author: KELLY, Judge:

text:
    606 A.2d 495
    COMMONWEALTH of Pennsylvania v. Gordon Schreiber MILLER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 22, 1991.
    Filed April 3, 1992.
    Petition for Allowance of Appeal Denied Aug. 6, 1992.

      Shawn A. Bozarth, Harrisburg, for appellant.
    Andrea P. McKenna, Deputy Atty. Gen., Harrisburg, for the Com., appellee.
    Before WIEAND, MONTEMURO and KELLY, JJ.
   KELLY, Judge:

In this opinion we are called upon to determine, inter alia, whether appellant, Gordon Miller, was properly charged and convicted of false swearing, 18 Pa.C.S.A. § 4903, when a more specific charge was available under the Liquor Code, 47 Pa.S. § 4-403(b). We conclude that appellant was improperly convicted of false swearing and vacate the conviction as to that charge. In all other respects, appellant’s judgment of sentence is affirmed.

The relevant facts and procedural history are as follows. Appellant entered into a written agreement to purchase Lombardo’s Restaurant from the corporate entity Bob Freedman’s Inc. Under the terms of the agreement, appellant was to make monthly payments of $1,000 to the shareholders and indemnify them for up to $20,000 in tax payments. Appellant was also required to renegotiate the restaurant’s lease, carry all necessary insurance and comply with all relevant governmental rules and regulations. At the time of the purchase agreement, Bob Freedman’s Inc. had filed for Chapter 11 bankruptcy under the Bankruptcy Code.

Subsequent to the agreement being signed, appellant met with a representative for the Attorney General’s office to discuss payment of sales tax which the corporation owed and with the landlord to reaffirm and amend the restaurant’s lease. He also applied for a Sunday liquor license, indicating on the application that $2,000 in sales tax had been paid when, in fact, it had not.

Appellant was thereafter tried and convicted of willful failure to file sales tax returns, willful failure to file employer withholding tax returns, willful failure to account for and pay over withheld income taxes, and false swearing. Post-verdict motions were filed and denied, and appellant was sentenced to an aggregate prison term of eleven and one-half to twenty-three months imprisonment, and ordered to pay restitution of $66,540.00. This timely appeal followed.

Appellant raises the following issues for our consideration:

A. IS ONE WITH ONLY LIMITED INVOLVEMENT WITH A BUSINESS NOT PRIMARILY RESPONSIBLE FOR THE PAYMENT OF ITS TAXES?
B. SHOULD A SPECIFIC STATUTE GOVERN CONDUCT AT ISSUE RATHER THAN A GENERAL ONE?
C. IS THE COURT’S SENTENCE EXCESSIVE AND INAPPROPRIATE IN THE CIRCUMSTANCES?

Appellant’s Brief at 2. We address these issues seriatim.

Appellant initially contends that he was not the individual primarily responsible for paying the taxes for the corporate entity. Appellant argues that his involvement in the business was limited and that he was never on notice or aware of his obligation to pay taxes. As a mere “interloper” who had no right to manage, control, or own the establishment, appellant concludes he cannot properly stand convicted of failure to pay the establishment’s taxes.

The Commonwealth counters that the evidence clearly established appellant as the individual responsible for filing sales tax and employer withholding tax returns. The Commonwealth contends that appellant’s active participation in activities incident to the operation of the restaurant and bar was sufficient to establish that he was, in fact, the individual in effective control of the business during the period of time relevant to the charges. Because appellant was primarily responsible for the operations of the restaurant, the Commonwealth concludes that appellant was properly charged, tried and convicted of the instant tax offenses.

The trial court, relying to a large extent on 18 Pa.C.S. § 307, found that the Commonwealth had met its burden of establishing that appellant was primarily responsible for the corporation’s tax payments. Section 307 states, in pertinent part:

(e) Persons acting or under a duty to act for organizations.
(1) A person is legally accountable for any conduct he performs or causes to be performed in the name of a corporation or an unincorporated association or in its behalf to the same extent as if it were performed in his own name or behalf.
(2) Whenever a duty to act is imposed by law upon a corporation or an unincorporated association, any agent of the corporation or association having primary responsibility for the discharge of the duty is legally accountable for a reckless omission to perform the required act to the same extent as if the duty were imposed by law directly upon himself.

18 Pa.C.S. § 307(e)(1), (2). Because the evidence, according to the trial court, established the “scope and detail of the managerial and administrative duties executed by appellant; the court concluded that appellant was guilty of the tax offenses charge.

In Commonwealth v. Stone, 187 Pa.Super. 225, 144 A.2d 614 (1958), aff'd 395 Pa. 584, 150 A.2d 871 (1959), this Court held that, “[individuals are subject to indictment under the guise of a corporation where the individual so dominated and controlled the corporation as to immediately direct its action.” Id. 187 Pa.Super. at 229, 144 A.2d at 616. In Commonwealth v. Klinger, 369 Pa.Super. 526, 535 A.2d 1060 (1987), the president of a corporation attempted to escape personal liability for failing to pay a franchise tax, arguing that it was the corporation alone who was responsible. In rejecting this claim, this Court, relying on the aforementioned quote from Commonwealth v. Stone, supra, found that the evidence had clearly demonstrated appellant’s personal control and domination over the affairs of the corporation. Id., 369 Pa.Superior Ct. at 536, 535 A.2d at 1064-65. While Klinger did not deal specifically with 18 Pa.C.S. § 307, the Court, in a footnote, suggested that it was arguable that appellant was “criminally responsible for nonpayment of the oil company franchise tax by virtue of 18 Pa.C.S. § 307(e) which imposes legal accountability on one acting or under a duty to act for a corporation.” Id., 369 Pa.Superior Ct. at 536 n. 9, 535 A.2d at 1065 n. 9.

Recently, in Commonwealth v. Smallhoover, 389 Pa.Super. 375, 567 A.2d 1055 (1989), this Court was asked whether the vice-president and general manager of an oil and gas company could be held individually responsible for failing to pay the company franchise tax. In concluding that he could, this Court again stated that individuals who dominate and control the affairs of a corporation so as to direct its action, may be held criminally responsible for the failure to pay corporate taxes. Id., 389 Pa.Superior Ct. at 583, 567 A.2d at 1058.

Instantly, review of the record reveals that, after signing the sales contract, appellant began to exhibit control over the day to day affairs of the restaurant, including the hiring of those in management positions. See N.T. 10/25/89 at 67-69, 78-79. Appellant met with a representative of the Commonwealth to arrange the payment of taxes that were owed, id. at 50; contacted the landlord to renegotiate the lease, id. at 42; and applied for a Sunday liquor license, id. at 115. Viewing the evidence in the light most favorable to the Commonwealth, as we must, this evidence sufficiently demonstrates that appellant personally controlled and/or dominated the affairs of Lombardo’s Restaurant so as to subject him to criminal liability under the relevant tax statutes. Thus, this claim is without merit.

Appellant next contends that the Commonwealth improperly prosecuted him under a general criminal statute when a more specific and less serious statute was applicable. Specifically, appellant argues that the prosecution should have proceeded under the Liquor Code, namely section 4-403(h) instead of under the general charge of false swearing, 18 Pa.C.S. § 4903.

The Commonwealth argues that because the two statutes did not prohibit the same conduct, they do not irreconcilably conflict with one another and thus, prosecution under the general was permissible. The trial court agreed. We cannot.

It is the well-settled law of this Commonwealth that prosecutions under general provisions of a penal code are prohibited where applicable special provisions are available. Commonwealth v. Warner, 504 Pa. 600, 606-08, 476 A.2d 341, 344 (1984); Commonwealth v. Brown, 346 Pa. 192, 199, 29 A.2d 793, 796-97 (1943). However, our Supreme Court has held that this general policy is only applicable “where the conflict between the statutes is irreconcilable.” Commonwealth v. Warner, supra, 504 Pa. 476 A.2d at 344. Thus, “[e]ven if the two [statutory sections] have identical elements in the sense that the special wholly encompasses the general, so long as the general has elements outside the special, the Commonwealth is not precluded from pursuing both charges in one trial.” Id.

In Commonwealth v. Warner, supra, our Supreme Court was presented with the task of applying these rules to the question of whether one could be properly charged with both theft by deception under the Crimes Code and a violation of the Welfare Code’s prohibition against making false statements. There, our Supreme Court determined that because the provision of the Welfare Code under which the defendant was prosecuted prohibited both attempts to secure and the actual securing of welfare benefits, it was not in irreconcilable conflict with the general provision of theft by deception, 18 Pa.C.S.A. § 3922(a), which pertained only to the actual cashing of welfare checks to which the defendant was not entitled. The Warner Court took care to observe that because there was no irreconcilable difference between the statutes on their face, pre-trial motions were not the appropriate vehicle to challenge the “propriety of the prosecutions.” Commonwealth v. Warner, supra, 504 Pa. at 346, 476 A.2d at 345-346. The more appropriate course of action was to allow the evidence to be developed and file post-trial motions in arrest of judgment, such as was done instantly.

