.2d 973, 975-76 (1987); Commonwealth v. Buehl, 510 Pa. 363, 378-79, 508 A.2d 1167, 1174-75 (1986); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604-5 & n. 8, 235 A.2d 349, 352-53 & n. 8 (1967). However, the record in this case shows that there is no merit to the underlying claims that the verdict was against the weight of the evidence, contrary to the law, and contrary to the evidence. Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986); Commonwealth v. Dougherty, 351 Pa.Super. at 610, 506 A.2d at 939.

Appellant’s assertion that the evidence in support of the verdict consisted almost exclusively of the victim’s testimony is incorrect. Two disinterested witnesses testified with respect to the aggravated assault on July 3, 1986, that they saw a man of appellant’s race and build beating a woman with a large object (N.T. at 55-61, 63-66). An acquaintance of appellant testified that in a telephone conversation appellant responded to her question of “how could you do this to Denise, hit her over the head with a lead pipe,” by saying “if I can’t have her, then nobody will” (N.T. at 70). City of Erie police officers to whom the victim reported the assaults of June 28 and July 3 testified as to her injuries and her identification of appellant as the assailant (N.T. at 75-76, 82-83). In addition, a determination as to the relative credibility of the victim and the alleged assailant is within the sole province of the trier of fact, and we are not permitted to substitute our judgment for the factfinder’s. Commonwealth v. Jackson, 506 Pa. 469, 475, 485 A.2d 1102, 1104-5 (1984).

Appellant’s assertion that the verdict of not guilty on the robbery charge is inconsistent with the verdict of guilty on the assault charges is, in light of the fact that the robbery charge was based on a separate incident, patently incorrect. Moreover, even if the verdicts were inconsistent, such inconsistency would not warrant a new trial. Commonwealth v. Carter, 444 Pa. 405, 408, 282 A.2d 375, 376 (1971). We conclude that appellant’s claims concerning the verdict are without merit and therefore trial counsel could not be ineffective for failing to have preserved them for appellate review. Commonwealth v. Jones, 507 Pa. 580, 582 n. 2, 493 A.2d 662, 664 n. 2 (1985); Commonwealth v. Dougherty, 351 Pa.Super. at 608, 506 A.2d at 939.

Appellant’s second issue is whether trial counsel was ineffective for failing to locate and call one Tina Barnett as an alibi witness on the assault charges. Based on Commonwealth v. Peterkin, 511 Pa. 299, 319, 513 A.2d 373, 383 (1986), and Commonwealth v. Wade, 501 Pa. 331, 333, 461 A.2d 613, 614 (1983), we conclude that the trial court has correctly decided that trial counsel was not ineffective for failing to locate and call the alleged alibi witness.

Appellant’s third issue, whether the cumulative sentence of seven to fourteen years imprisonment was excessive, presents a challenge to the discretionary aspects of sentencing. Appellant cannot appeal from the discretionary aspects of his sentence as of right but must petition for permission to appeal. 42 Pa.C.S.A. § 9781. Although appellant has failed to comply with the requirement of Pa.E. A.P. 2119(f) and Commonwealth v. Tuladziecki, 513 Pa. 508, 511-12, 522 A.2d 17, 18 (1987), that he include in his brief a separate statement, preceding the argument section, as to why this Court should exercise its discretionary jurisdiction to consider this appeal, the Commonwealth has waived this requirement by failing to object to appellant’s non-compliance. Commonwealth v. Krum, 367 Pa.Super. 511, 519, 533 A.2d 134, 138 (1987); Commonwealth v. Rumbaugh, 365 Pa.Super. 388, 391-392, 529 A.2d 1112, 1114 (1987). We cannot grant appellant permission to appeal, however, unless we determine that the issue that he has raised presents a substantial question that the sentence is inappropriate under the Sentencing Code. 42 Pa.C.S.A. § 9781(b). In Commonwealth v. Losch, 369 Pa.Super. 192, 201-202 n. 7, 535 A.2d 115, 119 n. 7 (1987), Judge Beck, writing for a unanimous panel of this Court, explained that

What constitutes a “substantial question” under section 9781(b) must be evaluated on a case by case basis. However, we will be inclined to allow an appeal where an appellant advances a colorable argument that the trial judge’s actions were: 1) inconsistent with a specific provision of the Sentencing Code; or 2) contrary to the fundamental norms which underlie the sentencing process.

Appellant’s claim, as disclosed by our overview of his brief, is that the sentence imposed was excessive because the trial court failed to consider adequately several mitigating factors, including appellant’s amenability to treatment for his drug problem and the willingness of appellant’s brother to allow appellant to reside with him. If true, appellant’s claim establishes a violation of section 9721(b) of the Sentencing Code, 42 Pa.C.S.A. § 9721(b), which directs that the sentence imposed should call for confinement that is consistent with, inter alia, the rehabilitative needs of the defendant. Thus, by advancing a color-able argument that the trial court’s actions were inconsistent with a specific provision of the Sentencing Code, appellant has raised a substantial question that the sentence imposed was inappropriate under the Code. Accordingly, we grant appellant permission to appeal.

Our review of appellant’s claim reveals, however, that it is without merit. We learn from the transcript of the sentencing hearing that the sentencing court considered appellant’s character and rehabilitative needs (Transcript at 24) as well as the statements made to the court by appellant and his counsel (Transcript at 16). The court also noted the existence of numerous unfavorable factors, including the seriousness of the assaults, appellant’s propensity for violence, his lack of remorse and refusal to accept responsibility for the offenses, and his rejection of available help during earlier periods on probation and parole (Transcript at 20-24). The court imposed a cumulative sentence of seven to fourteen years imprisonment after concluding that appellant requires long-term counseling, long-term educational and vocational training, and structured drug treatment in a setting of incarceration (Transcript at 24). Because appellant’s claim that the sentencing court failed to give adequate consideration to mitigating factors has no basis in fact, we affirm the judgment of sentence.

Judgment of sentence affirmed.

      . Issues one and two were presented as a single issue in appellant’s brief. We address them separately for greater clarity.

      . In its opinion denying appellant’s post-verdict motions, the trial court noted that "at no time prior to the hearing [on the post-verdict motions] did [present counsel] file any amendments to [appellant’s] original post-trial motions.”

      . "N.T.” refers to the notes of testimony of appellant’s trial on January 15, 1987.


source: Caselaw Access Project

license: Public Domain

text:
    537 A.2d 365
    Ernest R. McDANIEL v. REXNORD, INC. Appeal of HANLEY BRICK, INC., Petitioner. Ernest R. McDANIEL and Helen R. McDaniel v. Richard MORRIS and Ralph Young. Appeal of HANLEY BRICK, INC., Petitioner.
    Superior Court of Pennsylvania.
    Argued Nov. 5, 1987.
    Filed Feb. 10, 1988.

      Louis C. Long and David H. Patterson, Pittsburgh, for appellant.
    H. John Drayer, Clarion, for McDaniel, appellees.
    John G. Gent, Erie, for Rexnord, appellee.
    Before ROWLEY, DEL SOLE and MONTGOMERY, JJ.
   ROWLEY, Judge:

Appellant Hanley Brick, Inc. appeals from an order denying its petition to intervene. We affirm.

Ernest R. McDaniel (“McDaniel”), an employee of appellant Hanley Brick, Inc. (“Hanley”), was allegedly injured when he was exposed to a toxic chemical during the course of his employment. The chemical was manufactured by Rexnord, Inc. (“Rexnord”).

McDaniel brought suit against Rexnord (No. 18-1981 C.D.), and with his wife, brought a separate action against two co-employees, Richard Morris and Ralph Young (No. 23-1981 C.D.). Additionally, McDaniel pursued a workmen’s compensation claim which has resulted in payments by appellant’s insurance carrier, State Workmen’s Insurance Fund (“SWIF”), to McDaniel.

