author: POPOVICH, Judge:

text:
      576 A.2d 376
    Sherrie SIMMERS and Robert A. Simmers, W/H and Robert S. Simmers a Minor, by His Parents and Natural Guardians, Sherrie Simmers and Robert A. Simmers, W/H v. AMERICAN CYANAMID CORPORATION, Tenneco, Inc., Tenneco Resin, Inc., Fellows Medical Manufacturing Company, Inc., Chromalloy American Corporation, Chromalloy Pharmaceutical, Inc., Forrest Pharmaceutical Laboratories, Inc., Heyden Products, Inc., the Children’s Hospital of Philadelphia, Radiology Department of the Children’s Hospital of Philadelphia, Rovena Spenser, M.D., C.E. Koop M.D. and Joseph Stokes, Jr., M.D. (Two Cases) Appeal of TENNECO RESINS, INC. (Two Cases) Robert J. BOYER, Individually and as Executor of the Estate of Marsha F. Boyer, Deceased v. CHILDREN’S HOSPITAL OF PHILADELPHIA, Heyden Products, American Cyanamid Corp, Tenneco, Inc., Tenneco Resin, Inc. (Formerly “Tenneco Chemical Co”), Fellows Medical Manufacturing Co., Inc., Chromalloy Pharmaceutical, Inc., Forrest Pharmaceutical Laboratories, Inc., Chromalloy American Corporation and Eugene B. Spitz, M.D. (Two Cases) Appeal of CHROMALLOY PHARMACEUTICAL, INC. (Two Cases)
    Superior Court of Pennsylvania.
    Argued Oct. 25, 1989.
    Filed June 12, 1990.

      Norbert F. Bergholtz, Philadelphia, for Tenneco Resins, appellant (at 3433 and 3434) and appellee (at 3565 and 3566).
    Joseph B. Mayers, West Conshohocken, for Chromalloy Pharmaceutical, appellant (at 3566).
    Thomas F. Reilly, Philadelphia, for Simmers, appellees (at 3433 and 3565).
    Michael Coren, Cherry Hill, New Jersey, for Boyer, appellee (at 3434 and 3566).
    Before MONTEMURO, POPOVICH and CERCONE, JJ.
   POPOVICH, Judge:

In this consolidated appeal, we are presented with a question of first impression in Pennsylvania — whether the forum-related contacts and actions of a predecessor corporation may be attributed to its successor for the purposes of establishing in personam jurisdiction.

Herein, appellants, Tenneco Resins, Inc. and Chromalloy Pharmaceutical, Inc., (hereafter “TRI” and “CPI” respectively) challenge the in personam jurisdiction of the Court of Common Pleas of Philadelphia. To appreciate fully the complexity of this case, a thorough recitation of the underlying facts is necessary, including a history of the product Thorotrast and its corporate lineage.

Thorotrast is the pharmaceutical brand name for colloidal thorium dioxide which is a radioactive contrast dye medium used to perform diagnostic x-rays. By the late 1940’s and continuing to the present date, scientific literature and FDA regulations concerning the use of thorium dioxide products explained the medical risks of using Thorotrast, especially an increased risk of cancer.

The genealogy of the Thorotrast product line and its manufacturers is complex and is the single most important factor in resolution of the question of jurisdiction. The commercial use of Thorotrast as an x-ray contrast dye was pioneered by the Von Heyden Company of Germany in the early 1930’s. At the same time, Heyden Chemical Corporation, a New York Corporation, began to distribute Thorotrast in the United States, including the Philadelphia area where the drug was administered at defendant Children’s Hospital, among other medical facilities.

In 1953, Heyden sold its antibiotics division to American Cyanamid, including all trademarks, patents, goodwill and business relating to Thorotrast. The November 3, 1953 sales agreement, in part, provided:

[ARTICLE IV, A(l) ] CYANAMID shall: (1) Duly assume as of the closing provided for herein all obligations of HEYDEN thereafter arising under all licenses, rights, permits, leases, agreements and contracts assigned by HEYDEN to CYANAMID pursuant to this Agreement; provided, however, that with respect to any thereof not identified in the Exhibits attached hereto CYANAMID shall have the option of reassigning the same to HEY-DEN, such option to be exercised by notice to HEYDEN within two (2) weeks after an officer of CYANAMID shall have notice thereof.
[ARTICLE V, B.] HEYDEN: agrees to indemnify, defend and save CYANAMID and/or their successors and assigns harmless from and against any and all claims of whatsoever nature, including the cost of any litigation thereof, arising out of or in connection with the operation of and conduct by HEYDEN of the business of its Antibiotic Division prior to the closing date hereunder, including, without limitation, claims for infringement of patents, defaults in performance of contract obligations, nuisance claims and claims or liability arising through violation of any law or governmental regulation.

After the sale, Heyden continued in business but no longer made or sold Thorotrast.

In 1954, American Cyanamid sold its Thorotrast product line to Testagar and Company. Appellees allege that as early as 1949, Testagar distributed Heyden’s Thorotrast product line. However, the earliest delivery of Thorotrast by Testagar into Pennsylvania documented in the record occurred in 1961.

In 1962, Testagar underwent a statutory consolidation and became part of the Fellows Medical Manufacturing Company. In 1971, Fellows was merged into FMM, Inc., a wholly owned subsidiary of Chromalloy American Corporation. Later the same year, FMM changed its corporate name to Fellows Medical Manufacturing Corporation, Inc., a Delaware Corporation. The Thorotrast product line was passed to each new corporate entity in succession; each, in turn, manufactured the drug and distributed it to the medical profession, including that of Pennsylvania.

Late in 1973, Chromalloy American incorporated Chromalloy Pharmaceuticals, Inc., appellant CPI. In 1974, CPI became the surviving corporation following a statutory consolidation of numerous Chromalloy American subsidiaries, including Fellows Medical Manufacturing Corporation. While it appears that CPI never manufactured or distributed Thorotrast, CPI, through its O’Neil, Jones and Feldmen Division, had filed a New Drug Application for Thorotrast with the Food and Drug Administration. However, in 1977, CPI withdrew its Thorotrast application. Subsequent thereto, portions of CPI were sold to Forest Laboratories, including the O’Neil, Jones and Feldmen Division which then controlled the Thorotrast line.

Meanwhile, in 1957, Heyden changed its name to Heyden Newport Chemical Corporation. In June of 1963, the Tennessee Gas Transmission Company, commonly known as Tenneco, Inc., acquired all of the assets and liabilities of Heyden Newport by means of a wholly owned subsidiary known as HDN Corporation, a Delaware corporation, created for such purpose. The “Plan of Reorganization,” executed by Heyden Newport, Tenneco and HDN, provided: 1) All of Heyden Newport’s assets, properties, business and goodwill were to be transferred to HDN in exchange solely for shares of $5.00 par value common stock of Tenneco owned or to be owned by HDN; and 2) Heyden Newport would then dissolve and distribute the Tenneco shares to stockholders of Heyden. In October of 1963, the parties completed the corporate acquisition of Heyden Newport. Heyden Newport then transferred to HDN all of its assets, properties, business and goodwill including the right to use the name Heyden Newport Chemical Corporation for which HDN executed and delivered to Heyden Newport an “Assumption Agreement” under which HDN agreed to pay, perform and discharge, all debts, obligations, contracts and liabilities of Heyden Newport of any kind, character or description, whether accrued, absolute, contingent or otherwise, and whether or not reflected or reserved against on the financial statements of Heyden Newport. Immediately thereafter, Heyden Newport changed its name to Denport Corporation, underwent voluntary dissolution under Delaware corporate law and distributed the Tenneco shares to its stockholders.

In turn, HDN changed its name to Heyden Newport Chemical Corporation, then to Tenneco Chemicals, Inc., and then again to Tenneco Resins, Inc., appellant TRI. The management of former Heyden Newport was retained as a part of the sales agreement. From the moment of their incorporation, TRI and its predecessors in interest were either qualified to do business as a foreign corporation in Pennsylvania or were carrying on a continuous and systematic part of their business in the Commonwealth until TRI voluntarily surrendered its certificate to do so on June 11, 1984. Thereafter, on August 26, 1985, TRI, pursuant to Delaware law, filed a certificate of dissolution.

The Boyer case is a wrongful death and survival action filed on behalf of the estate of Marsha Boyer and her surviving family. On or about April 19, 1949, Marsha Boyer, then five months old, was administered the drug Thorotrast in Children’s Hospital of Philadelphia. She first learned of the presence of Thorotrast in her system in February of 1985. Marsha Boyer died on April 26, 1986, at Broad Street Hospital in Philadelphia from a cancer-related illness which appellees allege was induced by Thorotrast. Throughout her life, Mrs. Boyer was a resident of New Jersey, and, at the time of her death, she resided in Stone Harbor, New Jersey.

The Simmers case is factually similar to the Boyer case. Herein, Sherrie Simmers alleges that as a result of the administration of Thorotrast to her on May 31, 1949, at Children’s Hospital of Philadelphia, she currently suffers from numerous serious maladies including, but not limited to, fibrosis, lymphatic obstruction with secondary lymphedema and an increased risk of contracting cancer of the bone marrow, liver, kidneys and spleen. Sherrie Simmers, who is also a life-time resident of New Jersey, learned of her Thorotrast problem in 1986. Neither Thorotrast recipient was ever advised of the inherent problems of Thorotrast by any of the defendants below.

Herein, appellants contend that the forum-related actions contacts and actions of a predecessor corporation may not be attributed to its successor in interest; instead jurisdiction must be based on the forum-related activity of the defendant itself. We disagree and hold that the predecessor’s activities may be attributed to the successor for jurisdictional purposes.