Similarly, this Court was recently faced with the question of whether defiant trespass, 18 Pa.C.S.A. § 3503(b), should be considered a “special” penal provision where defendants are charged with breaking into a fenced enclosure. 18 Pa.C.S.A. § 3503(a). Appellants in Commonwealth v. Evans, 393 Pa.Super. 500, 574 A.2d 1051 (1990), had argued that because they had entered and remained in a place where they were not privileged, the Commonwealth was precluded from charging them under the general crime of criminal trespass, and was obliged to proceed under what appellants termed the special provision of “defiant trespass.” 18 Pa.C.S.A. § 3503(b). In concluding that no conflict existed, this Court held:

even if we consider defiant trespass to be a “special provision” and criminal trespass to be a “general provision,” because the criminal trespass subsection of 18 Pa.C.S.A. § 3503(a) has the element of entry by subterfuge, by surreptitious remaining or by breaking, which is absent from 18 Pa.C.S.A. § 3503(b), the Commonwealth may prosecute under either or both provisions.

Commonwealth v. Evans, 393 Pa.Superior Ct. at 509, 574 A.2d at 1056. In reaching this conclusion, the Court remarked that the general policy forbidding prosecutions under general penal provisions (when more specific were available) had been used where the crime alleged was prohibited by both

(1) specific forgery provisions of the Pharmacy Act and general forgery provisions of the Crimes Code, (2) specific forgery and unlawful voting provisions of the Election Code and general perjury and unsworn falsification provisions of the Crimes Code, (3) specific false statement provisions of the Unemployment Compensation Law and general false pretense provisions of the Penal Code, and (4) specific false pretense provisions of the Nonprofit Medical and Dental Service Corporation Act of 1939 and general false pretense provisions of the Penal Code.

Id., 393 Pa.Superior Ct. at 508, 574 A.2d at 1055, citing Commonwealth v. Warner I, 309 Pa.Super. 386, 392, 455 A.2d 663, 666 (1982). Thus, where the general provision is wholly subsumed by the special, i.e. the general statute has no elements which may distinguish it from the special, the two statutes are said to “irreconciably conflict,” and the prosecution must proceed under the special statute.

Instantly, therefore, the dispositive question posed is whether the general charge of false swearing is wholly subsumed by the special charge found in the liquor code. We find that it is.

The crime of false swearing is defined at 18 Pa.C.S.A. § 4903 as follows:

(a) False swearing in official matters. — A person who makes a false statement under oath or equivalent affirmation, or swears or affirms the truth of such a statement previously made, when he does not believe the statement to be true is guilty of a misdemeanor of the second degree if:
(1) the falsification occurs in an official proceeding; or
(2) the falsification is intended to mislead a public servant in performing his official junction.

18 Pa.C.S.A, § 4903(a) (emphasis added).

The applicable provision of the Liquor Code provides: § 4-403 Applications for hotel, restaurant and club liquor licenses.
******
(h) If any false statement is intentionally made in any part of the application, the affiant shall be deemed guilty of a misdemeanor and, upon conviction, shall be subject to the penalties provided by this article.

47 Pa.S. § 4-403(b). The penalty provision, § 4-471, provides for a wide range of penalties which include, but are not limited to, license suspension or revocation and fines up to five thousand dollars.

Appellant was found guilty of violating 18 Pa.C.S.A. § 4903(a)(2), making a false statement under oath with the intent to mislead a public servant in the performance of his/her official function. The more specific section of the liquor code, Section 4-403(h), makes it a misdemeanor to intentionally make a false statement in any part of a liquor license application. Each charge contains the element of intent. Each charge contains an element of misrepresentation. The only distinction apparent is that one intentional misrepresentation is made to a person and the other on an application. However, because all liquor license applications are ultimately reviewed by officials of the Liquor Control Board, we cannot conceive of any intentional false statement being placed on an application for a liquor license (violation of § 4-403(h)) with anything other than the intent to mislead a Board official, ie., a public servant. Any such distinction, therefore, is wholly illusory. 18 Pa.C.S.A. § 4903(a)(2) contains no elements outside of the applicable provision of the Liquor Code, 47 Pa.S. § 4-403(b). Accordingly, we conclude that the specific statute under the Liquor Code precluded prosecution under the general false swearing provision of the Crimes Code, and appellant’s conviction in this regard must be vacated.

Appellant’s remaining claim is that the sentence imposed was excessive under the circumstances. This challenge is to a discretionary aspect of the sentence imposed. In Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), our Supreme Court announced that Pa.R.A.P. 2119(f) required parties seeking to challenge the discretionary aspects of sentence to set forth in a separate portion of their brief a concise statement of the reasons relied upon for seeking allowance of appeal from the discretionary aspects of sentencing. Id., 513 Pa. at 511-512, 522 A.2d at 19. No 2119(f) statement can be found in appellant’s brief. The Commonwealth is aware of this omission and has made a proper objection. Under these circumstances we are precluded from addressing the merits of appellant’s challenge. Commonwealth v. Tuladziecki, supra; Commonwealth v. Krum, 367 Pa.Super. 511, 518, 533 A.2d 134, 138 (1987) (en banc). Hence, allowance of appeal must be denied.

For the foregoing reasons, appellant’s conviction on the count of false swearing is vacated and appellant is discharged as to that count. In all other respects, judgment of sentence is affirmed.

      . 72 Pa.S. § 7268(b).

      . 72 Pa.S. § 7353(c).

      . 72 Pa.S. § 7353(b).

      . 18 Pa.S. § 4903(a).

      . See Commonwealth v. Bryant, 524 Pa. 564, 567, 574 A.2d 590, 592 (1990).

      . We note additionally that appellant has failed to raise the appearance of a substantial question. The court placed on the record the reasons for the sentence imposed and had before it and considered a presentence report. The weight to be given mitigating factors is solely within the discretion of the trial court, and absent extraordinary circumstances not present herein, we will deny allowance of appeal to such challenges. Commonwealth v. Moran, 369 Pa.Super. 109, 112, 534 A.2d 1103, 1104 (1987).

      . While we have vacated appellant’s conviction of false swearing, we have not upset the trial court's sentencing scheme in the instant case. Appellant’s eleven and one-half to twenty-three month sentence on the false swearing conviction was to run concurrently to the eleven and one-half to twenty-three month aggregate sentence on the remaining counts. See N.T. 6/13/90 at 7. Because the court’s sentencing scheme has not been compromised, remand for resentencing is unnecessary. See Commonwealth v. Goldhammer, 512 Pa. 587, 593, 517 A.2d 1280, 1283 (1986) (when sentencing scheme is vague at best, remand for resentencing is appropriate).


source: Caselaw Access Project

author:
OLSZEWSKI, Judge.
      HUDOCK, Judge

license: Public Domain

text:
    606 A.2d 500
    COMMONWEALTH of Pennsylvania v. Jay Edward POLLOCK, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 10, 1991.
    Filed April 3, 1992.

      Alfred Jones, Jr., State College, for appellant.
    Philip L. Zulli and Timothy P. Wile, Asst. Dist. Attys., Harrisburg, for Com., appellee.
    Before OLSZEWSKI, HUDOCK and BROSKY, JJ.
   OLSZEWSKI, Judge.

This is an appeal from a judgment of sentence entered by. the Court of Common Pleas of Dauphin County after the court found appellant guilty of violating § 4901(a) and § 4941(a) of the Motor Vehicle Code, 75 Pa.C.S. § 101, et seq. We agree with the judgment and, therefore, affirm.

Before delving into the issues of the case, its procedural history deserves close scrutiny. We recognize a number of procedural improprieties that were committed at the trial level. The pertinent facts and the procedural posture of the case are as follows.

On March 21, 1990, appellant Jay Pollock was driving a tractor and lowboy trailer upon which he carried another vehicle. A traffic problem resulted on Route 322 in Dauphin County when Pollock’s vehicle had difficulty passing under an overpass. A police officer who was called to the scene of the problem directed appellant to move his vehicle to a location in Susquehanna Township. There, the officer measured the vehicle and found that it was ten inches over the permissible height. The officer at that point found that Pollock’s permit was invalid because it exceeded the height limitation stated in the permit. The officer called the State Police Special Weights and Measures Team which weighed appellant’s vehicle and found that it weighed 149,-350 pounds, or 144,869 pounds after a three percent allowance for error. This was over the 80,000 pound maximum allowed for such vehicles without a permit. Because Pollock’s permit had been invalidated, the fine which the police imposed was based upon a weight violation in excess of the 80,000 pound limit and not the 146,000 pound limit allowed by Pollock’s hauling permit.