Through negotiation, McDaniel and Rexnord reached a proposed settlement (R.R. at 7a) of the case against Rexnord. Under terms of the settlement, Rexnord is to pay McDaniel $62,500 “contingent upon the Court’s approval of the settlement and the discharge of any liability that Rexnord has or did have to Ernest McDaniel or Helen R. McDaniel, his wife, and the Workman’s (sic) Compensation carrier responsible for workman’s compensation payments to Mr. McDaniel” (R.R. at 8a and 11a). The settlement was made possible, in part, by SWIF’s agreement to accept the sum of $12,000 in satisfaction of its subrogation interest (R.R. at 9a). Further, all claims against defendants Morris and Young in the other lawsuit would be released.

Appellant, McDaniel’s employer, filed a petition to intervene in the two civil actions in order to oppose the proposed settlement, on the theory that appellant, and not it’s carrier, SWIF, is in fact the subrogated party. Appellant acknowledges that an employer ordinarily does not have standing to intervene in an action involving its employee and the employer’s insurance carrier. However, appellant argues that due to the nature of its retrospective premium policy with SWIF, it has a .“legally enforceable interest” which gives it the right to intervene under 77 P.S. § 671, Subrogation of employer to rights of employee or dependents against third persons. Appellant alleges that its legally enforceable interest arises out of an obligation to reimburse its carrier “dollar-for-dollar to the extent of benefits paid by SWIF to any injured workman.” Appellant’s brief at 4. In other words, appellant argues, every dollar paid out to McDaniel ultimately must come from it, and not SWIF.

First, we note that no testimony was taken in this matter. The only facts of record before this Court are contained in the affidavit of F.N. Carducci, Secretary-Treasurer of appellant corporation, in support of the petition to intervene.

Second, before we reach the merits of appellant’s argument, we must address Rexnord’s claim that the orders appealed from are interlocutory and thus, unappealable. This Court noted in Maginley v. Robert J. Elliott, Inc., 345 Pa.Super. 582, 498 A.2d 977 (1985) (plurality opinion by Popovich, J.):

Albeit, in general, an appeal from an order refusing a petition to intervene is considered interlocutory, our courts have recognized that in those instances where the practical consequence of the order is to deny the petitioner relief to which he is entitled and which he can secure in no other way, the order has been held to be appealable.

Id., 345 Pa.Superior Ct. at 584, 498 A.2d at 979 (citation omitted). We agree with appellant that under the circumstances of this case, it would be denied relief, as a practical consequence, if it were not permitted to intervene.

Addressing the merits, however, we find no authority to support appellant’s position that it should be permitted to intervene in this action between the employee and the employer’s carrier. Ordinarily, when a prospective insured enters into a contract for insurance coverage, the insured gives up its right to subrogation in favor of the insurer. Therefore, any claim which appellant may have against SWIF is a matter between the employer and the carrier, to be determined according to the terms of their policy and the general principles of law of this Commonwealth governing the relationship between an insured and its carrier. Such a dispute should not impinge upon the settlement between McDaniel and Rexnord. As this Court recently reiterated, “[b]y asserting a right under the policy to handle all claims, including a right to make a binding settlement, the insurer assumes a fiduciary position toward the insured and becomes liable to act in good faith and with due care in representing the interests of the insured.” Hall v. Brown, 363 Pa.Super. 415, 420, 526 A.2d 413, 415 (1987). If appellant believes that SWIF has breached its fiduciary duty to appellant, then it must proceed against SWIF in a separate action.

In sum, whether or not appellant in this case has a legitimate claim against SWIF, we find no authority which would confer upon appellant standing to oppose the settlement between its employee and the defendant tort-feasor.

Order affirmed.

      . The trial court entered a single order denying appellant’s petition to intervene. However, the order was entered at the two separate relevant trial court docket numbers. Appellant filed separate notices of appeal from the order, entered at each separate trial docket number.

      . Pennsylvania Rule of Civil Procedure 2327 states:
      At any time during the pendency of an action a person not a party thereto shall be permitted to intervene therein, subject to these rules if ...
      (4) the determination of such action may affect, any legally enforceable interest of such person whether or not he may be bound by a judgment in the action. (Emphasis added.)

      . Section 671 provides, in relevant part:
      Where the compensable injury is caused in whole or in part by the act or omission of a third party, the employer shall be subrogated to the right of the employe ... against such third party to the extent of the compensation payable under this article by the employer____

      . Rexnord argues that appellant is protected by a maximum premium cap. Appellee’s brief at 8.


author: WIEAND, Judge:

text:
    537 A.2d 367
    Frank E. PFAHLER v. CONSOLIDATED RAIL CORPORATION, Appellant, v. LINCOLN ELECTRIC RAILWAY SALES; Hobart Welding and Equipment Corporation; Hobart Brothers Company; Tri-Mark, Inc.; Chemetron Corporation; Altoona Welding Supply Company; Teledyne McKay, Subsidiary of Teledyne, Inc.; Union Carbide Corporation, Linde Division.
    Superior Court of Pennsylvania.
    Argued Nov. 17, 1987.
    Filed Feb. 8, 1988.

      Richard C. Polley, Pittsburgh, for appellant.
    Michelle H. Lally, Pittsburgh, for Pfahler, appellee.
    Before WIEAND, MONTEMURO and POPOVICH, JJ.
   WIEAND, Judge:

The issue in this appeal from an order denying a motion for summary judgment concerns the application of the three year statute of limitations contained in the Federal Employer’s Liability Act (FELA).

Beginning in 1976 and continuing until January, 1978, Frank E. Pfahler was employed as a mechanic, painter, and material chaser by Consolidated Rail Corp. (Conrail) at shops in Holidaysburg and Altoona. His position was that generally referred to in the trade as a burner. In this capacity, Pfahler was required to use a torch to remove old parts from railroad cars and replace them with new parts. As a result, Pfahler was required daily to inhale welding fumes and dust.

On August 15, 1983, Pfahler commenced an action against Conrail pursuant to the Federal Employer’s Liability Act (FELA). He alleged that as a result of his employment he had been disabled by pulmonary emphysema and chronic bronchitis. Conrail filed an answer containing new matter in which it alleged, inter alia, that Pfahler’s action was barred by FELA’s three year statute of limitations, as contained in 45 U.S.C.A. § 56. After discovery proceedings, including plaintiff’s deposition testimony, Conrail moved for the entry of summary judgment. This motion was denied. The order was subsequently amended to certify that the issue was one about which there was substantial difference of opinion and that an immediate appeal would materially advance ultimate disposition of the case. This Court, on petition, agreed to allow an immediate appeal from the trial court’s interlocutory order.

In Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 476 A.2d 928 (1984), we reviewed the standard applicable to motions for summary judgment and said:

A motion for summary judgment may properly 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. 1035(b). See also: Rybas v. Wapner, 311 Pa.Super. 50, 54, 457 A.2d 108, 109 (1983); Williams v. Pilgrim Life Insurance Co., 306 Pa.Super. 170, 172, 452 A.2d 269, 270 (1982) . In passing upon a motion for summary judgment, the court must examine the record in the light most favorable to the nonmoving party. Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 82-83, 468 A.2d 468, 470 (1983); Zimmerman v. Zimmerman, 322 Pa.Super. 121, 124-125, 469 A.2d 212, 213 (1983); Wilk v. Haus, 313 Pa.Super. 479, 482, 460 A.2d 288, 289-290 (1983). It is not part of the court’s function to decide issues of fact but solely to determine whether there is an issue of fact to be tried. Wilk v. Haus, supra, 313 Pa.Superior Ct. at 482, 460 A.2d at 290; Tom Morello Construction Co. v. Bridgeport Federal Savings & Loan Association, 280 Pa.Super. 329, 334, 421 A.2d 747, 750 (1980). Any doubt must be resolved against the moving party. Chorba v. Davlisa Enterprises, Inc., 303 Pa.Super. 497, 500, 450 A.2d 36, 38 (1982); First Pennsylvania Bank, N.A. v. Triester, 251 Pa.Super. 372, 378, 380 A.2d 826, 829 (1977).