Generally, “[¡Jurisdiction over a nonresident defendant may be based either upon the specific acts of the defendant which gave rise to the cause of action, or upon the defendant’s general activity within the forum state.” Skinner v. Flymo, Inc., 351 Pa.Super. 234, 239, 505 A.2d 616, 619 (1986) citing, Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473 n. 15, 105 S.Ct. 2174, 2182 n. 15, 85 L.Ed.2d 528, 541 n. 15 (1985); Bork v. Mills, 458 Pa. 228, 329 A.2d 247 (1974); Rogers v. Rogers, 295 Pa.Super. 160, 441 A.2d 398 (1982); Bianco v. Concepts “100”, Inc., 291 Pa.Super. 458, 436 A.2d 206 (1981).

When jurisdiction is based upon a foreign corporation’s general activity or consent, i.e., when the corporation has “continuous and substantial contacts” with Pennsylvania or has voluntarily registered itself to do business here, the courts of this Commonwealth may exercise jurisdiction over the foreign corporation regardless of whether the cause of action being prosecuted is related to the corporation’s activities in Pennsylvania. 42 Pa.C.S.A. § 5301. Bork v. Mills, 458 Pa. at 230, 329 A.2d at 249; Skinner v. Flymo, Inc., 351 Pa.Super. at 239, 505 A.2d at 619; Slota v. Moorings, Ltd., 343 Pa.Super. 96, 104-108, 494 A.2d 1, 5-6 (1985); Whalen v. Walt Disney World Co., 274 Pa.Super. 246, 250, 418 A.2d 389, 391 (1980). See also: Burger King Corp. v. Rudzewicz, 471 U.S. at 473 n. 15, 105 S.Ct. at 2182 n. 15.

Moreover, when a foreign corporation, which was subject to the general personal jurisdiction of Pennsylvania tribunals, subsequently ceases to do continuous and systematic business in Pennsylvania or withdraws its qualifications as a foreign corporation in this Commonwealth, Pennsylvania’s jurisdiction over the foreign corporation is not defeated with respect to any act, transaction or omission which occurred during the previous period. 42 Pa.C.S.A. § 5301(b), supra; Slota v. Moorings, Ltd., supra; Mobay Chemical Corp. v. Air Products, etc., 290 Pa.Super. 489, 495, 434 A.2d 1250, 1253 (1981); Fischman v. Fischman, 470 F.Supp. 980 (E.D.Pa.1979). Accord, Burger King Corp. v. Rudzewicz, 471 U.S. at 473 n. 15, 105 S.Ct. at 2182 n. 15.

When jurisdiction is based upon a foreign corporation’s specific act or acts related to the forum, the propriety of exercising jurisdiction over a non-resident is predicated upon the following two considerations: 1) Jurisdiction must be conferred by the Commonwealth’s “long-arm” statute, 42 Pa.C.S.A. § 5322 and 2) The exercise of jurisdiction must survive constitutional review under the Due Process Clause of the United States Constitution. Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102, 108-109, 107 S.Ct. 1026, 1031-1033, 94 L.Ed.2d 92 (1987); Burger King Corp. v. Rudzewicz, 471 U.S. at 470-478, 105 S.Ct. at 2181-2185; Skinner v. Flymo, Inc., 351 Pa.Super. at 239, 505 A.2d at 619; Hewitt v. Eichelman’s Subaru, Inc., 341 Pa.Super. 589, 492 A.2d 23 (1985).

The Court, in Skinner v. Flymo, Inc., supra, set forth the applicable constitutional guidelines to be employed when determining whether the requirements for specific act jurisdiction have been met as follows:

... Where the forum state seeks to assert specific jurisdiction over an out-of-state defendant, who has not consented to be sued there, the Due Process Clause of the Fourteenth Amendment to the United States Constitution” is satisfied if the defendant has ‘purposefully directed’ his activities at residents of the forum and the litigation results from alleged injuries that ‘arise out of or relate to’ those activities.” Burger King Corp. v. Rudzewicz, supra at 472, 105 S.Ct. at 2182, 85 L.Ed.2d at 540-541 (citation omitted). See: Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 413-414, 104 S.Ct. 1868, 1872, 80 L.Ed.2d 404, 411 (1984). The critical question in determining whether the defendant has purposefully directed his activities at residents of the forum is not whether it was foreseeable that defendant’s activities would have an injurious effect in the forum state, but whether the defendant’s conduct and his connection with the forum state were such that he could reasonably anticipate being “haled” into court there. Burger King Corp. v. Rudzewicz, supra, 471 U.S. at 474, 105 S.Ct. at 2183, 85 L.Ed.2d at 542; United Farm Bureau Mutual Insurance Co. v. United States Fidelity and Guaranty Co., 501 Pa. 646, 657, 462 A.2d 1300, 1305 (1983), quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 294, 100 S.Ct. 559, 565-566, 62 L.Ed.2d 490, 501 (1980). This question, in turn, must be resolved by examining the defendant’s contacts with the forum state.
The Due Process Clause permits a state to. exercise in personam jurisdiction over a nonresident defendant when there exist “certain minimum contacts” between the defendant, the forum state, and the litigation. Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S.Ct. 1473, 1478, 79 L.Ed.2d 790, 797-798 (1984); Calder v. Jones, 465 U.S. 783, 788, 104 S.Ct. 1482, 1486, 79 L.Ed.2d 804, 811 (1984); Helicopteros Nacionales de Columbia, S.A. v. Hall, supra, 466 U.S. at 413-414, 104 S.Ct. at 1872, 80 L.Ed.2d at 411; International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed.2d 95, 102 (1945); Kenny v. Alexson Equipment Co., 495 Pa. 107, 117-118, 432 A.2d 974, 980 (1981); Slota v. Moorings, Ltd., supra, 343 Pa.Super. at 102-103, 494 A.2d at 3. ...
Random, fortuitous, or attenuated contacts between the forum state will not support an exercise of jurisdiction. [Burger King Corp. v. Rudzewicz, 471 U.S.] at 475, 105 S.Ct. at 2183, 85 L.Ed.2d at 542; Keeton v. Hustler Magazine, Inc., supra, 465 U.S. at 774, 104 S.Ct. at 1478, 79 L.Ed.2d at 797; World-Wide Volkswagen Corp. v. Woodson, supra, 444 U.S. at 299, 100 S.Ct. at 568, 62 L.Ed.2d at 502. Jurisdiction is only proper “where the contacts proximately result from actions by the defendant himself which create a ‘substantial connection’ with the forum State. Burger King Corp. v. Rudzewicz, supra, 471 U.S. at 475, 105 S.Ct. at 2184, 85 L.Ed.2d at 542 (emphasis in original). See: McGee v. International Life Insurance Co., 355 U.S. 220, 223, 78 S.Ct. 199, 201, 2 L.Ed.2d 223, 226 (1957)....
“Once it has been decided that a defendant purposefully established minimum contacts with the forum State, these contacts may be considered in light of other factors to determine whether the assertion of personal jurisdiction would comport with ‘fair play and substantial justice.’ ” [Burger King Corp. v. Rudzewicz, 471 U.S.] at 476, 105 S.Ct. at 2184, 85 L.Ed.2d at 543. Factors to be considered include “ ‘the burden on the defendant,’ ‘the forum State’s interest in adjudicating the dispute,’ ‘the plaintiff’s interest in obtaining convenient and effective relief,’ ‘the interstate judicial system’s interest in obtaining the most efficient resolution of controversies,’ and the ‘shared interest of the several States in furthering fundamental substantive social policies.’ ” Id. at 477, 105 S.Ct. at 2184, 85 L.Ed.2d at 543, quoting World-Wide Volkswagen Corp. v. Woodson, supra, 444 U.S. at 292, 100 S.Ct. at 564, 62 L.Ed.2d at 498.
These considerations sometimes serve to establish the reasonableness of jurisdiction upon a lesser showing of minimum contacts than would otherwise be required. On the other hand, where a defendant who purposefully has directed his activities at forum residents seeks to defeat jurisdiction, he must present a compelling case that the presence of some other considerations would render jurisdiction unreasonable. Most such considerations usually may be accomplished through means short of finding jurisdiction unconstitutional. For example, the potential clash of the forum’s law with the “fundamental substantive social policies” of another State may be accommodated through application of the forum’s choice-of-law rules. Similarly, a defendant claiming substantial inconvenience may seek a change of venue. Nevertheless, minimum requirements inherent in the concept of “fair play and substantial justice” may defeat jurisdiction even if the defendant has purposefully engaged in forum activities. Burger King Corp. v. Rudzewicz, supra, 471 U.S. at 477-478, 105 S.Ct. at 2184-2185, 85 L.Ed.2d at 543-544 (citations omitted).

Skinner v. Flymo, Inc., 351 Pa.Super. at 240-244, 505 A.2d at 619-621.

In determining whether the lower court properly exercised jurisdiction over the appellants, we must determine whether it is a violation of our long arm statute and the Due Process Clause of the United States Constitution to attribute the forum contacts of a predecessor corporation to its successor for jurisdictional purposes. We believe our long arm statute is not violated and, more importantly, due process is not offended by such a judicial action.

Appellees cite a growing line of cases which hold that, under certain circumstances, a court may exercise jurisdiction over a successor corporation based upon the actions of its predecessor. Duris v. Erato Shipping, 684 F.2d 352 (6th Cir.1982), aff'd, sub nom., Pallas Shipping Agency, Ltd. v. Duris, 461 U.S. 529, 103 S.Ct. 1991, 76 L.Ed.2d 120 (1983); Bowers v. Neti Technologies, 690 F.Supp. 349 (E.D.Pa.1988); Goffe v. Blake, 605 F.Supp. 1151 (D.Del.1985); United States v. Bliss, 108 F.R.D. 127 (E.D.Mo.1985); Cole v. Caterpillar Machinery Corp., 562 F.Supp. 179 (M.D.La.1983); Fehl v. S.W.C. Corp., 433 F.Supp. 939 (D.Del.1977); Maryland National Bank v. Shaffer Stores Co., 240 F.Supp. 777 (D.Md.1965).