A district justice found appellant guilty of the violations charged and appellant sought a de novo trial in the court of common pleas. On October 17, 1990, the trial was held and appellant was found guilty. At that time, the trial court improperly rendered a verdict and sentenced appellant, although a judgment of sentence was not placed on the record. On October 25, 1990, Pollock filed post-trial motions in which he sought a new trial and to arrest judgment. The acceptable procedure would have been for the trial court to render a verdict, allow Pollock to file post-trial motions, and then pronounce sentence. Commonwealth v. Hurst, 367 Pa.Super. 214, 532 A.2d 865 (1987). In this case, Pollock’s timely post-trial motions were ruled upon by the trial court and, therefore, Pollock was not prejudiced by the simultaneous renderings. Id.; Commonwealth v. Shinn, 368 Pa.Super. 436, 534 A.2d 515 (1987). Although notice of appeal must be filed within thirty days of sentencing, 42 Pa.C.S. § 5571; Pa.R.A.P. § 903; Commonwealth v. Smith, 348 Pa.Super. 10, 501 A.2d 273 (1985), and should be from final orders, 42 Pa.C.S. § 742, Pollock filed this appeal on April 16, 1991 and appealed from the order denying his post-trial motions. In instances such as this, however, where the trial court has failed to advise a convicted party of his post-trial and appellate rights as required by Pa.R.C.P. 1405, this Court has granted review. See Commonwealth v. Eliason, 353 Pa.Super. 321, 509 A.2d 1296 (1986), allocatur denied, 517 Pa. 592, 535 A.2d 81 (1987); Commonwealth v. Hurst, 367 Pa.Super. 214, 532 A.2d 865 (1987). In addition, there was no judgment of sentence from which Pollock could have appealed. It appears that a motion to quash the appeal was filed and denied in this case, although the record before us is devoid of any such motion. On July 8, 1991, this Court entered an order remanding the case to the trial court so that it could properly place a judgment of sentence on the docket within twenty days. We note that the trial court complied with the order insofar as it entered a judgment of sentence. Now that the muddy procedural waters have been cleared, we move to the seven issues presented for our review.

First, appellant believes that the trial court erred in finding appellant’s special hauling permit invalid. He asserts that 67 Pa.Code § 179.10(8), which subjects a permit to confiscation when the holder is operating under a violation of the permit itself or a violation of the chapter of the regulations which deals exclusively with height and weight restrictions, or invalidates the permit when the permit application contains false information, is not within the regulatory power of the Pennsylvania Department of Transportation (hereinafter “PennDOT”) and is beyond legislative intent. We find that this issue is devoid of merit.

PennDOT derives its general rule making power from the state legislature as found in 75 Pa.C.S.A. § 6103 (Purdon 1991) which provides, in pertinent part:

(a) General rule. — In addition to the specific powers granted to the department by this title to promulgate rules and regulations, the department shall have the power ... to promulgate, consistent with and in furtherance of this title, rules and regulations in accordance with which the department shall carry out its responsibilities and duties under this title.

Further, PennDOT derives its power with respect to permits from 75 Pa.C.S.A. § 4962 (Purdon 1977) which provides, in pertinent part:

(a) General rule. — Permits may be conditioned by limiting the number of trips or establishing seasonal or other time limitations or geographic limitations including limitations as to prescribed highways or by otherwise limiting or prescribing conditions of operation under the permits as the department or local authorities shall deem necessary to protect the safety of highway users, to promote the efficient movement of traffic or to protect the highways.
******
(c) Revocation of permit. — A permit shall be revocable for cause.

(Emphasis added.)

Pursuant to the authority granted by the legislature, PennDOT promulgated motor vehicle regulations concerning oversize and overweight loads and vehicles. See 67 Pa.Code § 179.1-179.17. 67 Pa.Code § 179.10(8) provides:

Invalidation of permit. The permit shall be subject to confiscation by the violation of a condition specified therein or by the violation of this chapter. The permit shall be automatically invalidated by the giving of false information on the permit application.

When PennDOT promulgated this regulation, it was acting under the authority of 75 Pa.C.S.A. § 6103 and § 4962. In addition, PennDOT was furthering the intent of the legislature when it deemed it necessary to confiscate permits when vehicles operate in violation of issued permits or of the motor vehicle regulations which deal directly with height and weight restrictions, or to invalidate permits that were obtained by use of false information. This is consistent with the legislative intent to protect the safety of highway users, promote efficient movement of traffic, and protect the highways. Height restrictions are necessary to effect all of these legislative concerns. Thus, not allowing a party to proceed under a permit when that permit runs contrary to the concerns expressed by the legislature is in the best interests of all highway users.

Our Supreme Court has been faced with the issue of PennDOT’s statutory authority to promulgate 67 Pa.Code § 179.10(8). In Austin v. Commonwealth, 65 Pa.Cmwlth. 434, 442 A.2d 832 (1982), rev’d on other grounds, 500 Pa. 620, 459 A.2d 336 (1983), the Commonwealth Court ruled that § 179.10(8) had been duly promulgated. The Supreme Court, when reversing the Commonwealth Court on different grounds, did not rule that PennDOT did not have proper authority to promulgate § 179.10(8). Rather, the Supreme Court addressed the issue of “whether the regulations promulgated by PennDOT are all of a piece and whether, therefore, violation of any of the regulations precipitates the penalties available for all infractions regardless of their purpose.” Austin, 500 Pa. at 622, 459 A.2d at 337.

In Austin, the Supreme Court decided that a driver who had violated PennDOT safety regulations that were not covered by his hauling permit could not have his permit automatically invalidated, despite the demands of 67 Pa. Code § 179.10(8). At that time, § 179.10(8) provided:

The permit shall be automatically invalidated by the violation of any condition specified therein, by the violation of these regulations or by the giving of false information on the application for the permit____

The Supreme Court did not find that § 179.10(8) was invalid in toto; rather, the Court found that the section was wrong to automatically invalidate permits when the driver was in violation of unrelated safety provisions of PennDOT’s regulations. Id., 500 Pa. at 623-24, 459 A.2d 338. Sec. 179.10(8) was then rewritten so that it now provides for the confiscation of a permit if the driver is in violation of a specific provision of the issued permit or if the driver is in violation of the chapter of the regulations which deals exclusively with oversize and overweight vehicle restrictions. The section has retained the portion whereby permits are automatically invalidated if they are obtained by the giving of false information. Thus, the revised § 179.10(8) is not as broad as the § 179.10(8) which the Austin Court found to be offensive.

In Austin, the driver was in violation of a safety regulation that was not covered by his permit. In the instant case, the operator was clearly in violation of a specific provision (the height limitation) of the permit which was in his possession. Under § 179.10(8), his permit was confiscated for a “violation of a condition specified therein,” not for an infraction of a safety regulation that was not included in his permit. Thus, this case is factually distinct from Austin.

As to the application of § 179.10(8) to the instant case, we find that Trooper Albert properly confiscated Pollock’s special hauling permit when he measured the vehicle and determined that it exceeded the height limit that was stated on the face of the permit. Pollock was in “violation of a condition specified therein,” (i.e., a condition specified in the permit) and not, as was defendant Austin, in violation of an unrelated safety provision. As such, all violations which were found subsequent to the measuring of the truck were properly treated as being without a permit. It would have been absurd for the trooper to allow the vehicle, which was in excess of the permitted height, to proceed down the road as though the driver was still in possession of a permit. Such action (or rather, inaction) on the part of the trooper would have contravened the intent of the legislature that our highways be kept safe and traffic movement be kept efficient.

The dissent notes that there is no indication that Pollock drove his truck after the permit was confiscated and believes that only if Pollock had proceeded once his permit had been confiscated could he have been treated as if he had no permit. The dissent believes that this is the only situation in which a fine under § 4941(a) would have been proper. We do not agree. As previously stated, confiscation for a violation of the permit’s height restriction was proper. At the point it was confiscated, Pollock was without a permit. Had any person at any time later attempted to drive the truck, the operation would have been without a permit. It is unreasonable to expect the police to patrol the vehicle until someone attempts to move it and only then to treat them as proceeding without a permit.

In addition, Pollock’s permit was “automatically invalidated by the giving of false information on the permit application.” The trucking company applied for a permit for the specific vehicle which Pollock later drove, and stated on the application that the vehicle was 162 inches in height. The vehicle was actually 172 inches in height; therefore, the company provided false information on the application. Sec. 179.10(8)’s use of “shall” does not make invalidation discretionary. If a permit is procured fraudulently, it is as though a permit was never, in fact, procured. Thus, Pollock’s permit was automatically invalidated upon the giving of the false information and Pollock never had a valid permit. As stated by the trial court, “It would be clearly nonsensical to allege that a driver is forbidden to begin a trip with a particular vehicle without a valid permit, but could be allowed to continue one without one.” Trial court opinion at 7-8. Accordingly, we find appellant’s first issue to be without merit.