Id., 328 Pa.Superior Ct. at 140-141, 476 A.2d at 930-931. See also: Bobb v. Kraybill, 354 Pa.Super. 361, 364, 511 A.2d 1379, 1380 (1986); Chandler v. Johns-Manville Corp., 352 Pa.Super. 326, 328, 507 A.2d 1253, 1254 (1986). However, “[w]hen a motion for summary judgment is made and supported as provided in [the] rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in [the] rule, must set forth specific facts showing that there is a genuine issue for trial.” Pa.R.C.P. 1035(d). Thus, “[i]n considering a motion for summary judgment under Rule 1035, a court may rely on the pleadings for uncontroverted facts but must ignore the pleadings as to controverted facts____ ‘The very mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’ ” Phaff v. Gerner, 451 Pa. 146, 150-151, 303 A.2d 826, 829 (1973).

The timeliness of Pfahler’s action is determined by FELA’s three year statute of limitations at 45 U.S.C.A. § 56. In the case of an occupational disease, the statutory limitation begins to run when the claimant becomes aware that he has suffered the illness and that his condition is work related. See: Kichline v. Consolidated Rail Corp., 800 F.2d 356, 358 (3d Cir.1986); Emmons v. Southern Pacific Transportation Co., 701 F.2d 1112, 1119 (5th Cir. 1983). See also: Farmer v. Pennsylvania Railroad Co., 311 F.Supp. 1074, 1076 (W.D.Pa.1970). Where a “creeping” disease is involved, the employee has knowledge. of the disease when the cumulative effects of the deleterious substance are manifested. Urie v. Thompson, 337 U.S. 163, 170, 69 S.Ct. 1018, 1025, 93 L.Ed. 1282 (1949). An employee may have knowledge of the work related nature of his illness even though he has not received an unequivocal professional diagnosis that he is in fact suffering from an occupational illness. See: Emmons v. Southern Pacific Transportation Co., supra at 1121-1122.

Pfahler’s complaint contains an averment that he became aware of his condition on May 20, 1983 and within three years of the filing of his action. However, his depositions reveal that he consulted with Dr. Cheung in September, 1978 because of breathing difficulties which he had then already begun to experience. Dr. Cheung diagnosed Pfahler’s condition as chronic bronchitis and pulmonary emphysema caused by dust and fume exposure at his place of employment. He advised Pfahler to terminate his employment. Thereafter, Pfahler did terminate his employment and continued to see Dr. Cheung for follow-up examinations.

Pfahler argues that even if he did become aware of his pulmonary condition in September, 1978, he did not become aware that it was work related until May 20, 1983, when he was treated for the first time by Dr. Macey Levine. Dr. Levine diagnosed his condition as pneumonoconiosis and chronic bronchitis attributable to welding dust and told Pfahler that it was work related. Pfahler’s depositions, however, make it unequivocally clear that he knew the cause of his lung problems before his treatment by Dr. Levine. Thus, he testified as follows:

Q. Did (Dr. Cheung) give any opinion at that time in September of 1978 as to why you had those problems?

A. Not that I recall, no. He just told me what I had, and then specified—

Q. Did he indicate to you that he felt it was from breathing in the fumes and dust at your job?

A. Yes, that’s what he indicated to me, yes.

Deposition Testimony of Frank E. Pfahler, December 15, 1983 at p. 55. Later, at a continued deposition, Pfahler testified on March 5, 1986 as follows:

Q. Did he at that time indicate to you that he thought your breathing problem was from the fumes and dust at your job?

A. Yes, sir, yes.

Q. Did he tell you this was caused by your working environment?

A. Yes, Dr. Cheung told me that, that was caused by the working environment, yes.

Continued Deposition of Frank E. Pfahler, March 5, 1986, at pp. 148-149. And later the following occurred:

Q. As I understand it from your testimony, you went to see Dr. Cheung on September 8th or 10th of 1978?

A. Yes.

Q. At that time he told you that your condition was due to your smoking and due to your job?

A. Okay. It’s like I say, I don’t recall him telling me it was about smoking but he did say about my job.

Q. It was related to your job?

A. Work related, yes.

Id. at 161.

Because there can be no dispute that appellee knew of his condition and that it was work related in September, 1978, the present action, commenced on August 15, 1983, is barred by FELA’s three year statute of limitations.

Order reversed. Judgment is entered in favor of appellant, Consolidated Rail Corporation.

      . 45 U.S.C.A. § 51 et seq.

      . The motion for summary judgment was granted with respect to claims by plaintiff against additional defendants joined by Conrail on the grounds that any claim by plaintiff against them was barred by the statute of limitations.


author: CERCONE, Judge:

text:
    537 A.2d 370
    COMMONWEALTH of Pennsylvania v. William WILSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 28, 1987.
    Filed Feb. 12, 1988.

      Nancy L. Butts, Williamsport, for appellant.
    Kenneth A. Osokow, Assistant District Attorney, Williamsport, for Commonwealth, appellee.
    Before WIEAND, TAMILIA and CERCONE, JJ.
   CERCONE, Judge:

In this direct appeal, appellant raises a single claim, that is, whether trial counsel was ineffective for failing to file post-verdict motions on his behalf. Had counsel done so, appellant argues, two trial issues would now be ripe for appellate review. They are: (1) whether the Commonwealth used its peremptory challenges at jury selection in a racially motivated manner, and (2) whether trial counsel was ineffective for failing to attempt to impeach the victim’s credibility as to her character and prior mental health history. For the reasons set forth herein, we are compelled to remand this case for a hearing on appellant’s allegations.

Appellant was convicted of rape, robbery, simple assault, and indecent assault on October 23,1986. Appellant alleges that he requested trial counsel to file post-verdict motions but the record shows that none were timely filed.

On December 17, 1986, new counsel for appellant filed Post Verdict Motions Nunc Pro Tunc without first requesting leave of court to file the motions out of time. By order of February 4, 1987, the court denied the post-verdict motions because they were filed out of time and imposed sentence. Counsel then filed a Motion to Reconsider Sentence which the court granted and, on March 5, 1987, the court imposed an amended sentence. In this direct appeal, appellant requests this court to remand the case with instructions for the filing and disposition of post trial motions nunc pro tunc.

The standard for reviewing a claim of ineffectiveness of trial counsel has been well stated:

When confronted with a claim of ineffectiveness assistance of counsel, a reviewing court must first ascertain whether the issue underlying the charge of ineffectiveness is of arguable merit and, if so, it must be determined whether the course chosen by counsel had some reasonable basis designed to serve the interests of his client. Commonwealth v. Stoyko, 504 Pa. 455, 475 A.2d 714 (1984). There is a presumption in law that counsel is effective. Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981). The standard governing ineffectiveness claims was set forth by this Court in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967):
Our inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that the trial counsel’s decision had any reasonable basis.

Id., 427 Pa. at 604, 235 A.2d at 352-53.

Commonwealth v. Buehl, 510 Pa. 363, 378, 508 A.2d 1167, 1174 (1986) (citations omitted) (emphasis in original). Finally, the petitioner must show how he was prejudiced by counsel’s ineffectiveness. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

To determine whether trial counsel was ineffective, we must first look to the merits of the underlying claims of error. Appellant correctly cites a recent United States Supreme Court decision, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), for the proposition that the prosecution’s use of peremptory challenges is subject to equal protection scrutiny and that to challenge potential jurors solely on the basis of race is forbidden.

In Batson, the United States Supreme Court enunciated a new test in this area. The defendant first must show that he is a member of a cognizable racial group and the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. The defendant is entitled to rely on the fact that peremptory challenges constitute a jury selection practice that permits “those to discriminate who are of a mind to discriminate.” Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the venirepersons on account of their race.

Batson still requires a prima facie case but has enlarged a defendant’s rights. The requirements for establishing a prima facie case of intentional racial discrimination are: 1) that the defendant is a member of a cognizable racial group and that the prosecution used peremptory challenges to remove from the venire members of the defendant’s race; 2) that the defendant can rely on the presumption that peremptory challenges to veniremen permit discrimination by those inclined to do so; and 3) that the facts and relevant circumstances raise the inference that the prosecutor used the peremptory challenges to racially discriminate. Batson, Id., 106 S.Ct. at 1723. Once these three requirements are satisfied, the burden shifts to the prosecution to explain adequately the racial exclusion. Id., at 1721.