In response, appellants argue that this line of cases only applies when a statutory merger is involved, which is not the case of either appellant. In support of their argument, appellants cite Johnston v. Pneumo Corp., 652 F.Supp. 1402 (S.D.Miss.1987), Sullivan v. Fellows Testagar and Company, Inc., 518 So.2d 1111 (4th Cir. La.App.1987) and Tango v. The Cleveland Clinic Foundation, No. 95606 Slip Op. (C.C.P., Cuyahoga Co., Ohio April 2, 1986). We decline to follow these cases. As we will discuss infra, the great weight of persuasive authority permits imputation of a predecessor’s actions upon its successor whenever forum law would hold the successor liable for its predecessor’s actions, even though the new corporate entity is not the result of a statutory merger or consolidation.

Appellants further argue that “various theories of liability add nothing to the jurisdictional inquiry.” Quoting Witt v. Scully, 539 F.2d 950 (3rd. Cir.1976), appellants argue, “The law which must be applied to the issue [of jurisdiction] ... is not the aggregate of the legal precepts which substantively may impose liability on a defendant. Rather, the applicable legal precepts are jurisdictional ones, wholly statutory in this case. The result turns solely upon whether defendant’s conduct brings him within the terms of the Pennsylvania long arm statute.” Witt v. Scully, 539 F.2d at 951-952. See also Chromalloy v. Clair Polishing Company, Inc., No. 85-6021, Slip Op. (E.D.Pa., May 21, 1986) available at 1986 WESTLAW 5823.

However, we disagree and quote with approval Judge Caleb M. Wright who stated, “Certain principles of the substantive law with respect to the assumption by successor corporations of products liability are relevant to this jurisdictional question ... Common to the scope of both jurisdiction and liability is the fairness of making a corporation which enjoys the benefit of business within the state [i.e. assets of its predecessor derived from business within the state] answerable in that jurisdiction for wrongdoing associated with that business.” Fehl v. S.W.C. Corp., 433 F.Supp. at 945. Further, Judge Wright stated, “The rationale of the substantive liability [successor liability] cases, in Delaware and elsewhere, is equally applicable to the problem of personal jurisdiction.” Fehl v. S.W.C. Corp., 433 F.Supp. at 947 (emphasis added). In view of the similarity of concerns with respect to jurisdiction and liability, certain analogies between the law of successor liability are useful to determine whether a predecessor corporation and its successor are one and the same for jurisdictional purposes.

The general rule governing successor liability in Pennsylvania is set forth in Dawejko v. Jorgenson Steel Co., 290 Pa.Super. 15, 434 A.2d 106 (1981). Generally, when a company sells or transfers all of its assets to a successor, the successor does not acquire the liabilities of the transfer- or merely because of its succession to the transferor’s assets. Dawejko v. Jorgenson Steel Co., 290 Pa.Super. at 18, 434 A.2d at 107. See also Knapp v. North American Rockwell, 506 F.2d 361 (3rd Cir.1974), cert. denied 421 U.S. 965, 95 S.Ct. 1955, 44 L.Ed.2d 452 (1975). However, the general rule does not apply and liability attaches to the successor when one of the following is shown:

1) The purchaser expressly or impliedly agrees to assume such obligation;
2) The transaction amounts to a consolidation or merger;
3) The purchasing corporation is merely a continuation of the selling corporation;
4) The transaction is fraudulently entered into to escape liability;
5) The transfer was not made for adequate consideration and provisions were not made for the creditors of the transferor.
6) The successor undertakes to conduct the same manufacturing operation of the transferor’s product lines in essentially an unchanged manner. The successor is then strictly liable for injuries caused by defects in the product line, even if previously manufactured and distributed by the transferor.

Dawejko v. Jorgenson Steel Co., 290 Pa.Super. at 18, 23, 434 A.2d at 107, 110. See also Philadelphia Electric Company v. Hercules, Inc., 762 F.2d 303 (3rd Cir.1985) (applying Pennsylvania successor liability law).

Instantly, the plaintiffs have demonstrated that TRI by means of a de facto merger had become the corporate embodiment of Heyden. As previously described, Tenneco acquired all of the assets and liabilities of Heyden Newport in 1963. In exchange for Tenneco stock owned by HDN, Heyden transferred all its assets and liabilities to HDN Corporation, a wholly-owned subsidiary of Tenneco created for the purpose of acquiring Heyden Newport. Heyden Newport then changed its name to Denport Corporation and dissolved, immediately distributing its Tenneco shares to the former Heyden shareholders. In turn, HDN changed its name to Heyden Newport Chemical Corporation, then to Tenneco Chemicals and eventually to TRI. The fact that a de facto merger occurred is particularly evident when we consider that after the transaction between Tenneco and Heyden Newport, the new corporation transacted business under its former name for a period of time, all of Heyden Newport’s corporate officers were retained by the new entity and the sales agreement provided Heyden Newport had to dissolve itself and distribute its Tenneco stock. See Elmer v. Tenneco Resins, Inc., 698 F.Supp. 535 (D.Del.1988) (“the Court finds that there is a question whether HDN impliedly assumed any Thorotrast liability of Heyden ... It could reasonable be inferred ..., that HDN agreed to assume any and all liabilities of Heyden ... ”); Gee v. Tenneco, Inc., 615 F.2d 857, 863 (9th Cir.1980) (Tenneco documents are reasonably susceptible to conflicting interpretations and whether HDN assumed Thorotrast liabilities of Heyden is a question of fact).

In Gee v. Tenneco, Inc., 615 F.2d at 864, the Ninth Circuit, citing dicta from the California case of Ray v. Alad Corp., 19 Cal.3d 22, 560 P.2d 3, 136 Cal.Rptr. 574 (1977), stated “it would appear that the [Heyden-Tenneco] transaction falls within the de facto merger doctrine.” However, the Court, bound by its standard of review, refused to overturn summary judgment on this issue because it was not absolutely certain that the dicta in Ray v. Alad Corp., supra, concerning the de facto merger doctrine was the law of California. We need not hypothesize about Pennsylvania law regarding de facto merger; successor liability is imposed when the consideration for the purchase of assets consists wholly of shares of the purchaser’s stock which are then promptly distributed to the seller’s shareholders in conjunction with seller’s liquidation. Shannon v. Samuel Landston Company, 379 F.Supp. 797, 801 (W.D.Mich.1974). See also Philadelphia Electric Company v. Hercules, Inc., 762 F.2d 303 (3rd Cir.1985); Martin v. Johns-Manville Corp., 322 Pa.Super. 348, 371, 469 A.2d 655, 667 (1983). This is exactly what happened sub judice.

Similarly, we find that CPI is subject to the jurisdiction of Pennsylvania courts. In 1954, Testagar purchased the Thorotrast product line from American Cyanamid and manufactured and distributed Thorotrast in Pennsylvania in an essentially unchanged manner from that of Heyden. When Testagar purchased the Thorotrast product line from American Cyanamid, it expressly agreed to assume Thorotrast related liabilities. CPI is, through a series of statutory, consolidations and mergers, the current corporate embodiment of Testagar. The foregoing analysis demonstrates that Testagar was liable as the successor in interest to Heyden and American Cyanamid for Thorotrast related liabilities pursuant to the “product line exception”. Dawejko v. Jorgenson Steel Co., supra. It then follows that CPI, as the corporate embodiment of Testagar by means of statutory mergers and consolidations, is responsible for Testagar liabilities resulting from its continuation of Hey-den’s Thorotrast product line. Cf., Husak v. Berkel Inc., 234 Pa.Super. 452, 341 A.2d 174 (1975).

Having determined that both TRI and CPI are essentially the corporate embodiments of their predecessors (ultimately, Heyden) and, for the purposes of jurisdiction, liable for their predecessors’ acts, we turn to the question of whether due process is offended by subjecting a successor corporation to personal jurisdiction based on the forum related activity of its predecessor. As the following will explain, due process is not offended by subjecting TRI and CPI to personal jurisdiction in the Commonwealth of Pennsylvania.

In Duris v. Erato Shipping, 684 F.2d 352 (6th Cir.1982), aff'd sub nom., Pallas Shipping Agency, Ltd. v. Duris, 461 U.S. 529, 103 S.Ct. 1991, 76 L.Ed.2d 120 (1983), the Sixth Circuit found that, although the surviving corporation to a merger had never transacted business in Ohio, its constituent corporation had. It further found that under Ohio law, the surviving corporation was liable for all claims against the constituent corporation. Id., at 356. Therefore, the Court concluded that the plaintiff could gain personal jurisdiction over the surviving corporation merely by establishing Ohio contacts sufficient to exercise jurisdiction over the constituent corporation. To quote the Duris court, “Any other ruling would allow corporations to immunize themselves by formalistically changing their titles.” Id., at 356.

In Goffe v. Blake, 605 F.Supp. 1151 (D.Del, 1985), the district court held that the action and conduct of a constituent corporation could be attributed to its successor following a merger for the purpose of determining the successor’s amenability to personal jurisdiction for the liability of its predecessor. After so ruling, the court applied the District of Columbia long arm statute and the Due Process Clause to the predecessor corporation. Finding, personal jurisdiction was properly over the predecessor, it logically followed that the successor was amenable to personal jurisdiction in the same location. Id., at 1154-1156 (analysis and holding). Cf., Bowers v. Neti Technologies, 690 F.Supp. 349, 361 (E.D.Pa.1988) (If NHF is not subject to personal jurisdiction for its liabilities as successor corporation, corporations will be encouraged to immunize themselves by fleeing the jurisdiction and formalistically changing their names — a result clearly not supported by the Pennsylvania jurisdictional statute, citing 42 Pa.C.S.A. § 5301(b)); United States v. Bliss, 108 F.R.D. 127, (E.D.Mo.1985) (As foreign successor to corporation which acquired Missouri corporation and its liabilities, nonresident corporation was subject to jurisdiction under Missouri long arm statute).