Second, Pollock asserts that Trooper Albert did not have probable cause to stop the vehicle and, as such, the results of the subsequent measuring and weighing of the vehicle were inadmissible at trial. We find no merit in this assertion. Articulable and reasonable grounds, rather than probable cause, are necessary to stop a motor vehicle. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Commonwealth v. Berry, 305 Pa.Super. 8, 451 A.2d 4 (1982); 75 Pa.C.S. § 6308(b). Trooper Albert articulated at trial that he had received a police radio message that a vehicle was causing traffic congestion. He went to the site specified in the message and found Pollock, with his vehicle already through the overpass, attempting to pull his vehicle to the side of the road. Because the vehicle was wider than the roadside, it blocked the flow of rush hour traffic. Without dwelling anymore on the facts as they relate to this issue, we find that the trial court properly found that Trooper Albert had articulable and reasonable grounds to stop Pollock and check the appropriate forms, including the special hauling permit, as authorized by 75 Pa.C.S. § 6308(b).

We further find that Trooper Albert did not violate Pollock’s Fourth Amendment rights against unlawful search and seizure when he measured and weighed Pollock’s vehicle. In line with 75 Pa.C.S. § 4981(a) and Berry, we believe that the officers were within constitutional boundaries when they acted. The stop was based upon articulable and reasonable grounds, the governmental interest in regulating large vehicles so as to maintain safe roads outweighs appellant’s privacy rights in the vehicle, and the checks of the vehicle were minimally intrusive. Accordingly, the stopping, measuring, and weighing of the vehicle did not violate Pollock’s Fourth Amendment rights and did not render inadmissible the evidence which resulted from the procedures.

Third, Pollock believes that testimony regarding the height of the overpass was hearsay and improperly admitted at trial. We find no merit in this contention. Hearsay is an out-of-court declaration that is offered to prove the truth of the matter asserted. Commonwealth v. Coleman, 458 Pa. 112, 326 A.2d 387 (1974). Appellant states that evidence of the overpass height “impacts not only on the establishment of a violation of Defendant’s special hauling permit but also on the probable cause to arrest Defendant and weigh his vehicle.” Appellant’s brief at 25. This is a concession that evidence of the height of the bridge did not go to the truth of the matter asserted (i.e., height of the bridge). The testimony in question asserted that the bridge was 13'11" in height. The testimony, however, was not offered to prove the true height of the bridge but rather, as Pollock concedes, to establish that Trooper Albert had reasonable grounds to believe that Pollock’s vehicle exceeded the height allowed by his hauling permit and that the subsequent measuring and weighing were justified. As such, testimony of the height of the overpass was not hearsay and was admissible.

Fourth, appellant believes that the trial court erred in admitting testimony of the steel tape measure used to measure the height of the vehicle because the tape measure had not been authenticated. We disagree. We note that evidence which a party seeks to offer at trial must be authenticated by other evidence establishing a connection between the offered evidence and the parties or events which are the subject of the litigation. See Packel & Poulin, Pennsylvania Evidence § 901 (1991). As appellant concedes, “The tape was never offered at trial.” Brief for appellant at 25. Thus, there was no need to authenticate the tape.

What was offered as evidence was the testimony of Trooper Albert, the person who used the tape measure in question to check the height of appellant’s vehicle. Trooper Albert’s testimony of the measurement was not hearsay, as appellant might like us to believe. Trooper Albert’s testimony regarding the tape measure concerned what he read (i.e., personally observed) on the tape measure. The testimony did not go to the truth of the matter that the truck was 172 inches, it went to Trooper Albert’s personal observations of what he saw on the tape measure when it was extended from the top of the vehicle to the bottom of the vehicle. This does not fall within the meaning of hearsay. It was an out-of-court observation rather than an out-of-court statement, and went to the trooper’s personal observations and beliefs of what he saw on the tape measure rather than to the true height of the truck. It was the duty of the fact finder to then weigh the testimony to determine what value would be afforded the observation. We conclude, therefore, that there was no need to authenticate the tape measure and there was nothing wrong with the trial court permitting testimony by Trooper Albert of what he read on the tape measure.

Fifth, appellant believes that the evidence regarding the scales used to weigh his vehicle was wrongly admitted because such evidence resulted from a reading of a scale that had been certified by the Department of General Services rather than by the Department of Agriculture as mandated by 75 Pa.C.S. § 4981(e). We believe appellant should have done his homework before presenting this Court with outdated statutory law. These responsibilities were transferred to the Department of General Services in 1986. 71 P.S. § 751-38(4).

¿13] Sixth, appellant believes that the trial court erroneously admitted testimony regarding the equipment used to test the scales used to weigh the vehicle. Appellant believes that the Commonwealth should have produced certificates to show that the testing equipment was properly approved. We disagree. The scales used were certified and calibrated and the certification was properly admitted as Commonwealth Exhibit 2. This, however, is not enough for Pollock. He would like certification of the equipment used to certify the scales. But since the Commonwealth is not even required to prove the accuracy of its scales to meet its burden of proof that a weight violation occurred, Commonwealth v. Hennemuth, 294 Pa.Super. 360, 439 A.2d 1241 (1982), we are not willing to impose a burden upon the Commonwealth to prove the accuracy of all equipment used in the chain of testing.

Finally, appellant believes that Commonwealth Exhibits 2 and 3 were admitted into evidence without proper foundation. Appellant describes Exhibit 2 as a document which PennDOT gives to recipients of special hauling permits. Brief for appellant at 28. We have before us the trial exhibits and Exhibit 2 is the Department of General Services scale certification. Because there is no exhibit in the record as described by appellant, appellant’s argument as to Exhibit 2 is moot.

As to Exhibit 3, we disagree with appellant’s argument that it was improperly admitted into evidence. Appellant believes the exhibit, a copy of the application which Earthmovers, appellant's employer, filed with PennDOT in order to receive the special hauling permit, is hearsay and required the laying of a foundation as required under the business records exception to the hearsay rule. We find that the exhibit was not hearsay because it was not offered to prove the truth of what it contained (i.e., that the vehicle was the height and weight stated on the application) but was offered to prove that a certain height and weight permit was applied for by appellant's employer. This went to the Commonwealth’s core assertion that Pollock’s hauling permit was invalid because false information was provided in the application. The exhibit merely shows that the height for which Earthmovers applied was not in accord with the height which the police found the vehicle to be. Thus, a foundation as required for hearsay exceptions was not required for the application.

For the foregoing reasons, we find appellant’s arguments to be without merit and affirm the judgment of sentence.

HUDOCK, J., concurring and dissenting.

HUDOCK, Judge

concurring and dissenting.

I join in the disposition of all of the issues raised on appeal save one. While I, like the majority, would affirm the judgment of sentence imposed upon Appellant for the § 4901 conviction, I respectfully dissent from the majority’s affirmance of the § 4941(a) conviction. I believe the disposition of that conviction is controlled by our Supreme Court’s decision in Commonwealth v. Austin, 500 Pa. 620, 459 A.2d 336 (1983).

In Austin, supra, Austin had obtained a permit to haul an oversized and overweight load, i.e., a bulldozer. In transit, however, he violated several safety regulations promulgated by PennDOT. Namely, the vehicle had not been accompanied by two pilot cars and had not displayed “OVERSIZED LOAD” placards. After Austin was cited for these violations pursuant to § 4901(a), his vehicle was weighed and found to be overweight. Hence, Austin was also cited for operating an overweight vehicle pursuant to § 4941(a). Following conviction, Austin was fined $50 for the safety regulation violation and $20,400, plus costs, for the overweight violation. Commonwealth Court affirmed the judgment of sentence. Our Supreme Court vacated Austin’s conviction for operating an overweight vehicle, holding:

The loss of a permit in mid-transit would itself be no small penalty to one who might thus be grounded with an unmovable load. The different penalties provided by the PennDOT regulation address different objectives, each designed to punish and prevent different wrongs. We hold, therefore, that the automatic invalidation of a permit by violation of the safety regulations is a penalty in and of itself and does not trigger all the penalties possible under the regulations.