Commonwealth v. McCormick, 359 Pa.Super. 461, 468-69, 519 A.2d 442, 446 (1986).

In this case the record reflects that appellant is of the black race; he was tried by an all white jury. The fact that all of the black venirepersons reached on voir dire were peremptorily stricken by the Commonwealth raises an inference that the peremptory challenges were used to discriminate. Appellant has thus satisfied the first two elements of a prima facie case. However, whether appellant has hurdled the third step required to establish a prima facie case is an open question of fact and law.

The Commonwealth argues and the record shows that the prosecution advanced allegedly neutral reasons for the exercise of its peremptory challenges. The Commonwealth’s stated reasons for the challenges were: (1) that the two black venirepersons were personally acquainted with the defendant; (2) each of the black venirepersons had close relatives who had criminal records or arrests; and, (3) a belief that, because of the small size of the local black community, the potential black jurors would be subject to undue pressure from members of that community.

The question, then, is what scope of review this court should apply to a Batson claim couched in terms of ineffectiveness of counsel. The Commonwealth urges us to make an independent review of the record. Appellant urges that we remand his case for the filing of post trial motions nunc pro tunc and for an initial determination by the trial court as to the nature of the Commonwealth’s peremptory challenges.

Because a final determination in this case requires a mixed determination of fact and law, we conclude that a review should be initially made by the court which presided over the voir dire proceedings. As the Pennsylvania Supreme Court commented in Commonwealth v. Bachert, 499 Pa. 398, 453 A.2d 931 (1982):

The role of the trial judge during voir dire is as arbiter of a mixed question of fact and law, and that the canvassing of prospective jurors for the possibility of a hardened opinion in derogation of the constitutional imperative of trial by “impartial, ‘indifferent’ jurors,” Irvin v. Dowd, [366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751, 755 (1961) ], is to be performed before the trial judge is not an empty requirement. The opportunity to observe the demeanor of the prospective juror and the tenor of the [counsel’s questions and the] juror’s answers is indispensable to the judge in determining whether a fair trial can be had in the community. Claims of impartiality by prospective jurors are subject to scrutiny for credibility and reliability as is any testimony and the judgment of the trial court is necessarily accorded great weight. As stated in United States v. Wood:
Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula. Id. 299 U.S. 123, 145-146, 57 S.Ct. 177, 185, 81 L.Ed. 78, 87 (1936) reaffirmed in Irvin v. Dowd, supra 366 U.S. at 725-726, 81 S.Ct. 1639 at 1644, 6 L.Ed.2d at 757.
Accordingly, this combined factual and legal determination, addressed to the sound discretion of the trial court, will not be disturbed on appeal in the absence of an abuse of discretion. Commonwealth v. Scott, 469 Pa. 258, 365 A.2d 140 (1976); Commonwealth v. Martinolich, 456 Pa. 136, 318 A.2d 680 (1974) appeal dismissed, 419 U.S. 1065, 95 S.Ct. 651, 42 L.Ed.2d 661 (1974).

499 Pa. at 409-10, 453 A.2d at 936-37. While the Bachert court was responding to a claim of prejudice caused by pretrial publicity, the rationale can also be applied to a claim of racial prejudice on the part of the prosecutor.

A question of intent to discriminate should not be made by an appellate court from a cold record. Rather, the court supervising the voir dire should make an initial decision based on the totality of the circumstances, giving counsel for both parties a chance to argue the point on the record. Our conclusion is supported by Batson wherein the United States Supreme Court ordered that case remanded for the trial court to determine (1) whether the facts established a prima facie case of discrimination and, if so, (2) whether the prosecutor could come forward with a neutral explanation for his or her action. Accord: Commonwealth v. McKendrick, 356 Pa.Super. 64, 76-77, 514 A.2d 144 (1986) (In reviewing a Batson claim on appeal, the Superior Court referred to reasoning contained in trial court opinion.).

It is clear that this claim is of arguable merit and there can be no tactical reason for trial counsel's failure to preserve this issue for appeal. Therefore, this case must be remanded for the filing of post trial motions nunc pro tunc. The trial court shall conduct an evidentiary hearing on appellant’s claims of ineffectiveness of trial counsel and make findings of fact and conclusions of law as necessary. Jurisdiction of this court is relinquished.

      . The lower court’s order denying appellant's post verdict motions reads as follows:
      AND NOW, this 3rd day of February, 1987, the defendant’s post verdict motions are hereby DENIED because they were not timely filed in accordance with Pa.R.Crim.P., Rule 1123(a). The defendant can raise trial error claims in post-verdict motions filed later than ten days after finding of guilt by obtaining a . court order granting the right to file post-verdict motions nunc pro tunc, but such an order must itself be obtained by way of a Post Conviction Hearing Act proceeding. Commonwealth v. Gaito, 277 Pa.Super. 404, 419 A.2d 1208 (1980).
      To the extent that this order cites Commonwealth v. Gaito for the proposition that appellant may only obtain the right to file post trial motions nunc pro tunc by way of a Post Conviction Hearing Act, 42 Pa.C.S.A. § 9541 et seq., proceeding, it is wrong. The Act clearly provides, “However, nothing in this subchapter limits the availability of remedies in the trial court or on direct appeal.” 42 Pa.C.S.A. § 9542. An appellant may request leave to file post trial motions nunc pro tunc by way of direct appeal. Accord: Commonwealth v. Gasper, 262 Pa.Super. 141, 396 A.2d 685 (1978).

      . We note that appellant is represented on appeal by counsel other than trial counsel. Therefore, his claims of ineffectiveness are not waived for failure to initially raise them in a timely fashion. See Commonwealth v. Nelson, 489 Pa. 491, 414 A.2d 998 (1980).

      . In this case, we do not have an explanation from the trial court on this issue because of procedural irregularities below. The first is that, while trial counsel noted his Batson objection for the record following the close of jury selection, the court made no ruling on the objection. Secondly, the court filed no Pa.R.A.P., Rule 1925 opinion as it had determined that no issues were properly preserved for appeal.

      . Accord: Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977) (If a finding of ineffectiveness of post trial counsel is made in regard to failure to preserve a claim for review, the appropriate remedy is to remand the case for filing of post trial motions nunc pro tunc.)

        . Because of our disposition of this case on the Batson issue, we will not address appellant’s second claim of prejudice. That issue must also be addressed by the trial court in a post trial review.


author: CIRILLO, President Judge:

text:
    537 A.2d 814
    Michael S. ROBERTSON v. ATLANTIC RICHFIELD PETROLEUM PRODUCTS COMPANY A DIVISION OF ATLANTIC RICHFIELD COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 29, 1987.
    Filed Dec. 21, 1987.
    Reargument Denied Feb. 8, 1988.

      Charles W. Kenrick, Pittsburgh, for appellant.
    Charles S. Morrow, Pittsburgh, for appellee.
    Before CIRILLO, President Judge, and JOHNSON and MONTGOMERY, JJ.
   CIRILLO, President Judge:

This is an appeal from an order entered in the Court of Common Pleas of Allegheny County denying appellant ARCO’s post-trial motions in a breach of contract of employment action brought by its former employee, appellee Michael S. Robertson.

Robertson had been an employee of ARCO for approximately seven and one half years in its Pittsburgh offices before the transfer at issue in this case. In Pittsburgh, Robertson, in his management position there, coordinated deliveries to retail service station dealers and distributors in a seven state area. His performance reviews were consistently excellent.