Similarly, in Cole v. Caterpillar Machinery Corp., 562 F.Supp. 179 (M.D.La.1983), the court held that where a successor corporation to a merger had no contacts with the forum, it could still be subjected to in personam jurisdiction without offending due process requirements since plaintiffs claim arose against its predecessor and that the corporation once had significant contacts with the forum. The court specifically noted that as a result of the merger, the successor had assumed both the liabilities and the assets of its predecessor. Further, the court stated, “Since Americas [successor] could have availed itself of the benefits of the forum in order to sue for monies owed its corporate predecessor, it seems only fair that Americas, deriving benefits from the forum should also be expected to answer for liabilities incurred by the alleged negligent actions of its predecessor.” Id., at 180-181.

As previously noted, Judge Wright in Fehl v. S.W.C. Corp., supra, held that under Delaware law, personal jurisdiction may be assumed over a successor corporation on the basis of the acts of its predecessor in cases where a merger or continuation has preserved the corporate entity. Fehl, 433 F.Supp. at 947. Therein, the issue presented was whether a successor corporation could be subject to personal jurisdiction on the basis of actions taken by a predecessor corporation where the predecessor had sold the successor all the assets relating to a specific line of business rather than merged into the successor. Judge Wright determined that the plaintiff had not met its burden of demonstrating that the successor-defendant had absorbed its predecessor through merger or reorganization, and, consequently, the successor liability theory of jurisdiction failed. However, we reiterate that in Pennsylvania, successor liability has been expanded to include liability based on continuation of a predecessor’s product line. Dawejko v. Jorgenson Steel Co., supra. Thus, it is the opinion of this court that if current Pennsylvania successor liability law was applied to the facts presented to the Fehl court, the result would mirror the result we reach today with respect to appellant CPI. With respect to appellant TRI, the decision in Fehl v. S.W.C. Corp., supra, as it was decided thirteen years ago, continues to support our decision today.

Likewise, in Maryland National Bank v. Shaffer Stores Co., 240 F.Supp. 777 (D.Md.1965), the district court held that personal jurisdiction could be asserted pursuant to the Maryland long arm statute over the surviving corporation to a merger without violating the Due Process Clause. In so ruling, the court specifically rejected the defendant’s argument that since its sole contact with Maryland was as the successor, by several corporate mergers, to an obligor to a contract entered into in Maryland, it would be a violation of due process to subject it to suit in Maryland. Id., at 779.

In addition, the Court of Appeals of the State of Michigan, in Wiles v. B.E. Wallace Products Corp., 25 Mich.App. 300, 181 N.W.2d 323 (1970), held that a foreign corporation, as the alleged successor in interest to the sole proprietorship which had manufactured and sold the gantry that collapsed with resultant injury to plaintiff, could be subjected to jurisdiction under long arm statute based on its predecessors contact with the state if plaintiff could prove his allegations of fact. Thus, the question of jurisdiction over the foreign successor corporation was erroneously disposed of summarily by the trial court.

However, we emphasize that the acts of a predecessor will not be attributed to its successor when the transaction between the two amounts only to a sale of assets for adequate consideration. Harris v. Newmand Machine Company, Inc., 641 F.Supp. 146 (S.D.Miss.1986) (Due Process Clause did not permit subjecting foreign corporation which merged with manufacturer to jurisdiction in Mississippi where corporation’s only contact with Mississippi was purchase of the assets of predecessor which had sold equipment in forum, and after that time, had no contacts with the forum). See also Wines v. Lake Havasu Boat Manufacturing, Inc., 846 F.2d 40 (8th Cir.1988) (corporate defendant’s predecessor’s forum contacts would not be attributed to defendant for purposes of jurisdiction, where defendant’s predecessor purchased assets from an individual but did not assume any liabilities). This is consistent with our holding today since under Pennsylvania law the general rule of successor liability remains that when a company sells its assets to a successor, the successor does not acquire the liabilities of the transferor merely because of its succession to the transferor’s assets. Knapp v. North American Rocckwell, supra; Philadelphia Electric v. Hercules, supra; Dawejko v. Jorgenson Steel Co., supra. Accordingly, if a successor does not assume either voluntarily or by operation of law the liabilities of its predecessor, then the acts of its predecessor may not be attributed to the successor when answering the question of jurisdiction.

Instantly, it is without question that Heyden could have been subjected to general jurisdiction pursuant to 42 Pa.C.S.A. § 5301(a)(2)(iii) and (b), supra, for causes of action relating to its Thorotrast product line. Moreover, the same facts could have served as the basis for specific act jurisdiction pursuant to Pennsylvania’s long arm statute, 42 Pa.C.S.A. § 5322(a)(1), (a)(3), (b). At the time when Mrs. Boyer and Mrs. Simmer were administered Thorotrast at Children’s Hospital of Philadelphia, Heyden was the sole manufacturer of Thorotrast in the United States, and Heyden distributed Thorotrast in the Commonwealth of Pennsylvania. Certainly, the Due Process Clause is satisfied as Heyden “purposefully directed” its product Thorotrast at Pennsylvania residents, and the litigation arises directly from the manufacturer and distribution of the drug. Burger King Corp. v. Rudzewicz, 471 U.S. at 473-474, 105 S.Ct. at 2182-2183; Skinner v. Flymo, 351 Pa.Super. at 242-244, 505 A.2d at 621. Since sufficient “minimum contacts” exist between Heyden and Pennsylvania and those contacts relate directly to the causes of action before us, jurisdiction over TRI was properly exercised by the court below. Likewise, CPI, as successor to Testagar and Heyden, is subject to the personal jurisdiction of Pennsylvania courts, since sufficient “minimum contacts” exist between the subject matter of the litigation, Heyden and the Commonwealth of Pennsylvania. For a similar result see Bouley v. American Cyanamid Company, supra (personal jurisdiction over TRI retained).

In holding that the forum-related contacts of a predecessor corporation may be attributed to its successor for jurisdictional purposes when the successor has assumed its predecessor’s liabilities, we recognize the realities of modern corporate law and the ever increasing frequency of corporate reorganizations. Plaintiffs must be permitted to establish jurisdiction over a successor corporation based upon its predecessor’s contacts with the forum. Otherwise, a corporation which voluntarily or by the operation of law assumes its predecessor’s liabilities may be able to avoid the jurisdiction of the very forum where the liability accrued simply because it never did business within that forum. This result would be absurd especially when the assets purchased by the successor, at least in part, were derived from the forum and the successor no doubt had knowledge of its predecessor’s presence within the forum. Moreover, our holding today recognizes, from a public policy perspective, the nature of products liability actions and their relation to corporate reorganizations. Again, we quote Judge Wright:

The fact that the predecessor corporation may continue to possess substantial assets may afford protection to the ordinary contract creditors, whose claims are ascertainable at the time of the transfer. It does not necessarily protect products liability plaintiffs, since their claims are contingent and may not arise until long after the corporation is dissolved and its remaining assets distributed ... See, Note, “Assumption of Products Liability in Corporate Acquisitions”, 55 Boston Law Review 86.

Fehl v. S.W.C. Corp, 433 F.Supp. at 946, n. 10.

When a successor corporation assumes the liabilities of its corporate predecessors, the successor in effect consents to be held liable in the same locations where its predecessor would have been exposed, i.e. consents to the same jurisdictional qualities of its predecessor. The provisions of the Due Process Clause are not violated by imputing the predecessor’s actions and forum contacts upon its successor. As stated in Burger King v. Rudzewicz, 471 U.S. at 474, 105 S.Ct. at 2183, the critical question is whether “the defendant’s conduct and his connection with the forum state are such that he could reasonably anticipate being haled into court there.” No doubt in today’s sophisticated world of corporate takeovers, a corporation, which assumes another’s liabilities or purchases another’s product line, seriously considers the possible extent of any liabilities and where those liabilities may exist. We are convinced that the traditional notions of “fair play and substantial justice” central to the assertion of jurisdiction are in fact furthered by today’s decision.

In sum, we reiterate that successor corporations must be prepared to answer for the acts of their predecessors. A successor which through a merger, consolidation or de facto merger is the corporate embodiment of its predecessor must not be permitted to immunize itself in a specific jurisdiction from the liabilities of its predecessor. Likewise, a successor company which purchases and manufactures a predecessor’s product line cannot avoid the jurisdiction of those forums wherein the product was previously manufactured and distributed. In Pennsylvania, it is now the law that when the successor is subject to the liabilities of its predecessor, the acts of a predecessor corporation may be attributed to its successor for the purposes of determining whether jurisdiction is proper.

Orders affirmed. Cases remanded for further proceedings. Jurisdiction is relinquished.

      . Our review of the lower court’s determination has been complicated by the terseness of the court’s orders sustaining jurisdiction. The lower court, without an opinion espousing the theory/theories serving as the basis of its decisions, found that the Philadelphia Court of Common Pleas could exercise in personam jurisdiction over both appellants. He then entered orders declaring, “the question of In Personam jurisdiction presents a substantial, controlling question of both state and constitutional jurisdictional law, one that is a matter of first impression and which warrants immediate appellate review.” We strongly urge the trial court, when faced with future jurisdictional questions, to provide this court with an opinion outlining the factual and legal bases for its decision, rather than simply certifying the issue for appeal. However, rather than remand for explanation of the lower court’s decision, we will address the various theories of in personam jurisdiction raised by the plaintiffs-appellees to the extent necessary.