Id., 500 Pa. at 623, 459 A.2d at 338. See also, Commonwealth v. J.F. Lomma, Inc., 404 Pa.Super. 185, 590 A.2d 342 (1991) (violation of safety regulations do not trigger penalties for width and weight restriction violations). The Commonwealth attempts to distinguish Austin, supra, from the present appeal because the latter involves a violation of a height restriction of the special hauling permit rather than a related safety regulation. I find this to be a distinction without a difference. Section 179.10(8) of the Pennsylvania Code, both as it existed when Austin was decided and currently, includes violations of the conditions specified in the permit and the related regulations. Moreover, Austin and Appellant were both first cited for a § 4901(a) violation. Essential to the holding in Austin is that the automatic invalidation of a permit does not trigger all the possible penalties under the regulations. In other words, the invalid permit does not invalidate the permit ab initio, and, therefore, place the driver in the same position he would have been in had he never sought and received a permit.

Applying the Austin holding/ to the present case, the confiscation or invalidation of a permit for a height violation does not trigger the weight regulations of the Vehicle Code as if the permit was never issued. Indeed, it is only if the vehicle “is found to be operating off the approved route indicated in the permit, [that] the amount of overweight is determined as if there were no permit.” 67 Pa.Code § 179.-16(b)(2). See also, Commonwealth v. Liver, 360 Pa.Super. 205, 520 A.2d 56 (1987) (while on unauthorized highway, overweight permit holder has no greater right than operator who has no permit at all).

Given the above statutory and case authority, I cannot agree with the effect given by the Commonwealth and my colleagues to the automatic invalidation of a permit. The majority, as did the trial court, states “that it would have been absurd for the trooper to allow the vehicle, which was in excess of the permitted height, to proceed down the road as though the permit was still valid.” (Majority Opinion at p. 76.) There is no indication in the record that Appellant proceeded after his permit was confiscated. Indeed, it was only at the direction of the police officer that Appellant moved his vehicle after being stopped. Thus, Appellant lost his permit in mid-transit and was “grounded with an unmovable load.” Commonwealth v. Austin, supra, 500 Pa. at 623, 459 A.2d at 338. Had Appellant proceeded after his permit was confiscated, Appellant should have been treated as if he had no permit. It is only in this situation that the fine imposed under § 4941(a) by the trial court and affirmed by the majority would be correct.

I would affirm Appellant’s judgment of sentence for the § 4901(a) conviction and vacate the judgment of sentence in regard to the § 4941(a) conviction.

      . General rule. — It is unlawful for any person to drive or move, or for the owner to cause or permit to be driven or moved, on any highway any vehicle or vehicles of a size or weight exceeding the limitations provided in this chapter or any vehicle or vehicles which are not so constructed or equipped as required in this title or the regulations of the department.
      75 Pa.C.S.A. § 4902(a) (Purdon 1977).

      . General rule. — No vehicle shall, when operated upon a highway, have a gross weight exceeding 73,280 pounds, and no combination driven upon a highway shall have a gross weight exceeding 80,000 pounds,____
      75 Pa.C.S.A. § 4941(a) (Purdon 1991).

      . Pollock’s hauling permit allowed his vehicle to be 162 inches. The officer measured the vehicle at 172 inches.

      . We recognize that in appellant’s post-trial motions at paragraph 16 and in his brief at pages six and nine, he states that the permit allowed his vehicle to weigh 156,000 pounds. We have reviewed the permit which was entered by the Commonwealth as Exhibit 1 and find that it is absolutely specific and clear that 146,000 pounds was the limit. The permit is typewritten and there is no indication, as appellant’s counsel suggested to this panel at oral argument, that the figure has been written over or tampered with in any way.

      . In Hurst, this Court recognized similar errors committed by the same trial judge who ruled upon this case. In that appeal, we admonished the trial court for not conforming to procedural requirements. We now express our concern that the irregularities have continued, and remind that trial court of its obligation to follow procedural mandates.

      . The trial court did not, however, comply with the twenty-day deadline and did not enter the judgment until August 26, 1991.

      . Chief Justice Roberts noted in his concurring opinion in Austin, "[T]here is no indication of a legislative intent to deem a vehicle with a proper overweight permit to be ‘overweight’ for purposes of penalty provisions merely because of unrelated safety violations.” Id., 500 Pa. at 624, 459 A.2d at 338 (emphasis added). This is additional indication that the instant case is distinct from Austin. Whereas Austin had a valid permit, Pollock never obtained a proper permit. See infra p. 515 (discussion of automatic invalidity of appellant’s permit for supplying false information on the application).

      . We must place great emphasis on the safety concerns of this state; as such, we must uphold the Motor Vehicle Code and its enforcing regulations. We do not believe a fine such as the one imposed in this case is unreasonable when weighed against the possible damage to lives, roads, and property that could result from driving a vehicle that is too large for the road. However, we believe the time has come for the legislature to revisit the statutes that place liability upon drivers of trucks who may not be as responsible as the owners/trucking companies. In many instances, it is a trucking company that applies for a hauling permit, and then the driver is held responsible when his vehicle does not adhere to the permit. Drivers may face the possibility of losing their livelihoods if they object to driving under inadequate permits, but also face stiff financial penalties if they, like Pollock, are caught driving without a valid permit. The result is that a person who is simply trying to make a living will suffer a harsh penalty, yet the employer who forced him onto the road goes unpenalized and continues to place dangerous vehicles on our roads.
      Although 75 Pa.C.S. § 1575 imposes liability upon owners who allow others to drive their vehicles when the owner is aware of a motor vehicle violation, criminal liability is difficult to prove beyond a reasonable doubt. See Commonwealth v. J.F. Lomma, Inc., 404 Pa.Super. 185, 590 A.2d 342 (1991). Until the legislature expresses its intent to impose strict criminal liability upon the party who applies for a special hauling permit that is subsequently violated, it will remain virtually impossible to charge and prosecute corporate truck owners.

      . 75 Pa.C.S. § 6308(b) provides as follows:
      Authority of police officer. — Whenever a police officer is engaged in a systematic program of checking vehicles or drivers or has articulable and reasonable grounds to suspect a violation of this title, he may stop a vehicle upon request or signal, for the purpose of checking the vehicle’s registration, proof of financial responsibility, vehicle identification number or engine number or the driver’s license, or to secure other such information as the officer may reasonably believe necessary to enforce the provisions of this title.

      . 75 Pa.C.S. § 4981(a) provides, in pertinent part:
      Any police officer or qualified department employee is authorized to require the driver of any vehicle or combination to stop and submit the vehicle or combination to be measured and weighed----

      . We limit this holding to the facts of the case. Although measuring and weighing the vehicle were permissible under the Fourth Amendment, we do not believe that a full search of the vehicle would have been permissible in this case.

      . The trial court noted that it was accepting the PennDOT document conditionally as Exhibit 2. (N.T. 26.) Because that document is not part of the official record, we presume that the triad court did not accept the document as a final exhibit. Because this Court is limited to a review of the record, we accept the scale certification as Exhibit 2 in this case.

      . 75 Pa.C.S. § 4901(a) (Purdon 1977) prohibits the operation of a vehicle that is not equipped as required by the Vehicle Code or the regulations upon any highway of this Commonwealth.

      . At the time of the violation in Austin, the automatic invalidation provision was found at 67 Pa.Code § 51.10(8) and read as follows:
      (8) The permit shall be automatically invalidated by the violation of any condition specified therein, by violation of these regulations or by the giving of false information on the application for the permit. Any such violation or falsification will also be grounds for refusal to issue permits on future applications.

      . I am not unaware of Commonwealth v. Mercer, 294 Pa.Super. 544, 440 A.2d 599 (1982) in which a panel of this Court found that the transport of a divisible load, rather than the non-divisible load allowed by statute, rendered the permit void ab initio and, therefore, upheld the overweight penalty imposed upon the defendant. Such a holding necessarily relied on the fact that a special hauling permit could not be issued to carry a non-divisible load. See gen., 75 Pa.C.S. § 4961 (Purdon 1977 & Supp.1991). Thus, Mercer is distinguishable from the facts present in the case sub judice. Moreover, Mercer was decided before our Supreme Court’s decision in Commonwealth v. Austin, supra.

      . 67 Pa.Code § 179.16(b)(2) reads as follows:
      (2) Other permit violations. If any vehicle or combination operating under a permit to exceed weight limits is found to be operating off the approved route indicated in the permit, the amount of overweight is determined as if there were no permit.


author: BROSKY, Judge.

text:
    606 A.2d 509
    GEISINGER CLINIC, a Pennsylvania Non-Profit Corporation v. Nicholas W. DI CUCCIO, M.D., Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 12, 1991.
    Filed April 3, 1992.

      Jeffrey W. Stover, State College, for appellant.
    Diane S. Danoff, Philadelphia, for appellee.
    Robert A. Butler, pro se.

      Before OLSZEWSKI, HUDOCK and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from an Order entering a declaratory judgment in favor of Geisinger Clinic (Geisinger) and against Nicholas W. Di Cuccio, M.D., (Dr. Di Cuccio) appellant herein.