In February of 1982 ARCO approached Robertson concerning a position involving product delivery at ARCO’s Newark terminal, a position for which Robertson’s qualifications were less than commanding, as was openly acknowledged by all concerned. Robertson was concerned that, should he fail to master this new position, one totally outside of his previous experience with the company, it might hurt his career with ARCO. ARCO subsequently offered appellee the position on a trial basis with the understanding that periodic reviews would be undertaken and that, should Robertson’s performance remain unsatisfactory at the end of the trial period, he would be reassigned. Following the interview with Robertson, ARCO’s eastern regional manager prepared an internal memo, the pertinent portion of which reads:

In light of the circumstances cited above [reservations about his effectiveness], I advised Mr. Robertson that he would be accepted for the Newark assignment on a trial basis and that if after a reasonable period of time (three to six months) he was unable to perform effectively, reassignment action would be taken.

Robertson began the new assignment in February of 1982 immediately after these discussions, later moving his home to the Philadelphia area. Robertson’s performance was reviewed in May of 1982, September of 1982, and April of 1983. At each of these junctures ARCO recognized appellee’s obvious efforts to improve his performance, noted areas which still needed improvement, and decided to extend the trial period. In April of 1983, ARCO was informed that the eastern portion of the company was being sold, and there followed a subsequent reduction in the work force. In June of 1983 Robertson was terminated because of his unsatisfactory performance. ARCO attempted to find another position for him but because other employees being displaced as a result of the sale had better performance records, they were preferred for any available openings. Robertson was subsequently sporadically employed with salaries and prospective salaries (Robertson was still interviewing at the time of trial) of approximately $18,000, $10,000 less than he had been making at ARCO.

In February of 1984 Robertson filed suit alleging, inter alia, breach of employment contract. Following a jury verdict for Robertson and denial of ARCO’s timely post-trial motions, ARCO filed the instant appeal with this court.

Appellant presents three issues for our consideration, alleging reversible error as to each: (1) rulings of the trial court adverse to the defendant as to the legal sufficiency of plaintiff’s claim; (2) denial of a new trial despite the existence of prejudicial error; and (3) refusal of remittitur. At the outset we will address the first contention since, unless the trial court is upheld in the actions complained of in this argument, there will be no need to reach the second and third issues.

The threshold question for this court is whether Robertson’s employment was at-will at the time of his discharge. We will not review terminations of at-will employment relationships. Veno v. Meredith, 357 Pa.Super. 85, 97, 515 A.2d 571, 577 (1986). The verdict in the trial court was for Robertson, indicating that the jury found that his relationship with ARCO at the time of his discharge was not employment at-will.

This court’s recent decisions in this area of the law contain extensive discussion of Pennsylvania’s at-will doctrine and existing exceptions and are cited repeatedly by both parties. These cases provide guidance for this court in the instant matter but no single case controls the outcome here.

The parties to this appeal do not disagree on what must be shown in order to rebut the presumption of at-will employment, a long-standing doctrine in Pennsylvania law. Appellant had the benefit of this presumption and the the burden of persuasion to rebut it was with appellee Robertson.

All employment is considered to be at-will absent: (1) sufficient additional consideration; (2) an agreement for a definite duration; (3) an agreement specifying that the employee will be discharged only for just cause; or (4) an applicable recognized public policy exception. The parties concede that (3) and (4) are not applicable in this case, and question only the court’s resolution of (1) and (2).

I. Argument I: LEGAL SUFFICIENCY

Following the rendering by the jury of a verdict for the plaintiff, ARCO moved, inter alia, for arrest of judgment or, in the alternative, a judgment notwithstanding the verdict. These motions were denied by the trial court in addition to the remaining post-trial relief requested by appellant which we will address in Sections II & III, infra.

A motion in arrest of judgment seeks to overturn the verdict because of a defect apparent on the record, while judgment n.o.v. is properly granted where no two reasonable persons could disagree that the verdict was improper. Erkens v. Tredennick, 353 Pa.Super. 236, 240, 509 A.2d 424, 426 (1986); Geyer v. Steinbronn, 351 Pa.Super. 536, 549, 506 A.2d 901, 908 (1986). There is no defect apparent on the record in the instant matter.

Judgment n.o.v. is an extreme remedy properly entered by the trial court only in a clear case where, after viewing the evidence in the light most favorable to the verdict winner, no two reasonable minds could fail to agree that the verdict was improper. Scarborough by Scarborough v. Lewis, 359 Pa.Super. 57, 61-62, 518 A.2d 563, 565 (1986); Bryant v. Girard Bank, 358 Pa.Super. 335, 339, 517 A.2d 968, 971 (1986). Considering only the evidence which supports the verdict, the court must give the verdict winner the benefit of all doubt and of every fact and inference deducible from the evidence. Gonzalez v. United States Steel Corp., 484 Pa. 277, 287, 398 A.2d 1378, 1383 (1979); Atkins v. Urban Redevelopment Auth., 489 Pa. 344, 351, 414 A.2d 100, 103 (1980).

The existence of a contract, the terms thereof, and the sufficiency of those terms to rebut the at-will presumption were within the province of the jury in the first instance, their finding reviewable by the trial court thereafter. In interpreting a contract to ascertain the intention of the parties the court may consider the totality of the surrounding circumstances, the situation of the parties, the objects they apparently had in mind, and the nature and subject matter of the agreement. Lucacher v. Kerson, 158 Pa.Super. 437, 440, 45 A.2d 245, 247 (1946).

A review of the record indicates evidence sufficient to support the jury’s conclusion that a contract of employment was made on or about February 9, 1982, whereby Robertson agreed to undertake the Newark position in exchange for a promise of reassignment if his job performance there proved unsatisfactory at the end of the specified duration. Robertson understandably did not wish to jeopardize his career with ARCO by failing in an attempt to master a new assignment, one for which both parties recognized he was not fully qualified. Therefore, the parties agreed to a trial period which was originally contemplated to last between three and six months, was later extended by the company, and ultimately lasted approximately fifteen months. At the end of this trial period, when Robertson’s performance had still not reached the level desired by the company, Robertson was, by the terms of the contract, entitled to reassignment for a reasonable period of time, since the contract did not specify a duration of the reassignment. Only after the passage of this reasonable period of time would Robertson have reverted to at-will status.

Further, the evidence supports a reasonable inference that, by leaving a position where his performance enhanced his career prospects and moving to the Philadelphia area, Robertson provided sufficient additional consideration to rebut the at-will presumption. As to appellant’s argument that the discharge was for just cause, specifically for unsatisfactory performance in the Newark position, it was reasonable for the jury to conclude that the contract prevented discharge for this reason and provided that reassignment was the proper remedy for this particular unsatisfactory performance. In fact, testimony by appellant’s personnel showed that the company attempted to reassign Robertson, citing company-wide cutbacks due to a reorganization as the reason they were unable to find Robertson a new position. It is a reasonable inference that ARCO’s attempt to reassign Robertson acknowledged its obligation to do so.

There was evidence from which the jury could reasonably find that Robertson had proven by a preponderance of the evidence the existence of a contract of employment for the definite term of a trial period supported by sufficient additional consideration, thereby rebutting the at-will presumption and, further, that termination of Robertson’s employment was not for just cause but constituted a breach of the contract by ARCO entitling Robertson to a verdict.

The test for sufficiency of the evidence does not ask this court to decide whether it agrees with the trial court; the question is whether the evidence is sufficient to support recovery as a matter of law. While we adhere to the well-settled principle that employment is to be considered at-will absent a contract supported by sufficient additional consideration, in the instant case the jury found a contract, and the trial court did not err in concluding that the evidence supported the verdict.

For the foregoing reasons we find that the trial court committed no error in regard to the legal sufficiency of the evidence supporting the verdict for Robertson. We turn now to appellant’s second argument.