      . See Taft, Editorial: Prium Non Nocere, 51 Radiology 875 (1948); Budin, E. and Gershon-Cohen, J., The Danger of Cancer from Thorotrast as a Diagnostic Medium, 75 Am.J. of Roent. 1183 (1956); Council on Pharmacy and Chemistry, Report on Thorotrast, 99 J.Amer.Med. Assoc. 2183; Looney, William B., et al., Late Follow-up Studies after Internal Deposition of Radioactive Materials, 160 J.Amer.Med.Assoc. 1 (1956); 25 C.F.R. § 3.36 (1965); Hoffer, P.B., Introduction: Voices from the Past: A Brief History of Thorotrast, 1988 Yearbook of Nuclear Medicine, pp. 13-20 (1988).

      . To aid the reader, included in this opinion as Appendix A is a flow chart outlining the relationships between the various companies which are related in any way to Thorotrast. This chart was originally attached to appellees’ brief as Exhibit E.

      . The sales agreement specifically assigned all rights to Thorotrast related patents to American Cyanamid.

      . In Bouley v. American Cyanamid Company, et al., Slip Opinion, No. 85-4368-Z (D.Mass. Oct. 21, 1987), available at 1987 WESTLAW 18738, Judge Zobel noted that the Cyanamid-Testagar sales agreement contained a hold-harmless clause under which Testagar agreed to indemnify Cyanamid “against any claim for personal injuries, damages or destruction of property ... arising out of this agreement, the use, handling or inherent characteristics of the materials sold hereunder.” Bouley, Slip Op. at 10.

      . Although appellees raised numerous theories of jurisdiction below, we need only address the inextricably intertwined issues of successor liability and personal jurisdiction. However, for the reader’s benefit, we will list the jurisdictional issues as set forth by appellees.
      I. The lower court correctly concluded that Pennsylvania has personal jurisdiction over TRI based upon:
      A. TRI’s formal qualification as a foreign corporation in this Commonwealth between August 18, 1963 and June 11, 1984;

        B. TRI’s constructive presence in Pennsylvania by virtue of the attribution of its predecessor in interest’s (Heyden Newport Chemical Company) contacts with Pennsylvania in general and regarding Thorotrast in particular; and/or
      C. TRI’s own alleged tortious acts and activities towards Thorotrast victims related to this Commonwealth following its acquisition of Heyden and its specific undertaking to fulfill and perform all of Heyden’s obligations and liabilities.
      II. The lower Court correctly concluded that Pennsylvania has personal jurisdiction over CPI based upon:
      A. CPI’s constructive presence in Pennsylvania by virtue of its corporate predecessor's (Testagar and Company) alleged sale and distribution of Thorotrast to Children’s hospital;
      B. CPI’s constructive presence in Pennsylvania by virtue of its predecessor in interest’s (Heyden Newport Chemical Company) contacts with Pennsylvania in general and regarding Thorotrast in particular; and/or
      C. CPI's own alleged tortious acts and activities toward Thorotrast victims in this Commonwealth subsequent to its acquisition of Heyden’s product line.

      . § 5301. Persons

      (a) General rule. — The existence of any of the following relationships between a person and this Commonwealth shall constitute a sufficient basis of jurisdiction to enable the tribunals of this Commonwealth to exercise general personal jurisdiction over such person, or his personal representative in the case of an individual, and to enable such tribunals to render personal orders against such person or representative:
      ******
      (2) Corporations.—
      (i) Incorporation under or qualification as a foreign corporation under the laws of this Commonwealth.
      (ii) Consent, to the extent authorized by the consent.
      (iii) The carrying on of a continuous and systematic part of its general business within this Commonwealth.
      ******
      (b) Scope of jurisdiction. — When jurisdiction over a person is based upon this section any cause of action may be asserted against him, whether or not arising from acts enumerated in this section. Discontinuance of the acts enumerated in subsection (a)(2)(i) and (iii) ... shall not affect jurisdiction with respect to any act, transaction or omission during the period such status existed.

      . § 5322. Bases of personal jurisdiction over persons outside this Commonwealth

      (a) General rule. — A tribunal of this Commonwealth may exercise personal jurisdiction over a person (or the personal representative or a deceased individual who would be subject to jurisdiction under this subsection if not deceased) who acts directly or by an agent, as to a cause of action or other matter arising from such person:
      (1) Transacting any business in this Commonwealth. Without excluding other acts which may constitute transacting business in this Commonwealth, any of the following shall constitute transacting business for the purposes of this paragraph:
      (i) The doing by any person in this Commonwealth of a series of similar acts for the purpose of thereby realizing pecuniary benefit or otherwise accomplishing an object.
      (ii) The doing of a single act in this Commonwealth for the purpose of thereby realizing pecuniary benefit or otherwise accomplishing and object with the intention of initiating a series of such acts.
      (iii) The shipping of merchandise directly or indirectly into or through this Commonwealth.
      (iv) The engaging in any business or profession within this Commonwealth, whether or not such business requires license or approval by any government unit of this Commonwealth.
      (v) The ownership, use or possession of any real property situate within this Commonwealth.
      (2) Contracting to supply services or things in this Commonwealth.
      (3) Causing harm or tortious injury by an act or omission in this Commonwealth.
      (4) Causing harm or tortious injury in this Commonwealth by an act or omission outside this Commonwealth.
      ******
      (b) Exercise of full constitutional power over non residents. — In addition to the provisions of subsection (a) the jurisdiction of the tribunals of this Commonwealth shall extend to all persons who are not within the scope of section 5301 (relating to persons) to the fullest extent allowed under the Constitution of the United States and may be based on the most minimum contact with this Commonwealth allowed under the Constitution of the United States.
      (c) Scope of jurisdiction. — When jurisdiction over a person is based solely upon this section, only a cause of action or other matter arising from acts enumerated in subsection (a), or from acts forming the basis of jurisdiction under subsection (b), may be asserted against him.
      ******
      (e) Inconvenient forum. — When a tribunal finds that in the interest of substantial justice the matter should be heard in another forum, the tribunal may stay or dismiss the matter in whole or in part on any conditions that may be just.

      . We note that, generally, the facts of the cases .cited by appellee in favor of jurisdiction and relied upon by this court revolve around statutory mergers or consolidation, although the discussion of the issue in each case does not limit itself only to that situation. In Sullivan v. Fellows Testagar, supra, the Louisiana Court of Appeals rejected the very argument which we now embrace and found that TRI was not Heyden’s successor. We are unpersuaded by the Sullivan court’s analysis of the facts, and as the discussion infra will demonstrate, TRI was by means of a de facto merger, the successor to Heyden and liable for Heyden's acts.

      . We note that in Witt v. Scully, supra, the Third Circuit was not required to address the issue before us.

      . In using Dawejko v. Jorgenson Steel Co., 290 Pa.Super. 15, 434 A.2d 106 (1981), we simply apply by analogy the law of successor liability to that of personal jurisdiction in order to make the preliminary determination of whether, based on the facts as they have been developed at this early stage of litigation, the successor corporations should stand in the shoes of their predecessor/s.

      . In Martin v. Johns-Manville, supra, we stated, "We believe, however, that in some circumstances a successor should be held accountable for the recklessness of its predecessor. This will be so when the goals that underlie the imposition of punitive damages — punishment and deference — will be advanced. In this regard, we may draw from the various formulations of the rule permitting the imposition of successor liability when the successor is a mere "continuation” of its predecessor.” Citing Shannon v. Samuel Langston Co., supra.

      . Pennsylvania’s jurisdictional statutes are co-extensive with the Due Process Clause. Gulentz v. Fosdick, 320 Pa.Super. 38, 466 A.2d 1049 (1983), appeal after remand 355 Pa.Super. 302, 513 A.2d 440, appeal denied 515 Pa. 580, 583, 527 A.2d 541, 543; 42 Pa.C.S.A. § 5308 ("The tribunals of this Commonwealth may exercise jurisdiction under this subchapter only where the contact with this Commonwealth is sufficient under the Constitution of the United States.”); 42 Pa.C.S.A. § 5322(b).

      . We note that the issue now before us which was decided by the 6th Circuit Court of Appeals was not presented to the Supreme Court of the United States.

      . The Michigan decision is especially significant as our own general jurisdiction statute, 42 Pa.C.S.A. § 5301, was patterned after Michigan statutes, 27A.701, .711, .721 and .731. 42 Pa.C.S.A. § 5301, Historical note.

      . This is not to say that TRI and CPI ultimately will be liable for appellees’ injuries. If Heyden is found liable, then it must be determined who assumed this liability. Among numerous other substantive issues, there are disputes as to the provisions of the Heyden-Tenneco and Heyden-American Cyanamid contracts concerning assumption of liability for Thorotrast related injuries when the administration of the drug occurred before the sale of Thorotrast to American Cyanamid but the personal injury suit was not filed until well after the sale.


source: Caselaw Access Project

license: Public Domain

text:
    576 A.2d 392
    COMMONWEALTH of Pennsylvania, Appellant, v. Robert SCHAFER, Appellee.
    Superior Court of Pennsylvania.
    Submitted March 28, 1990.
    Filed June 18, 1990.
    Maxine J. Stotland, Asst. Dist. Atty., Philadelphia, for Com., appellant.
    Patricia Pierce, Philadelphia, for appellee.
    Before WIEAND, BECK and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from a final order entered in the Court of Common Pleas of Philadelphia County granting the appellee Robert Schafer’s motion to dismiss under Pa.R.Crim.P. 1100. We reverse.