Dr. Di Cuccio raises for our consideration four issues: (1) The employment agreement is invalid because its terms are ambiguous and illusory, and, consequently, the restrictive covenant ancillary to the agreement is unenforceable; (2) The liquidated damages clause is an unconscionable forfeiture which renders it an invalid, unenforceable penalty clause; (3) The two year limitation of the restrictive covenant clause has expired because the terms thereof had begun to run at the time of the sale of the business; and (4) The trial court erred in awarding monetary damages without permitting Dr. Di Cuccio to file an answer and counterclaim to the complaint, thereby usurping Dr. Di Cuccio’s right to a jury trial on his counterclaim to allow a set off on the amount of liquidated damages. We affirm.

We adopt the factual findings of the trial court as set forth in its Opinion of October 3, 1990. See 1-7.

Dr. Di Cuccio, together with the other physician/stockholders in the Clinton Association of Physicians and Surgeons, P.C. (CAPS) and Geisinger entered into a bilateral contract for the purchase of the assets of CAPS by Geisinger, the employment contract at issue here being ancillary to and a condition of the asset purchase agreement. See Opinion, 1, 2; Findings of Fact Nos. 3-5, 8. A bilateral contract is formed when one party to the contract promises to perform or to forebear from performing in exchange for the promised performance or forbearance of the other contracting party. Greene v. Oliver Realty Co., 363 Pa.Super. 534, 526 A.2d 1192 (1987), appeal denied, 517 Pa. 607, 536 A.2d 1331 (1988).

As his first issue, Dr. Di Cuccio attacks the allegedly illusory provisions of Exhibit A of the ancillary employment agreement, relating to salary and additional compensation, in that the nature and extent of Geisinger’s obligation in this regard are uncertain and amount, in effect, to no obligation on the part of Geisinger. Our reading of Exhibit A is not in accord with the interpretation proffered by Dr. Di Cuccio. Exhibit A of the employment agreement provides for an initial annual base salary of one hundred sixty-five thousand dollars, not to be reduced during the term of the agreement, provided that (1) Dr. Di Cuccio remain financially productive at the level as existed prior to the execution of the agreement; and (2) Geisinger’s net revenues over its expenses for the fiscal year immediately preceding do not fall below eight percent of net revenues budgeted for CAPS. Moreover, additional compensation for Dr. Di Cuccio was provided for in Exhibit A in three respects:

(A) Percentage of Net Revenue. Dr. Di Cuccio is entitled to a percentage of net revenue in excess of his base salary, above, if the aggregate collected net revenues of Dr. Di Cuccio and three other physicians who were also parties to the agreement exceeds their aggregate base salary by a specific percentage to be annually reviewed and adjusted, if necessary.

(B) Medical Director’s Fund. Dr. Di Cuccio would also be entitled to an annual discretionary bonus from a fund comprised of one percent of the net revenue. This discretionary bonus was to be awarded by the Medical Director of Geisinger to recognize non-income generating contributions by physicians of CAPS.

(C) Group Bonus. Dr. Di Cuccio would also receive a bonus in the amount of up to forty percent of CAPS’ net revenues in excess of the budget if the expenses were at or below the budget and the income goals set forth in Exhibit A (relating to basic salary).

A contract is evidenced by a mutuality of obligation. A mutuality of obligation exists when both parties to the contract are required to perform their respective promises. If a mutuality of promises is absent, the contract is unenforceable. Id. A promise to perform or to forebear from performing must be supported by consideration. Id. If the promise is entirely optional with the promisor, it is said to be illusory and, therefore, lacking consideration and unenforceable. Best v. Realty Management Corp., 174 Pa.Super. 326, 101 A.2d 438 (1953); J.D. Calamari & J.M. Perillo, The Law of Contracts § 4-17 (2nd ed. 1977). The promisor has committed him/herself to nothing. J.D. Calamari, supra; E.A. Farnsworth, Contracts § 2.13 (1982).

Dr. Di Cuccio argues that the additional compensation provisions of Exhibit A are illusory because the amounts of additional compensation are unascertainable. Dr. Di Cuccio maintains that under the additional compensation provisions of Exhibit A, Geisinger was not bound to pay any compensation to him beyond the one hundred sixty-five thousand dollar annual basic salary because the terms in which these additional compensation provisions are cast are illusory, i.e., they are optional with Geisinger and lack a return promise in exchange for the promise of Dr. Di Cuccio to render medical services to patients who come to Geisinger. A contract is enforceable when the parties thereto have reached a mutual understanding, have exchanged consideration and have delineated the terms of their bargain with sufficient clarity. Greene v. Oliver Realty, Inc., supra. An agreement is sufficiently definite if the parties intended to contract with each other and if a reasonably certain basis exists upon which a court could grant an appropriate remedy. Id.

The terms of the discretionary bonus provisions, we find, are sufficiently definite to withstand a claim of illusoriness or indefiniteness. Each additional compensation provision of Exhibit A states with sufficient clarity that it is discretionary. With respect to the basic salary provision, Geisinger promises to pay an annual salary in the amount of one hundred sixty-five thousand dollars which Geisinger promises not to reduce in exchange for the CAPS physicians’ promise to maintain certain levels of financial productivity and patient accessibility, provided that net revenues for the previous fiscal year do not fall below eight percent of budgeted net revenues after June 30, 1987.

Clause A, relating to the percentage of net revenue additional compensation provides that aggregated revenues must exceed the aggregate base salaries of the CAPS physicians by a certain percentage, which percentage is subject to annual review and adjustment. At the time of the execution of the asset purchase and employment agreements, the percentage was set out in the latter as forty-four point five percent. Therefore, Geisinger does promise the CAPS physicians a percentage net revenue bonus in exchange for the physicians’ promise to provide medical care for Geisinger’s patients. Clause B provides for a one percent annual allocation by the Medical Director, at his discretion, to award a bonus for non-revenue generating contributions. Therefore, Geisinger also promises to award a bonus to group member physicians for any non-revenue generating contribution to Geisinger in exchange for the physicians’ promise to treat Geisinger’s patient. Clause C allows for a bonus to the CAPS physicians in an amount up to forty percent of its net revenues in excess of the budget if expenses are maintained at or below budget levels and if income goals are attained. Should expenses be kept at or below budget level, Geisinger promises the CAPS physicians a bonus for a certain percentage figure in exchange for the physicians’ promise to keep expenses at least at the budget level and to attain specific income goals.

In sum, each of the above provisions spells out with definiteness and clarity the responsibilities, duties and expectations of all the parties to the agreement. Geisinger is bound by its promise to pay certain salaries and bonuses once certain net revenue levels have been attained and so long as the CAPS physicians maintain a certain degree of professional responsibility to Geisinger. We see nothing illusory, indefinite or one-sided about this arrangement. Moreover, the record indicates that the employment agreement and its Exhibit A were a product of arms-length bargaining between knowing, willing and sophisticated business people. This is especially pointed up by the fact that Dr. Di Cuccio personally received the sum of five hundred twenty thousand four hundred forty-six dollars and fifty-seven cents, ($520,446.57), plus interest from Geisinger on the purchase price of CAPS. Finding of Fact No. 4. Therefore, Dr. Di Cuccio is bound by the terms of this agreement. Boyce v. Smith-Edwards-Dunlap Co., 398 Pa.Super. 345, 580 A.2d 1382 (1990). Since we are unable to conclude that the employment agreement fails for indefiniteness or was cast in illusory terms, we are similarly unable to find that the restrictive covenant provision of the employment agreement was unenforceable. We note that Geisinger’s employment of Dr. Di Cuccio would constitute consideration for the latter’s acceptance of the terms of the employment contract and, in particular, of the covenant not to compete in any event. Morgan’s Home Equipment Corp. v. Martucci, 390 Pa. 618, 136 A.2d 838 (1953). See also Records Center, Inc. v. Comprehensive Management, Inc., 363 Pa.Super. 79, 525 A.2d 433 (1987), and Barb-Lee Mobile Frame Co. v. Hoot, 416 Pa. 222, 206 A.2d 59 (1965).

We will next move to Dr. Di Cuccio’s third issue in which he maintains that the two-year limitation of the restrictive covenant began to run at the time of the execution of the asset purchase and employment agreements and has, therefore, terminated.