II. Argument II: DENIAL OF NEW TRIAL

ARCO next cites numerous trial errors allegedly prejudicial to it, specifically the admission of certain evidence alleged to have been irrelevant, the limitation of the scope of its cross-examination of Robertson, the scope of damages allowed to be presented, the court’s admonishment of ARCO’s counsel in open court, error in various points for charge, and statements made to the jury during that charge. ARCO properly preserved these issues for appeal with the following exceptions: (1) ARCO’s post-trial motion complained only of the court’s admonishment about the presentation of exhibits during cross-examination of Robertson. Therefore, to the extent ARCO’s brief on appeal argues prejudice in reference to other admonishments, it will be disregarded; (2) point for charge number nine was not specifically indicated in ARCO’s post-trial motion and is, therefore, waived; (3) refusal of ARCO’s point number sixteen and acceptance of Robertson’s point number five, while raised in the post-trial motion, are not argued on appeal and will not be considered; and (4) ARCO’s failure to object on the record to the portion of the charge in which it is alleged the trial judge invited the jury to “make law” waives this issue and prevents our review of it. We will address ARCO’s remaining points seriatim.

Our standard of review of the denial of a new trial is to decide whether the trial court committed an error of law which controlled the outcome of the case or an abuse of discretion. Wood v. Smith, 343 Pa.Super. 547, 550, 495 A.2d 601, 603 (1985). The appellant bears a heavy burden in persuading this court that such error occurred. In considering all of the evidence in the light most favorable to appellee we must, to reverse the trial court, conclude that the verdict would be changed if another trial were granted.

1. Admission of evidence

Robertson’s exhibits two through six, dealing with his performance reviews prior to his transfer to Newark, were deemed relevant to his professional competence and admitted over ARCO’s objection. Testimony regarding these exhibits was also admitted. We believe that this evidence was relevant, if for no other reason, at least to the fact that Robertson was approached with the offer of employment in Newark which speaks to the parties’ intention to contract, a material issue in the case. We therefore find no abuse of discretion in the trial judge’s ruling on its admissibility.

2. Limitation of cross-examination

Absent an abuse of discretion or error of law prejudicial to appellant, the trial court’s discharge of its responsibility for the conduct of the trial in regard to the scope of cross-examination will be upheld. A review of the relevant portions of testimony indicates that the limitation was restricted to questions concerning the documents about which Robertson was being questioned. The court recognized ARCO’s right to a broader scope of cross-examination of a party and did not prevent questions concerning Robertson’s deposition, prohibiting only inquiry about the preparation and contents of the documents referred to at the deposition since Robertson did not prepare them. Appellant alleges prejudice in that the limitation prevented a full exploration of ARCO’s just cause basis for Robertson’s dismissal. The record reflects that this issue was extensively explored and, further, that the fact that appellee was not performing satisfactorily was not contested. We, therefore, find no merit in appellant’s argument.

3. Presentation of damages by appellee

The trial judge properly pointed out that both parties had the latitude to argue to the jury the entitlement to and the extent of appropriate damages as it related to the evidence presented. ARCO’s instant argument relates to the court’s refusal to give its point for charge 17. This point sought to restrict the damages to a maximum of $32,500, a figure representing Robertson’s lost salary from the date of termination to September of 1985. That figure did not take into account any other factor which could impact on the fixing of a damage amount. It is not within the province of the trial court to usurp any part of the function of the jury. We find no merit in appellant’s argument in this regard.

4. Admonishment of counsel

In asking ARCO to present to the witness a copy of the deposition exhibit to which he referred, the trial judge was acting entirely within the court’s discretion in the conduct of the trial. The record reflects no disparaging or derogatory remarks and it is difficult for this court to see how ARCO was prejudiced by such a “housekeeping” exchange with the bench. Appellant’s argument is without merit.

5. Points for Charge

ARCO first argues that binding instructions should have been given directing the jury to return a verdict in favor of ARCO. As we have previously noted, the factual issues which the jury had to resolve precluded a determination as a matter of law that the employment relationship was at-will. Therefore, refusal to charge the jury as appellant requested in point number one was entirely correct.

Robertson’s points for charge numbers one through four concerning the existence of a contract, its terms, and the parties’ intent were accepted by the court and the jury was charged in accordance with them. ARCO, while conceding that the law was fairly represented by these points, argues that, because such matters are not always exclusively within the province of the jury in a contractual unjust dismissal case, the giving of these instructions presented an “unbalanced” view of the role of the jury. Since the court had already determined that these issues could not be resolved as a matter of law, appellant’s argument is irrelevant and without merit since we have determined the legal sufficiency issues in favor of appellee.

ARCO next argues that its points three, seven, eight, twelve and seventeen were denied and “should have been read to the jury.” (Emphasis added). As both the trial judge and Robertson correctly point out, the trial court need not use any proposed point verbatim so long as the language used correctly and adequately covers the area or point of law at issue. Bell v. City of Philadelphia, 341 Pa.Super. 534, 546, 491 A.2d 1386, 1391-92 (1985); McGowan v. Devonshire Hall Apartments, 278 Pa.Super. 229, 242, 420 A.2d 514, 521 (1980). We turn now to each point raised on appeal.

Point for charge number three, as proposed by ARCO, dealt with the burden of proof to rebut the presumption of at-will employment. The record reflects that the court repeatedly charged the jury that the burden of proof was with Robertson, though not precisely in the language requested by ARCO. Rebuttal of a presumption is a legal term of art conveying a certain meaning to those schooled in the law, but which does not have the same import with lay persons. Therefore, what is important in jury instructions is that a clear sense of the meaning of a legal term be conveyed. Such is the court’s duty in regard to any legal term. We find that the jury was properly charged as to Robertson’s burden to prove the existence of facts to support one of the exceptions, previously enumerated in the charge, to rebut the at-will presumption.

ARCO’s point number seven sought both to define at-will employment and to have the jury instructed that the presumption of at-will employment was a “strong” one. The court did charge on the at-will definition but declined to use the modifier “strong” in reference to the presumption. ARCO cites Henry v. Pittsburgh & Lake Erie R.R., 139 Pa. 289, 21 A. 157 (1891), for this proposition. Robertson points to a recent opinion from this court in which at-will employment is extensively discussed to support his position that the language used by the court was well within the current law. Darlington v. General Electric Co., 350 Pa.Super. 183, 504 A.2d 306 (1986). Further, the trial court, in deciding this point in ARCO’s post-trial motion, did not find fundamental error prejudicial to it. We agree. There is no necessity to classify as “strong” the at-will presumption nor is it prejudicial error to fail to do so when the charge reflects the burden necessary to overcome the presumption.

ARCO’s point number eight, as the trial court noted, is repetitive. In view of our previous discussion we find no merit in ARCO’s argument that this point was “eliminated.” Where points have been previously covered, the court’s refusal to give a proposed instruction is not error. Wilson v. Pennsylvania R.R., 421 Pa. 419, 422-23, 219 A.2d 666, 673 (1966); Werner v. Quality Serv. Oil Co., 337 Pa.Super. 264, 269, 486 A.2d 1009, 1011 (1984).

As to proposed point number twelve, ARCO argues that removal of language concerning “overcoming the presumption” unduly prejudiced it. A review of the portion of the charge complained of, as well as the charge as a whole, confirms the trial court’s judgment that the jury was adequately charged as to what they would have to find for the presumption of at-will employment to be overcome.

For reasons set forth previously, ARCO’s argument as to proposed point seventeen, limiting the amount of damages, cannot be accepted. To so instruct the jury would have been to invade its province as the extent of damages could not be determined until the factual issues surrounding the contract and its duration were resolved.

Even if the charge as a whole reveals inaccuracies or omissions, it is not substantially erroneous so long as it is not misleading. Mount v. Bulifant, 438 Pa. 265, 270, 265 A.2d 627, 630 (1970). Further, at the conclusion of the charge, counsel had the opportunity to raise any errors so that they could be corrected before the jury retired. ARCO objected only to the court’s reference to “writings ” which the jury could consider. ARCO asserted that only the internal memo should be considered by the jury and sought to exclude Robertson’s performance reviews. ARCO also objected to a possibly misleading reference to damage figures on a blackboard. Both of these issues were subsequently disposed of in supplemental instructions to the jury. This was the time at which ARCO should have raised all errors as to the points argued on this appeal, and, if curative instructions were not perceived to be adequate, noted exceptions on the record.

Our review of the record in this matter as it relates to the points for charge gives us no reason to disturb the trial court’s determination that the charge was neither erroneous nor prejudicial to appellant.