The complex procedural history of this case is outlined below. On December 31, 1983, the Commonwealth filed a criminal complaint against Schafer charging him with possession of methamphetamine and possession with intent to deliver. At the preliminary hearing, the felony charge of possession with intent to deliver was dismissed for lack of a prima facie case. The misdemeanor charge of possession was remanded to Municipal Court. Trial was scheduled for February 23, 1984, but was continued to April 9, 1984 because defense counsel was unavailable. After another continuance, a new trial date was set for May 22, 1984. Due to the absence of a defense witness, the trial was again postponed until June 11, 1984. On that date, when the Commonwealth’s chemist failed to appear on time, the trial judge discharged the case without prejudice for lack of prosecution.

On July 26, 1984, the Commonwealth filed a second complaint against Schafer charging him with the same crimes: possession and possession with intent to deliver a controlled substance. Schafer was arrested pursuant to the new complaint. His preliminary hearing was scheduled and continued three times. Finally, on April 12, 1985, the trial court found that the Commonwealth had demonstrated a prima facie case on both charges.

Following the issuance of an information and Schaefer’s arraignment, a trial date was set for May 10, 1985. Due to the unavailability of defense counsel, the case was continued until July 12, 1985. On May 16, 1985, the Commonwealth filed a petition for extension of time under Rule 1100. Thereafter, defense counsel was unavailable for trial several times and the case was continued again.

On August 5, 1986, the trial court granted Schafer’s motion to dismiss. The trial judge later vacated his order. After three additional continuances, the trial judge reversed his order and recused himself. The case was listed for trial on September 24, 1987.

On September 18, 1987, Schafer filed his answer to the Commonwealth’s May 16, 1985 petition to extend Rule 1100 and a motion to dismiss. The trial judge heard argument on the matter and granted Schafer’s motion to dismiss under Rule 1100 on March 22, 1988. On April 4, 1988, the Commonwealth filed a petition for reconsideration, which was denied. This appeal followed.

The sole issue on appeal is whether the trial court erred in dismissing Schafer’s case under Rule 1100. The parties disagree as to whether the Rule 1100 time period began to run at the filing of the first complaint or the second complaint. The trial court calculated the period beginning at the filing of the first complaint.

The Commonwealth posits that Rule 1100 was not violated in this instance. It asserts that the Rule 1100 period began at the filing of the second complaint. Conversely, Schafer argues that the trial court’s calculation was proper and that the Commonwealth failed to timely file its petition to extend Rule 1100. Schafer also contends that he was prejudiced by the delays because the physical evidence was destroyed and one of the defense witnesses died in 1987.

Schafer, in his summary of argument, states:

The lower court correctly ruled that under the facts of this case where the Commonwealth initiates prosecution on more than one charge in a single complaint; the charges arise out of the same transaction, occurring at the same exact time; one, but not all, of the charges is dismissed at a preliminary hearing; the Commonwealth had the ability to establish a prima facie case on both charges but failed to do so through sheer ineptitude; the case proceeds to trial on the remaining charge; the remaining charge is then dismissed because a witness the Commonwealth knew it had to produce, was not procured; and the Commonwealth subsequently re-arrests on all the charges; the time for calculating Rule 1100 did not begin anew with the filing of a second complaint, but was properly calculated from the filing of the first complaint.

(Appellee’s brief, at 8). After a review of the parties’ briefs and the applicable law, we disagree.

In Commonwealth v. Gehman, 381 Pa.Super. 244, 553 A.2d 447 (1989), we encountered a situation similar to the case sub judice. In Gehman, the issue was whether the appellant’s speedy trial rights were violated. There, three criminal complaints were filed against the appellant and subsequently dismissed. The parties agreed that if the 180-day time period was calculated from the dates of the first or second complaint, the appellant’s trial was not timely. Conversely, if the period ran from the date of filing of the third complaint, the appellant’s trial was timely. The Gehman court concluded that “the 180 days ran from the filing of the third complaint, and appellant’s trial was timely.” Id., 381 Pa.Superior Ct. at 248, 553 A.2d at 449. It relied on the Pennsylvania Supreme Court’s decision in Commonwealth v. Simms, 509 Pa. 11, 500 A.2d 801 (1985) and stated:

[In Simms, the Pennsylvania Supreme Court] clarified the standard for determining when the Rule 1100 period begins to run when multiple complaints have been filed against a defendant. The Court explained that:
[W]hen an initial complaint has been withdrawn or otherwise dismissed, the 180-day period begins to run anew with the filing of a subsequent complaint only if (1) the earlier complaint was properly dismissed by a competent magisterial or judicial authority, and (2) the record does not reveal evidence of a prosecution attempt to circumvent Rule 1100. Id., 509 Pa. at 15, 500 A.2d at 803.

Gehman, 381 Pa.Super. at 247, 553 A.2d at 449.

In the instant case, the felony charge against Schafer was dismissed because the Commonwealth did not establish a prima facie case. The remaining charge, possession of a controlled substance, was subsequently dismissed for lack of prosecution. This court has held that a discharge for failure to demonstrate a prima facie case constitutes a proper ground for dismissal for purposes of Rule 1100. Id.; Commonwealth v. Davies, 342 Pa.Super. 318, 324, 492 A.2d 1139, 1142 (1985). Moreover, there is no indication in the record, nor do the parties claim on appeal, that the Commonwealth’s actions represented an attempt to circumvent Rule 1100. See also Commonwealth v. Knox, 330 Pa.Super. 136, 479 A.2d 1 (1984) (calculation of 180 days under Rule 1100 began with the date of filing of the second complaint where the first complaint was properly dismissed for the Commonwealth’s failure to establish a prima facie case and where the Commonwealth did not attempt to circumvent the requirements of the Rule).

In Commonwealth v. Whiting, 509 Pa. 20, 500 A.2d 806 (1985), the Pennsylvania Supreme Court was confronted with a situation where the Commonwealth moved to dismiss the original complaint against the defendant. Subsequently, a second complaint was filed against the defendant. The issue in Whiting was how to compute time under Rule 1100 where the magistrate dismissed the complaint against the defendant pursuant to the Commonwealth’s motion to dismiss. After thorough review, the Court concluded that since the Commonwealth’s motion was based on lack of evidence (it could not sustain a prima facie case) and was not motivated by bad faith considerations, the computation time under Rule 1100 began at the date of filing the second complaint. The Court stated:

Thus, where a prosecution is voluntarily terminated, and the record shows an attempt to manipulate or evade the requirements of Rule 1100, the speedy trial time period will be computed from the date of the original complaint. But where the record does not show that the Commonwealth’s termination of the prosecution was designed to manipulate or evade the requirements of Rule 1100, the time for computing the speedy trial period runs from the date of the later complaint.

Id., 509 Pa. at 24, 500 A.2d at 808.

We find that the circumstances of the instant case conform to the requirements of Simms and its progeny. Therefore, the 180-day speedy trial period began to run at the filing of the second complaint.

Order reversed. Case remanded for further proceedings. Jurisdiction relinquished.

      . See Pa.R.Crim.P. 1100(a)(2) which provides:
      Trial in a court case in which a written complaint is filed against the defendant, ... shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.

      . The preliminary hearing was initially scheduled for November 19, 1984. For reasons attributable to both the defense (the first continuance was granted because Schafer was in the hospital; the second continuance resulted from counsel’s illness) and the Commonwealth (the third continuance was granted because the Commonwealth’s chemical expert was not available), the preliminary hearing was held on April 12, 1985.

      . By order dated September 19, 1984, it was averred that the instant case, among others, had been "disposed of or exceptionally cleared and [that there were] no appeals pending.” On October 15, 1984, the physical evidence in this case was destroyed.
      At the August 5, 1986 hearing on Schafer’s motion to dismiss, the trial court held that the Commonwealth’s destruction of the physical evidence against Schafer amounted to a due process violation. (We note that the drugs were tested prior to their destruction and that the laboratory report contains the results of the tests.) See N.T., January 31, 1984, at 32; April 12, 1985, at 4-5, 28-31.
      The Commonwealth appealed the trial court’s order granting Schafer’s motion to dismiss. This court quashed the appeal without prejudice because in the interim, the trial court vacated its order to reconsider its contents. Ultimately, the order was reversed.
      The instant case was subsequently continued three more times.

      . The first complaint was filed on December 31, 1983. Therefore, the "rúndate” (180 days thereafter) was June 28, 1984. Using this method of computation, the Commonwealth’s petition to extend, filed May 16, 1985, was untimely.

      . Schafer relies on Commonwealth v. Leatherbury, 499 Pa. 450, 453 A.2d 957 (1982) on remand to 322 Pa.Super. 222, 469 A.2d 263 (1983) and Commonwealth v. Johnson, 487 Pa. 197, 409 A.2d 308 (1979) in support of his position. These cases stand for the proposition that in cases of multiple complaints, the 180 days begin to run at the date of filing of the first complaint. The time is then tolled between the dismissal of the first complaint and the filing of the second complaint. While neither of these cases have been expressly overruled, they both pre-date the Pennsylvania Supreme Court’s decision in Commonwealth v. Simms, 509 Pa. 11, 500 A.2d 801 (1985), discussed infra., which held that the 180-day calculation period begins anew with the filing of the second complaint as long as the first complaint was properly dismissed and there is no evidence of a Commonwealth attempt to evade the mandates of Rule 1100. Id., 509 Pa. at 15, 500 A.2d at 803. See also Commonwealth v. Davies, 342 Pa.Super. 318, 324-25 n. 5, 492 A.2d 1139, 1142 n. 5 (1985) (discussing Leatherbury ).

        See also

      N.T., March 16, 1988, at 1-18. Schafer also cites to Commonwealth v. Earp, 476 Pa. 369, 382 A.2d 1215 (1978); however, Schafer’s reliance on Earp is misplaced. Earp is distinguishable on its facts and is not dispositive of the instant appeal. See Commonwealth v. Genovese, 493 Pa. 65, 70-71 n. 11, 425 A.2d 367, 370 n. 11 (1981) (explaining Earp).