Under the terms of the asset purchase agreement, Dr. Di Cuccio, together with the other CAPS physicians, was required to enter into an employment agreement with Geisinger. Finding of Fact No. 8. The latter agreement was ancillary to the former and included a clause of non-competition. Both agreements were executed by Dr. Di Cuccio on May 2, 1986. On January 23, 1990, Dr. Di Cuccio informed Geisinger that he would be terminating his employment with the latter on February 28, 1990. Finding of Fact No. 13. Dr. Di Cuccio subsequently began to practice medicine within a few miles of Geisinger, taking with him three other employees. Before he left Geisinger, Dr. Di Cuccio informed his patients that he would be taking care of them at his new location. Since that time, patients whom Dr. Di Cuccio had formerly treated at Geisinger were receiving medical care from Dr. Di Cuccio at his new office. Findings of Fact Nos. 17, 18, 19.

The non-competition clause of the employment agreement between Dr. Di Cuccio and Geisinger reads as follows:

8. NONCOMPETITION
(a) It is understood and agreed that Physician shall not, following termination of employment, directly or indirectly, enter into the practice of medicine ... within the restricted area described by a radius of fifty (50) miles from such medical office facility designated as the principal site of physician’s medical office at the time of such termination. This restriction shall endure for a period of two years from the date of termination of this Agreement and regardless of the grounds, if any, therefor. It is understood that this restriction is necessitated in part because of the time, effort, and resources required by Geisinger in connection with said Asset Purchase Agreement and, otherwise, in the development and maintenance of Physician's practice and in the event that Physician’s relationship with Geisinger is terminated, the additional time and effort necessary to re-establish the practice which the Physician leaves. In the event the provisions of this section are deemed to exceed the time, geographic, or occupational limitations permitted by applicable law, then such provisions shall be automatically reformed to the maximum time, geographic, or occupational limitation permitted by applicable law.

First emphasis in text; second emphasis supplied. As noted, the restrictive covenant clause bars Dr. Di Cuccio from practicing medicine for two years from the termination of his employment with Geisinger. “Termination” is provided for in the employment agreement between Geisinger and the CAPS physicians as follows:

7. TERMINATION
(a) Either party may at any time terminate this Agreement upon thirty (30) days prior written notice to the other____
(b) Physician understands and agrees that (i) his resignation or his other voluntary termination of this Agreement ... may result in [pursuance] ... of remedies at law or in equity [which] Geisinger may assert, including the provisions of the following paragraph 8 [the non-competition clause, supra]. It is understood that, solely for the purposes of this Paragraph 7(b), the phrase ‘termination’ shall not include Physician’s death, the circumstances described in subparagraph (c) below, incurrence of a disabling illness or injury which substantially interferes with his ability to carry out his duties hereunder or the release from employment, initiated by Geisinger without cause.
(c) This Agreement is automatically terminated upon Physician’s attainment of the age of seventy years.

First emphasis in text; subsequent emphasis supplied.

On January 23, 1990, Dr. Di Cuccio notified Geisinger in writing that he would be leaving the employ of the latter on February 28, 1990. Pursuant to the terms of Paragraph Seven, above, resignation of employment terminates the employment agreement with Geisinger. This is further evidenced by the language of Paragraph Eight which indicates that its two-year restrictive provision is triggered by termination of employment which, in turn, effects cessation of the employment agreement.

Therefore, when Dr. Di Cuccio left its employ on February 28,1990, he terminated his employment agreement with Geisinger, thereby triggering the restrictive covenant provisions of Paragraph Eight thereof. In accordance with the plain terms of Paragraph Eight, then, Dr. Di Cuccio was barred from the practice of medicine within a fifty mile radius of Geisinger for a period of two years from February 28, 1990 to February 28, 1992. See Boyce v. Smith-Edwards-Dunlap Co., supra. In that case, we interpreted a non-competition clause in an employment agreement restricting involvement with a competing business for two years after Boyce’s period of employment with the employer to bar Boyce’s involvement with a competitor for a two-year period following termination of his employment with the predecessor to Smith-Edwards.

Similarly, the language of the restrictive covenant in this case is patently clear that the two-year bar takes effect only after the employment agreement has been terminated. We have already determined that the employment agreement is terminated upon cessation of employment by a CAPS physician with Geisinger. Therefore, Dr. Di Cuccio’s arguments in his Brief to this court to the contrary do not in any way undercut the plain language of the restrictive covenant clause of the employment agreement. We will not engage in a strained reading of contractual provisions which are clear on their face. See Greene v. Oliver Realty Co., Inc., supra. The meaning of the restrictive covenant, therefore, must be determined by its contents, alone, for a court cannot supply or substitute contractual terms which are inconsistent with the parties’ intent, the paramount goal of contract interpretation. Id. The record is devoid of fraud, collusion, overreaching or unequal bargaining power between the parties. In fact, Dr. Di Cuccio does not even allude to any of these improprieties. His argument is, instead, an indication of a relationship gone sour, and he now seeks to have this court rewrite the terms of the employment agreement to vindicate his discontent. This we decline to do.

In his second issue on appeal, Dr. Di Cuccio contends that the liquidated damages clause constitutes an unconscionable and unenforceable penalty clause. The targets of Dr. Di Cuccio’s attack in this regard are the waiver payment provision of the non-competition clause of the employment agreement and a clause in the asset purchase agreement providing for reduction of the purchase price in the amount of a terminating shareholder’s proportionate interest.

The clause in the asset purchase agreement providing for purchase price reduction in the proportionate amount of a terminating shareholder’s interest reads in relevant part:

1.4 Purchase Price. [Sets forth purchase price]
(a) * * *
(b) * * *
(c) The payment of the full amount of the Adjusted Balance is expressly contingent upon the continued employment of the Shareholders pursuant to their respective Professional Employment Agreements with the Geisinger Clinic. If on or before January 2, 1990, a Shareholder’s employment with Geisinger Clinic, [sic] has terminated pursuant to the provisions of paragraph 7(b) of said Professional Employment Agreement {supra], the amount then unpaid to Sellers [Geisinger] shall be reduced by the proportionate Shareholder interest held by such terminating Shareholder and set forth in Exhibit 1.4(c)....

First emphasis in text; second emphasis supplied. Dr. Di Cuccio’s argument with regard to Paragraph 1.4(c) of the asset purchase agreement is devoid of merit as the above provision has no application to the facts at bar. Dr. Di Cuccio terminated his employment with Geisinger on February 28, 1990. We have already determined Dr. Di Cuccio’s termination of employment with Geisinger was pursuant to Paragraph Seven “(b)” of the employment agreement. The plain language of clause 1.4 4(c), above, indicates that the price reduction provision applies only to terminations effected on or before January 2, 1990. Therefore, this provision does not affect Dr. Di Cuccio’s termination of employment. Moreover, the trial court entered judgment in favor of Geisinger only in the amount of Dr. Di Cuccio’s compensation for the twelve months in question, or one hundred ninety-four thousand one hundred sixty-six dollars and thirteen cents ($194,166.62). Finding of Fact No. 12. This amount represented the liquidated damages agreed to by the parties to the employment agreement in the event of a breach of the non-competition clause of the agreement by any of the CAPS physicians. Therefore, Dr. Di Cuccio's argument that he would have been required to pay approximately five hundred thousand dollars ($500,000.00) in addition to one hundred sixty-five thousand dollars ($165,000.00) (his then annual salary) had he terminated the day after signing the employment agreement is irrelevant under the facts as they actually occurred.

Dr. Di Cuccio’s argument regarding the invalidity of the waiver payment provision of the non-competition clause as a penalty or forfeiture is equally unavailing. Paragraph Eight “(b)” of the non-competition clause reads as follows:

(b) If Physician desires to establish a practice within the restricted area during the two-year period following termination, Geisinger will waive this restriction upon the payment to it of a sum (the “Waiver Payment”), the amount of which shall be the greater of either: (i) One Hundred Sixty Five Thousand ($165,000) Dollars; or (ii) the total compensation paid Physician during the 12 calendar months preceding the month in which the termination occurred. It is further agreed and understood that because the financial burdens Geisinger would endure are difficult to ascertain and quantify, the amount of the Waiver Payment is a fair amount to pay as liquidated damages, and not as a penalty, in the event Physician desires to establish a practice within the restricted area during the two-year period.

Early in the history of our court, we delineated the four criteria to differentiate a liquidated damages provision from a penalty or forfeiture term in a restrictive covenant clause of an employment agreement.