III. Argument III: REMITTITUR

Finally, ARCO argues that the trial court committed reversible error by failing to order remittitur pursuant to its post-trial motion asserting that the verdict was excessive given the evidence. We can reduce the award only where it is manifestly clear the trial court erred in entering a judgment larger than the verdict winner by his own showing was entitled to recover. Steinhauer v. Wilson, 336 Pa.Super. 155, 159, 485 A.2d 477, 479 (1984).

In the case at bar, the jury found a contract of employment and a breach thereof. The parties did not disagree that $32,250.00 represented appellee’s lost earnings up until October of 1985. Robertson pointed out, however, that this was not inclusive of benefits and argued that the figure was not a fair measure of the total damages. Similarly, the parties do not disagree that upon the finding of a contract the extent of appellee’s damages would include lost income for the “reasonable time” Robertson would have worked in a new, reassigned position. ARCO argues, however, that this would not have been beyond October of 1985 when ARCO sold the Newark facility. ARCO offers in further support the implication that the same manager who fired Robertson in 1983 would have fired him in October of 1985. The latter contradicts the testimony of that manager that “reassignment” would have taken Robertson out of his division. Therefore, neither the sale of the Newark facility nor the assumed future decision of its manager provide conclusive evidence of a point at which Robertson’s damage ended. As Robertson points out, it is reasonable to assume that had he been reassigned to a position he could handle, his performance reviews would have returned to their pre-Newark level of excellence and his employment with ARCO would have continued to retirement, as was his apparent desire. ARCO’s assertion that the jury necessarily contemplated a “lifetime” contract in reaching the $200,000.00 award has no support in the record.

Robertson established mitigation and showed a current income of approximately $18,000.00 per year. This represents a loss of $10,000.00 per year when compared with his salary at ARCO. Assuming arguendo an equal rise in base earnings between the two jobs in the future, Robertson’s loss will be $10,000.00 per year. He is thirty-nine and can be expected to work twenty-six additional years, thereby incurring a loss of $260,000.00. Thus, the verdict of $200,000.00 returned by the jury was supported by the evidence and was not excessive. The trial court’s failure to order remittitur was, therefore, proper and we will not disturb that determination.

JUDGMENT AFFIRMED.


author: MONTGOMERY, Judge:

text:
    537 A.2d 823
    James MOROSETTI, George Silvat, Robert Polis, Robert Neal, Edward Schmude, and William D. Wilson, Individually and on Behalf of Themselves and All Others Similarly Situated, Appellees, v. The LOUISIANA LAND AND EXPLORATION COMPANY, and H M Copper, Inc., Formerly Hussey Metals, Inc., Appellants, and James MOROSETTI, George Silvat, Robert Polis, Robert Neal, Edward Schmude, and William D. Wilson, Individually and on Behalf of All Others Similarly Situated, Appellants, v. The LOUISIANA LAND AND EXPLORATION COMPANY, and H M Copper, Inc., Formerly Hussey Metals Inc., Appellees.
    Superior Court of Pennsylvania.
    Argued June 18, 1987.
    Filed Dec. 31, 1987.
    Reargument Denied Feb. 18, 1988.

      Edwin J. Strassburger, Pittsburgh, for appellants (at 1547) and appellees (at 1580).
    Thomas H.M. Hough, Pittsburgh, for appellees (at 1547) and appellants (at 1580).
    Before ROWLEY, JOHNSON and MONTGOMERY JJ.
   MONTGOMERY, Judge:

The two appeals in this case arise from a judgment of the lower court which ordered that the Plaintiffs and the class members they represented were entitled to severance pay from the Defendants. The Plaintiffs and other class members were former salaried employees of the Defendants, and the Plaintiffs’ claims were based upon an alleged severance pay policy of the Defendants. The case was tried before a jury, but at the conclusion of the presentation of all evidence, the lower court directed a verdict in favor of the Plaintiffs on the issue of both liability and damages. The verdict awarded severance pay to each member of the Plaintiff class, in the amount of one week of pay for each year of service, for up to a maximum of twelve (12) weeks.

Following the denial of post-trial motions, the Defendants filed an appeal to our Court, at No. 01547 Pittsburgh, 1986, asserting that the lower court erred on several grounds in granting the claim for severance pay benefits. The Plaintiffs subsequently filed a cross-appeal, at No. 01580 Pittsburgh, 1986, urging that the lower court should have determined that they were entitled to a maximum of twenty-six (26) weeks of severance pay, rather than twelve (12) weeks. Further, the Plaintiffs questioned the rate of weekly pay awarded, and contended that the lower court should have also awarded them reasonable attorney fees against the Defendants.

The facts of the case are set forth accurately in the Opinion of the lower court. In brief, the Plaintiffs and the class they represent were former salaried employees of the Defendants until the Defendants sold various assets and facilities to a group headed by a former officer and management official of one of the Defendants. This sale occurred in May, 1984. All of the Plaintiffs and those in the class they represent were hired by the new owners, and in essence, continued to perform job functions such as those which each had performed during his or her prior employment with the Defendants.

During their time of employment by the Defendants, none of those in the Plaintiff class was represented by a labor organization, and none was employed pursuant to the terms of a collectively bargained labor agreement, nor any other written contract of employment. However, the Defendants had for many years maintained various employment policies which were applied to salaried employees prior to the sale. Such policies were generally known to such employees, and were maintained in written form by the Defendants, in their personnel office, with copies sent to various individuals with supervisory authority over the employees in the Plaintiff class. A severance pay program or policy had been maintained by Defendants for several years prior to the asset and facility sale.

With this brief recitation of the general factual background of the case, we shall address the issues raised in these appeals. Each appeal will be examined separately.

Appeal of the Defendants (No. 01574 Pittsburgh, 1986)

The initial contention raised by the Defendant employers in this case is that the Plaintiffs and other class members had no right to receive a severance benefit because the policy of pension payments was never disseminated to employees. The Defendants maintain that because the policy of paying severance payments to employees was never directly published to employees, there was no meeting of the minds on such a policy, and therefore no contractual obligation by the employers. We find no merit in that argument.

The employers’ policy of paying severance benefits to employees had been in existence for many years, apparently since the early 1970’s. It was well-known that salaried employees, like those in the Plaintiff class, had received severance payments in the past when their employment relationship with the employer, or its related entities, was terminated. While some employees may have had some misconceptions as to some details of the severance pay benefit, almost all of them were aware that a right to severance payments existed as a company policy. The employment policy manual which set forth the severance pay formula was available for review in the personnel office, or at the work station of various supervisors, in the event that any employee had a question about the severance pay plan, or any other employee benefit. The evidence clearly established that despite the lack of specific publication of the fact by Defendants, the existence of a severance pay entitlement was a matter of wide knowledge among employees entitled to receive that benefit.

In these circumstances, we reject the Defendants’ assertion that the employees in the Plaintiff class had no right to severance on the basis that the terms of the severance pay policy were not disseminated to them, or that there was no meeting of the minds concerning the subject. Both of the parties have addressed numerous case precedents to our attention, and the lower court opinion has also noted a number of case precedents on the point of an entitlement of an employee to severance pay or other fringe benefits, in the absence of a written contract providing for such benefits. The Defendant employers have acknowledged the existence of legal precedent creating an obligation for the payment of such benefits by an employer, where the existence of the benefit entitlement was disseminated to employees. In the circumstances of this case, we find that there is ample evidence that there was broad awareness among the affected employees of the existence of the Defendants’ policy of paying severance pay to qualified terminated employees. Information about this benefit had obviously been disseminated among them, and they understood that it was a part of the conditions of their employment by the Defendants. Accordingly, we reject the Defendants’ first contention of error.