      . We note that the holding in Simms is narrow. Simms involved a case where the first complaint charged the defendant with aggravated assault. Thereafter, a second complaint was filed charging the defendant with criminal homicide. The defendant argued that there was not a proper dismissal of the first complaint and so, in accordance with the case law, the 180-day period did not begin anew with the filing of the second complaint. Simms, 509 Pa. at 15, 500 A.2d at 803.
      However, in Simms, when faced with the task of determining which filing marked the beginning of the 180-day period under Rule 1100, the Pennsylvania Supreme Court concluded that the date of the filing of the second complaint governed. The court held that since the complaints contained different charges, there was no danger that the Commonwealth filed the second complaint in order to circumvent Rule 1100. Id.

      We also clarify that the Simms court did not create the two pronged . test set forth above. Rather, it echoed the rule enunciated in a prior Superior Court case, Commonwealth v. Ardolino, 304 Pa.Super. 268, 450 A.2d 674 (1982) and ultimately upheld it. As our Supreme Court stated:
      The keystone of judicial decisions applying Rule 1100 has been a recognition that an abuse of the spirit of that Rule would occur if the Commonwealth were permitted to delay trials by simply, at will, withdrawing or dismissing complaints and filing new ones, thereby beginning anew the 180 day period for commencement of trial. In response to this potential means of evading the intent of Rule 1100, a body of case law has developed which defines the limited circumstances under which the period for trial will be deemed to run anew when a complaint subsequent to the first complaint is filed, [citations omitted]. In the case primarily relied upon by appellant. Commonwealth v. Ardolino, 304 Pa.Super. 268, 273-77, 450 A.2d 674, 677-79 (1982), the Superior Court reaffirmed its established rule that, when an initial complaint has been withdrawn or otherwise dismissed, the 180 day period begins to run anew with the filing of a subsequent complaint only if (1) the earlier complaint was properly dismissed by a competent magisterial or judicial authority, and (2) the record does not reveal evidence of a prosecution attempt to circumvent Rule 1100.

        Id. 509 Pa. at 14-15, 500 A.2d at 803 (emphasis added). We find that Simms is controlling authority, as its reasoning was adopted in later Rule 1100 cases dealing with the problem of multiple complaints. See Commonwealth v. Trill, 374 Pa.Super. 549, 543 A.2d 1106 (1988). Additionally, see Commonwealth v. Davies, 342 Pa.Super. 318, 492 A.2d 1139 (1985); Commonwealth v. Taraschi, 327 Pa.Super. 179, 475 A.2d 744 (1984); Commonwealth v. McClain, 325 Pa.Super. 29, 472 A.2d 630 (1984).
      Finally, Simms is worthy of note because therein, our Supreme Court stressed the importance of a proper dismissal of the first complaint where the second complaint repeats the same charges. This safeguard prevents an evasion of the Rule 1100 180-day time period. See Simms, 509 Pa. 11, 15-16, 500 A.2d 801, 803 (1985).

      . Schafer alleges that the Commonwealth should have rearrested him immediately on the felony charge, and further, that the Commonwealth had access to the witnesses before the charges were dismissed; however, the trial court did not find that the Commonwealth acted in bad faith, and there is no evidence in the record to convince us that the Commonwealth was trying to evade Rule 1100. See Appellee’s brief, at 15-16; Appellant’s reply brief, at 2-3. See also Commonwealth v. Knox, 330 Pa.Super. 136, 479 A.2d 1 (1984) (presents a scenario reflective of the circumstances of the instant case where the first complaint was dismissed due to the absence of a witness). In Commonwealth v. Genovese, 493 Pa. 65, 425 A.2d 367 (1981), the Pennsylvania Supreme Court stated, “[t]he administrative mandate of Rule 1100 certainly was not designed to insulate the criminally accused from good faith prosecution delayed through no fault of the Commonwealth.” Id., 493 Pa. at 70, 425 A.2d at 370.

      . The record reflects that the second complaint was filed on July 26, 1984. The “rúndate” was Jánuary 22, 1985. Excluding the days that the appellant and his counsel were unavailable, the amended "run-date” was June 5, 1985. See Commonwealth v. Trill, 374 Pa.Super. 549, 557, 543 A.2d 1106, 1110 (1988) ("Rule 1100 excludes from the computation of the 180-day time frame any period of delay that results from ‘the unavailability of the defendant or his attorney.' ” Pa.R.Crim.P. 1100(c)(3)(i)). Thus, the Commonwealth’s Petition to Extend Rule 1100 was timely filed on May 16, 1985.


author: DEL SOLE, Judge:

text:
    576 A.2d 396
    John A. RADVAN, Jr., an Individual, and Betty Jean Radvan, his Wife, Appellants, v. GENERAL ELECTRIC CO., a New York Corporation; Comstock Company, Inc., Successor-in-interest to Patterson-Emerson-Comstock, Inc. a Pennsylvania Corporation and Wean United, Inc., Successor in-Interest to United Engineering and Foundry Co., an Ohio Corporation, Appellees.
    Superior Court of Pennsylvania.
    Argued March 21, 1990.
    Filed June 20, 1990.

      John H. Eaton, Pittsburgh, for appellants.
    Richard L. McMillan, Pittsburgh, for appellees.
    Before CAVANAUGH, DEL SOLE and HUDOCK, JJ.
   DEL SOLE, Judge:

John A. Radvan, Appellant, brought suit for personal injuries against L.K. Comstock and Company, Inc., Appellees. At the close of Radvan’s case, the trial court entered an order for a compulsory non-suit in favor of Comstock. Radvan appeals, we affirm.

On November 15, 1983, Radvan was injured while working on a weld and side trim machine at an Allegheny Ludlum Steel plant. Radvan was feeding interleaf paper into the machine when the roller pulled his hand, and then his entire arm into‘the machine, His arm was completely crushed and partially severed. The weld and side trim machine had been designed for Allegheny Ludlum by Com-stock’s predecessor-in-interest, Patterson-Emerson-Com-stock, Inc., and was built by General Electric Co. Although Radvan’s original complaint alleged theories of negligence, strict liability and breach of warranty against multiple defendants, all defendants except Comstock were released. Radvan proceeded to trial against Comstock on a products liability theory. The trial court granted Comstock’s motion for a non-suit because it found that Radvan’s suit was barred by the twelve year statute of repose for construction projects found in 42 Pa.C.S.A. § 5536 On appeal, Radvan raises the issue of whether 42 Pa.C.S.A. § 5536 is applicable in this case. We hold that it is and affirm the order of the trial court.

The Pennsylvania Supreme Court recently addressed this issue in McCormick v. Columbus Conveyer Co., 522 Pa. 520, 564 A.2d 907 (1989). James F. McCormick was permanently partially disabled when his right arm was caught in the belt conveyor of a coal delivery system while he was working in the powerhouse of Bucknell University. McCormick brought a products liability action against Columbus Conveyer Company, Rust Engineering Company and Sordoni Construction Company. Rust and Sordoni were both granted summary judgments based on 42 Pa.C.S.A. § 5536. Columbus then filed a motion for summary judgment which was granted and McCormick appealed.

The Supreme Court held that the belt conveyer was part of the coal delivery system which was an improvement to real property. The Supreme Court then looked to see if Columbus was within the class of persons 42 Pa.C.S.A. § 5536 was enacted to protect. It held that the proper inquiry was “whether Columbus performed or furnished the design, planning, supervision of construction, or construction of an improvement____” 522 Pa. at 525, 564 A.2d 907. McCormick argued to the Supreme Court that Columbus was simply the manufacturer of the conveyor and the statute should not bar a products liability action against it. But the Supreme Court held that because McCormick had alleged in his complaint that Columbus, along with the other defendants, had jointly and severally designed, manufactured and sold the conveyor, he could not now change his allegations to avoid the statute. Columbus had taken part in the design, planning, supervision of construction or construction of a conveyor “uniquely suited to that site.” 522 Pa. at 526, 564 A.2d 907. Columbus was not “simply the manufacturer of a particular machine which [was] related to the realty only by the fact it is bolted to the floor____” 522 Pa. at 526, 564 A.2d 907. Consequently, the Supreme Court affirmed the grant of summary judgment in favor of Columbus.

Applying McCormick to our present case, it is clear that Comstock comes under the protection of the statute. The trial court found that the weld and side trim machine was an improvement to real property because it had been in place for more than thirty years; it had never been moved since its installation; it was bolted to the floor and was connected to conduit piping for power; and because its “weight was in dozens of tons and it would have been very difficult to dismantle.” A review of the record supports the finding of the trial court.

Comstock provided specific installation and engineering services for Allegheny Ludlum’s Brackenridge plant in 1951 when the machine was installed. Radvan does not dispute this fact. Comstock was engaged in “the design, planning, supervision or observation of construction or construction” of an improvement to real property. It is exactly this group of people that 42 Pa.C.S.A. § 5536 was written to protect. Because Radvan’s suit was filed in 1983, thirty-two years after the installation of the weld and side trim machine, the trial court was correct in finding it barred by the twelve year statute of repose in 42 Pa.C.S.A. § 5536.

Order affirmed.

      . 42 Pa.C.S.A. § 5536(a) reads:

        General Rule — Except as provided in subsection (b), a civil action or proceeding brought against any person lawfully performing or furnishing the design, planning, supervision or observation of construction, or construction of any improvement to real property must be commenced within 12 years after the completion of construction of such improvement to recover damages for:
      (1) Any deficiency in the design, planning, supervision or observation of construction or construction of the improvement.
      (2) Injury to property, real or personal, arising out of any such deficiency.
      (3) Injury to the person or for wrongful death arising out of any such deficiency.
      (4) Contribution or indemnity for damages sustained on account of any injury mentioned in paragraph (2) or (3).


author: TAMILIA, Judge:

text:
    576 A.2d 398
    Dale OATESS, Appellant, v. Jeffrey A. BEARD, Superintendent of the State Correctional Institution at Cresson.
    Superior Court of Pennsylvania.
    Submitted May 14, 1990.
    Filed June 22, 1990.