We next address the Defendants’ claim that there was no severance of employment with regard to the employees in the Plaintiff class, because each became an employee of the new owners of the assets and facilities which were purchased from the Defendants. In support of this argument, Defendants point out that in the past, under the existing severance pay policy, some employees did not receive severance pay when they were transferred from one employing entity to another as the ownership of facilities was transferred, or when there were transfers between related facilities owned by a single employing entity. Further, Defendants cite case precedent, from other jurisdictions, wherein severance pay was denied employees when their former employer sold their place of employment to a successor employer who immediately stepped in and continued the employment and all operations without any interruption in production. Upon the factual record before us, we cannot agree that there was a lack of severance of employment in this case such as would disqualify those in the Plaintiff class from receiving severance pay.

While the employees involved in this case essentially continued to be employed at the same facilities where each had worked during his or her time of employment with the Defendants, the purchasers of the assets and facilities in this case hired such individuals as new employees. There was no consideration by the new employer, with regard to any benefit of employment whatsoever, based on the employees’ prior employment by the Defendants. Moreover, the employees were offered a different fringe benefit package, which included the reduction or elimination of various benefits which had been paid by Defendants during their former employment. The evidence also showed that the agreement between the Defendants and the group which purchased the assets and facilities where the employees worked provided that the sellers would be responsible for any severance payments due. There was nothing in the Defendants’ severance policy which arguably provided for a denial of severance benefit entitlement upon reemployment of its eligible salaried employees by another employer, even at the same facilities. The fact that the Defendants may have denied severance pay to other employees, in the past, in other circumstances, has virtually no impact upon the obligations of the Defendants to the employee class in the circumstances under examination in the instant litigation.

The employees involved in this case all presumably earned their severance pay benefit on the basis of their past service to the Defendants. Their subsequent new employment by a completely unrelated employer, even though it may have been at the same facilities where they worked in the past, did not operate to establish a basis for a denial of the severance pay entitlement which each had earned. There is no question that none remained as employees of the Defendants. Based upon all of the foregoing, we cannot agree with the claims of the Defendant that there was no severance of employment such as to entitle the employees in the Plaintiff class to enjoy the benefits of the employers’ severance pay policy.

The Defendants offer the closely related argument that their severance policy excluded a right to severance pay where an employee retained employment with a related entity following a sale of facilities. We have addressed this argument in the course of our analysis of the claim that no severance of employment occurred in this case. In essence, the Defendants failed to establish that there were any conditions on their severance pay policy which would be based upon employment by any other employer entity, whether related or not to the Defendants. The record in this case shows that retention of any employees was not required as a condition of the sale of the assets and facilities by the Defendants. The retention of any employees, like those in the Plaintiff class, was a matter of unrestricted discretion by the asset and facility purchasing group. That group was a new employer entity, and it did not hire all of the salaried employees formerly employed by the Defendants. The hiring of the employees involved in this case by the purchasers provided no basis for the Defendants to deny severance payments to such former employees. Therefore, we must also reject this defense argument.

Finally, we address a contention by the Defendants that the severance pay claims of the Plaintiffs must be denied because the severance policy of the business division where they were employed had never been approved after its revision in 1982, despite the fact that other policies of the Defendants called for such fringe benefit revisions to be approved or adopted by higher levels of management within the Defendants’ organizational structures. It will suffice to merely point out that the revision of policy which occurred in 1982 was followed by the Defendants with regard to subsequent payments of severance pay to employees, prior to the 1984 sale of assets and facilities. Moreover, individuals who would have qualified for inclusion in the Plaintiff class, but for the fact that they were not employed after the sale by the group which purchased the assets and facilities, received severance pay, despite the fact that the 1982 revision was not approved by higher levels of authority within the Defendants’ organizational structure. Thus, it is evident that the alleged lack of approval for the policy revision provides no logical or legal basis for the denial of the severance pay awarded by the lower court to those in the Plaintiff class.

We have rejected all of the claims of error raised by the Defendants. Accordingly, with regard to their appeal, the judgment of the lower court is hereby affirmed.

Appeal of the Plaintiffs (No. 01580 Pittsburgh, 1986)

In their cross-appeal, the Plaintiffs first maintain that each member of the class of former employees was entitled to receive one week of pay for each year of service up to a maximum of twenty-six (26) weeks, rather than twelve (12) weeks, as ordered by the lower court. In support of this contention, Plaintiffs point out evidence in the record to indicate that executives of the Defendants were engaged in discussions and had prepared documents regarding a possible change in the maximum number of weeks of severance pay which could be paid to employees. This contemplated increase was from twelve (12) to twenty-six (26) weeks. Further, Plaintiffs point out that one employee who was not retained by the group which purchased the assets and facilities was paid over twelve (12) weeks of severance.

We have reviewed the record evidence pertaining to this issue. From that review, we are convinced that the proposed change in the maximum number of weeks was never actually disseminated to employees. It appears that only the Defendants’ personnel director and his secretary learned of this potential change prior to the sale. Moreover, there was evidence that there were various other maximum periods of severance payments contemplated, and that the twenty-six (26) week maximum was only intended to apply to employees who would not be rehired by any other entity which operated such facilities after the sale. In any event, the only clear evidence regarding an established personnel policy which would have entitled the Plaintiffs to any severance benefits was the policy which had been contained in the personnel manual of the Defendants since at least 1982, and which had been consistently applied from that date until the time of the actual sale. It provided for a twelve (12) week maximum on severance pay benefits. We do not find that the lower court erred in determining that such established policy would have been the only basis upon which the Plaintiffs could claim any entitlement to severance pay. Thus, we reject the argument that the Plaintiffs had an entitlement to more than the maximum of twelve (12) weeks of severance payments awarded by the lower court.

Next, the Plaintiffs assert that the severance pay they received should have been based upon their “normal base rate”, and not the rate which was in effect on the date of the asset and facility sale. Apparently, approximately one year prior to the sale, employees in the Plaintiff class experienced a ten percent (10%) pay cut. Their argument, in this regard, is that their severance should have been based upon a weekly pay amount which ignored the ten percent (10%) reduction.

It does not appear that there is any evidence that the ten percent (10%) reduction pay which was experienced by employees for a year or more prior to the sale was either temporary in nature, or that it was guaranteed to be of any fixed duration. Further, the record does not establish any basis to conclude that the pay each received as of the date of the sale would have been increased on any future date, or changed in any other way. While there was evidence that some employees who were not hired by the new owner group did receive severance pay based upon the rate for each employee which was in effect prior to the ten percent (10%) reduction which had taken place a year earlier, there was no indication that the severance pay policy of the Defendants provided for pay at a rate other than the final one earned by any employee prior to severance. In essence, the Plaintiffs’ rights in this case all evolved from the established severance pay policy of their employer. Differences in treatment afforded to others, not based upon that policy, provide no basis for awarding the Plaintiffs benefits in excess of those provided for in the personnel policies. Accordingly, we do not find merit in the assertion by the Plaintiffs that the lower court should have awarded them pay on the basis of their purported “base rate” weekly pay prior to the earlier pay reduction.

The Plaintiffs first asserted a claim of entitlement to legal fees in their Motion for Post-Trial Relief. In that regard they stated: “4. Plaintiffs intend to seek reasonable attorneys’ fees from Defendants pursuant to the Act of July 14, 1961, P.L. 637, 43 P.S. Sections 260, et seq., as amended, particularly Section 260.9a (pocket part).” The lower court held that the matter of attorney fees was then premature, and inappropriate for consideration in connection with the other post-trial motions for relief.

We can discern no error in the lower court’s refusal to consider the request for legal fees in light of the context in which it was presented in this case. While the Plaintiffs have submitted a request, on this appeal, that they be awarded attorney fees amounting to twenty percent (20%) of the verdict, our Court will not address any questions regarding their entitlement to such fees for the first time on this appeal. Rather, we shall remand this case to the lower court for consideration of any issues presented, assuming that the Plaintiffs elect to submit any fee request to the lower court in some appropriate manner, within thirty (30) days of the filing of this Opinion.

Thus, as to Plaintiffs’ appeal, the Judgment of the lower court is affirmed, and this case is remanded for any further proceedings as may be appropriate, regarding any fee request which may be submitted by the Plaintiffs. Jurisdiction is not retained.