      Dale Oatess, pro se.
    Dennis A. Kistler, Asst. Atty. Gen., Lancaster, for Beard, appellee.
    Before TAMILIA, CERCONE and HESTER, JJ.
   TAMILIA, Judge:

Appellant, proceeding pro se, is an inmate at the State Correctional Institution (SCI) at Cresson and has brought this breach of contract action against appellee, the superintendent. The facts are not in dispute. On March 7, 1989, appellant submitted a purchase request form for legal labels which was approved two days later by the principal of SCI’s school. A check was written on appellant’s account on March 10th, but the purchase was interrupted on March 17th when appellant received a note saying approval was being withdrawn. Appellee confirmed the withdrawal of approval on March 20, 1989, stating in a note to appellant the labels were not an approved item. Appellant’s account was subsequently credited with the purchase amount. Appellant claims the failure to approve the legal labels was a breach of contract in that the Inmate Handbook, on page 17, states, “You may purchase any legal materials you believe to be valuable to you in seeking legal remedies.”

Initially, we must determine whether this case was properly appealed to the Superior Court. Since it is not a habeas corpus action involving legality of sentence or treatment by a prisoner which could raise issues of cruel and inhuman punishment, Superior Court jurisdiction is not directly implicated. Szymanski v. Allegheny Co. Ct. Criminal Div., 77 Pa.Cmwlth. 316, 465 A.2d 1081 (1983); Goldsborough v. Burk, 4 Pa.Cmwlth. 513, 288 A.2d 555 (1972). While the action sounds in the nature of a breach of contract based upon an Inmate Handbook, it also implicates the management of the prison and therefore falls under the original jurisdiction of the Commonwealth Court. Gillespie v. Com., Dept. of Corrections, 106 Pa.Cmwlth. 500, 527 A.2d 1061 (1987); Wilson v. Com., Pa. Bureau of Corrections, 85 Pa.Cmwlth. 32, 480 A.2d 392 (1984). It is provided in 42 Pa.C.S. § 761 Original jurisdiction:

(a) General rule. — The Commonwealth Court shall have original jurisdiction of all civil actions or proceedings:
(1) Against the Commonwealth government, including any officer thereof, acting in his official capacity....

However, the nature of this action as such makes it equally an action against the superintendent as an individual as opposed to the superintendent in his official capacity. Since neither party has contested the jurisdiction of the Superior Court and the issue as proposed is a purely legal one of interpreting the effect of a handbook, without involving issues of statewide impact or policies of the Bureau of Corrections, we believe this is a matter which can be resolved with equal facility by the Commonwealth Court or Superior Court. For the sake of judicial economy, therefore, we retain jurisdiction and will resolve the matter on its merits.

The trial court, finding that the Inmate Handbook is not a contract, but may be likened to an employee handbook, granted appellee’s preliminary objection in the nature of a demurrer and dismissed appellant’s complaint.

The promise alleged by plaintiff to exist here is evidenced by the first sentence of paragraph number one (1) on page 17 of the Inmate Handbook. (Exhibit “C” to plaintiffs Complaint). This sentence reads “[y]ou may purchase any legal materials you believe to be valuable to you in seeking legal remedies.” However, there is no corresponding detriment from the inmates sufficient to elevate this “promise” to a legally enforceable contract. Such an exchange is clearly absent in the present case due to the nonvolitional nature of the inmates’ relationship with the Department of Corrections.
In the absence of such consideration, a “promise inducing detrimental reliance may be enforceable if the elements of Sec. 90 of the Restatement (Second) of Contracts are present.” Darlington, [v. General Electric ], [350 Pa.Super. 183, 193-94,] 504 A.2d [306,] at 311 [1986]. The “promisor” in this case, SCI-CS, could not reasonably be said to have intended to induce reliance by the prisoner-recipients of the Inmate Handbook, in that the prisoners had no choice but to enter the institution. There was no element of choice present in their act of doing so, and thus no active and volitional reliance, and no contract.

Slip Op., Leahey, J., 10/17/89, p. 5.

In the recent case of Morosetti v. LA. Land & Exploration Co., 522 Pa. 492, 564 A.2d 151 (1989), our Supreme Court was faced with the question of whether a company policy of severance pay was an enforceable contract between employer and employee. The policy was contained in a personnel manual which was not given to employees, nor were the provisions revealed to the employees. The Court said:

Again, it is basic contract law that ... there must be an intended, definite, specific offer before any offer can be accepted or any enforceable contract created. One cannot suppose that another made an offer, was willing to make an offer or intended sometime to do so. Minds, for contractual obligation, must meet upon definite, specific things.
The learned trial judge fell into error when he equated an uncommunicated personnel manual with a “handbook.” The employees here however, could show no more than an employer’s internal consideration of a policy for what might be given when occasion arose. It is not sufficient to show they had a policy. It must be shown they offered it as binding terms of employment. A company may indeed have a policy upon which they intend to act, given certain circumstances or events, but unless they communicate that policy as part of a definite offer of employment they are free to change as events may require.

Id., 522 Pa. at 495-96, 564 A.2d at 153.

As the trial court found, the contract law principles outlined above are applicable in the instant case. Appellant, as an inmate, did not “accept” an offer from the SCI and there was no “meeting of the minds” upon the terms of the handbook. The handbook contains administrative directives concerning aspects of prison life and entitlements of prisoners. The fact that legal labels are not approved items under the above quoted section of the handbook does not constitute a breach of contract. The administrative office of corrections is free to disallow certain requests made by inmates for items such as legal labels, and if circumstances require revision of the handbook or of the list of approved items, the corrections office may freely do so. As the trial court stated, appellant was not hindered in pursuing his legal action because he had to type the exhibit numbers instead of using labels. For the foregoing reasons, we affirm.

Order affirmed.

      . Specifically, the small adhesive labels used to mark exhibits.


text:
    576 A.2d 400
    COMMONWEALTH of Pennsylvania v. Gary R. BARTLEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 14, 1990.
    Filed June 22, 1990.
    Larry Puntureri, New Castle, for appellant.
    William M. Panella, Dist. Atty., New Castle, for Com., appellee.
    Before TAMILIA, CERCONE and HESTER, JJ.
   TAMILIA, Judge:

Appellant brings this appeal from the judgment of sentence entered November 3, 1989 following his conviction of selling a non-controlled substance upon representation it was a controlled substance and selling a non-proprietary drug. Following his conviction, appellant filed timely post-verdict motions, which the trial court denied in a September 27, 1989 Opinion and Order. The trial court subsequently sentenced appellant to serve a two (2) to four (4) year term of imprisonment. The trial court denied appellant’s motion to modify sentence, and appellant now appeals to this Court.

Appellant contends the trial court’s utilization of the prior record score of six, which allegedly took two robbery convictions into account, compromised the sentencing scheme as a whole. He bases his assertion on the fact that the robbery convictions did not precede commission of the principal offense and thus could not be included in prior record score calculations. See Commonwealth v. Wolfe, 349 Pa.Super. 415, 421, 503 A.2d 435, 439 (1986). We agree with appellant’s analysis under Wolfe, however, although we have carefully examined the record and pre-sentence report which we requested from the Lawrence County Clerk of Courts, we are unable to determine with certainty what appellant’s prior record score would be with and without the robberies. A guidelines sentencing form apparently was not prepared and the crimes and dates of prior offenses contained in the pre-sentence report are not always consistent. Based on all of the information before us, therefore, we reject appellant’s contention the sentencing scheme may have been compromised. Appellant’s conviction under 35 P.S. § 780-113(a)(35) is a felony punishable by imprisonment not exceeding five years or a fine not exceeding ten thousand dollars ($10,000) or both. 35 P.S. § 780 — 113(i). Appellant’s sentence then is clearly within the applicable legal limits.

Since our pronouncement in Wolfe, the Supreme Court has restricted the rigid application of guideline provisions in establishing a sentence. Rather, it has relied more on the total application of the sentencing code as a whole, permitting the trial judge broad discretion within that code and limiting our review to a determination of whether the trial judge has complied with the general requirements of the code based on adequate information supplied by a pre-sentence report. The sentencing court is under no obligation to employ checklists or any systematic definitions of its punishment procedure. Commonwealth v. Devers, 519 Pa. 88, 96, 546 A.2d 12, 18 (1988). The sentencing guidelines are merely that — guidelines. The sentencing court, having been fully informed by the complete pre-sentence report, is entitled to have its decision left undisturbed. Id. Accordingly, we presume, as we must, the sentencing court properly pronounced sentence as it did, where the court has before it the pre-sentence report and the sentence was within legal limits.

In the instant case, a pre-sentence report was available to the court prior to sentencing. Additionally, defense counsel stated, at the time of sentencing, he had no objection to the court’s consideration of the pre-sentence report (S.T., 11/3/89, p. 1). Because the record clearly shows the sentencing court was fully informed by the pre-sentence report, and there was extensive dialogue between counsel and the court concerning the sentencing report, guidelines and the extent of the sentence, we defer to the discretion of the sentencing court in imposing sentence.

Judgment of sentence affirmed.

      . 35 P.S. § 780-113(a)(35)(ii).

      . Appellant was also found guilty of violating 35 P.S. § 780-113(a)(15) and sentenced to six (6) to twelve (12) months incarceration, that sentence to run concurrent to that on appeal.

      . We admonish the Lawrence County District Attorney’s Office for its failure to file its brief in this case. Merely because this case has been submitted and not argued before the Court does not entitled appellee to shirk its obligations to this Court.