(1) ‘When, independently of the stipulation, the damages would be wholly uncertain and incapable or very difficult of being ascertained, except by mere conjecture, then the damages will usually be considered liquidated:’
(2) ‘Where a party binds himself in a sum named not to carry on any particular trade, business or profession, within certain limits or within a specified period of time, the sum named will be regarded as liquidated damages and not as a penalty:’
(3) ‘A sum fixed as security for the performance of a contract containing a number of stipulations of widely different importance, breaches of some of which are capable of accurate valuation, for any of which the stipulated sum is an excessive compensation, is a penalty.’
(4) ‘When the covenant is for the performance of a single act or several acts, or the abstaining from doing some particular act or acts, which are not measurable by any exact pecuniary standard, and it is agreed that the party covenanting shall pay a stipulated sum as damages for a violation of any of such covenants, that sum is to be deemed liquidated damages and not a penalty:’

Stover v. Spielman, 1 Pa.Super. 526, 530-31 (1896), quoting 1 Sedgwick, Measure of Damages 549 (8th ed. 1891). Stover involved an agreement to purchase a bakery/confectionery business. The court held that the sale included the good will of the business, as well. Mr. Spielman agreed not to engage in the bakery/confectionery business in the borough of Greencastle and within a five mile radius thereof, nor would he be employed as a clerk in any bakery/confectionery business within a four mile radius. The restrictive covenant provision recited that for violation thereof, Mr. Spielman agreed to pay the amount of eight hundred dollars ($800.00) to Mr. Stover as liquidated damages. Mr. Spiel-man contended that the eight hundred dollars damages amounted to a penalty. This court rejected Mr. Spielman’s argument. In doing so, it analyzed the case utilizing each of the above four criteria and concluded that each had been met to construe the eight hundred dollar damage clause as a liquidated damages provision rather than as a penalty clause.

We held, first, that the actual damages were uncertain and difficult to ascertain given that the actual amount of loss might increase with each year. We also held that the amount of damages was reasonable in light of the fact that the sale of the business included its good will and a covenant not to conduct the same type of business within a certain geographic area. Relying upon Kelso v. Reid, 145 Pa. 606, 23 A. 323 (1892), an earlier decision of our supreme court regarding restrictive employment covenánts, we concluded that criteria numbers one and two had been met to sustain the eight hundred dollar damage clause as one for liquidated damages. Secondly, we noted that the non-competition clause in the sales agreement concerning Mr. Spiel-man’s employment as a bakery/confectionery clerk at another bakery/confectionery in Greencastle or his opening of a bakery/confectionery business in that same area referred to the same employment restriction, i.e., a promise not to engage in the same type of business which Mr. Spielman had sold to Mr. Stover. On that basis, we concluded that criteria numbers three and four had been satisfied to classify the eight hundred dollar figure as a liquidated damages clause rather than one for penalty.

The principles outlining the differences between liquidated damages and penalties in Spielman v. Stover, supra, have been applied more recently to illustrate the problem regarding the unascertainability and difficulty of predicting actual damages in contract actions. In Commonwealth v. Musser Forests, Inc., 394 Pa. 205, 146 A.2d 714 (1959), our supreme court held that damages which are intended to be compensatory because of the indeterminate extent of the loss incurred are liquidated, rather than penal in nature.

Relying upon Kunkel & Jordan v. Wherry, 189 Pa. 198, 42 A. 112 (1899), this court, more recently in Holt’s Cigar Co. v. 222 Liberty Associates, 404 Pa.Super. 578, 591 A.2d 743 (1991), held that the lynchpin of a liquidated damage clause is compensation for damages sustained. The court further observed that a provision which represents a good-faith and reasonable forecast of anticipated damages for breach which are otherwise difficult to prove with certainty will be construed as one for liquidated damages rather than for punishment or to secure compliance. This court characterized liquidated damages as a measure of foreseeable business losses or as damages for loss of good will. If no measure of compensation is intended, the damages clause is a penalty to secure compliance. Id. In that case, we reiterated the factors to which we must look in deciding whether the damages are liquidated or for penalty:

The question [of whether stipulation is a penalty or a valid liquidated damages provision] ... is to be determined by the intention of the parties, drawn from the words of the whole contract, examined in the light of its subject-matter and its surroundings; and in this examination we must consider the relation which the sum stipulated bears to the extent of the injury which may be caused by the several breaches provided against, the ease or difficulty of measuring a breach in damages, and such other matters as are legally or necessarily inherent in the transaction.

404 Pa.Superior Ct. at 587, 591 A.2d at 747, quoting Commonwealth v. Musser Forests, Inc., supra, 394 Pa. at 212, 146 A.2d at 717. In Holt’s the five hundred dollar per diem damage clause for delay in construction was construed to be a penalty to force compliance with the work schedule rather than as a reasonable forecast of business loss damage due to delay and was therefore unenforceable as a matter of public policy.

Here, the waiver payment provision of the restrictive covenant clause of the employment agreement meets the above-stated criteria of the foregoing case law. Paragraph Eight “(a)” of the non-competition clause reads in part:

It is understood that this restriction [the temporal and geographic limitation of a future medical practice] is necessitated in part because of the time, effort, and resources required by Geisinger in connection with said Asset Purchase Agreement and, otherwise, in the development and maintenance of Physician’s practice [sic] and in the event that Physician’s relationship with Geisinger is terminated, the additional time and effort necessary to re-establish the practice which the Physician leaves.

Paragraph Eight “(b)” of the non-competition clause — the waiver payment provision — states:

[B]ecause the financial burdens Geisinger would endure are difficult to ascertain and quantify, the amount of the Waiver Payment is a fair amount to pay as liquidated damages, and not as a penalty, in the event Physician desires to establish a practice within the restricted area during the two-year period [as set forth in Paragraph “(a)”].

These provisions, we hold, satisfy the first, second and fourth criteria of a legally acceptable liquidated damages provision as set forth in Stover v. Spielman, supra, as these provisions convey the intent of compensation of Geisinger for unquantifiable business losses due the premature departure of Dr. Di Cuccio from its employ for the purpose of establishing a medical practice in competition with Geisinger within the prohibited temporal and geographic bounds of the non-competition clause. The above-recited provisions also fulfill the third criterion of Stover, supra, in that they refer to the same matter, i.e., termination of employment with Geisinger in order to establish a competing medical practice within the otherwise prohibited bounds of the covenant, and the amount of damages so stipulated is solely for the purpose of protecting Geisinger in this event.

Our reading of the non-competition clause leads us to conclude that the waiver payment amounts to no more than a liquidated damages provision to compensate Geisinger for anticipated business or good will losses if the event described in Paragraph Eight “(a)” occurs and that it represents a reasonable forecast of damages which would be otherwise unquantifiable as a measure of compensation to Geisinger. Musser Forests, Inc., supra; Holt’s, supra. It is not designed to secure compliance with the terms of the employment agreement or to punish Dr. Di Cuccio for terminating. Id. In fact, the employment agreement does not prohibit Dr. Di Cuccio or any other physician from terminating his or their employment relationship(s) with Geisinger, nor does it threaten Dr. Di Cuccio or any other CAPS physician with any sanction for voluntary termination.

Generally, a restrictive employment covenant may be enforced if it is ancillary to an employment agreement or a contract for the sale of a business and if it is necessary to protect the legitimate interests of the employer or the purchaser of a business. Westec Security Services, Inc. v. Westinghouse Electric Corp., 538 F.Supp. 108 (E.D.Pa.1982) (interpreting Pennsylvania law). Specifically, restrictive covenants ancillary to the sale of a business, as here, are designed to protect, in addition to physical assets and investments, the good will of the business, i.e., its name, reputation and reliability. Morgan’s Home Equipment Corp. v. Martucci, supra. For that reason, a restrictive covenant ancillary to the sale of a business promotes “goodwill [as] a saleable asset ‘by protecting the buyer in the enjoyment of that for which he pays.’ ” Westec, supra, at 121, quoting 6A Corbin, The Law of Contracts, §§ 1385, 1387, and citing Morgan’s Home, supra. It is the interference with or the destruction of the good will purchased with the physical attributes of the business which is unascertainable and unquantifiable in terms of actual loss, thereby triggering the necessity for a liquidated damages clause. See John G. Bryant Co., Inc. v. Sling Testing and Repair, Inc., 471 Pa. 1, 369 A.2d 1164 (1977), and Robert Clifton Associates, Inc. v. O’Connor, 338 Pa.Super. 246, 487 A.2d 947 (1985). Therefore, the language contained in Paragraphs Eight “(a)” and “(b)” with respect to protecting Geisinger’s interest in its investment and its inability to quantify or ascertain with specificity any losses which it would incur in the event of a breach of the non-competition clause by any CAPS physician was proper.

In light of the above, we hold that the waiver payment provision of the non-competition clause of the employment agreement between Dr. Di Cuccio and Geisinger represents a valid liquidated damages clause, rather than a penalty, designed to reasonably protect Geisinger in its purchase of both the physical assets and the good will of CAPS and that the loss suffered by Geisinger as a result of Dr. Di Cuccio’s untimely termination of his employment relationship with Geisinger and his subsequent establishment of a competing medical practice within the prohibited temporal and geographic bounds of the restrictive covenant is unascertainable and unquantifiable so as to justify the imposition of damages as bargained for by the parties, themselves.

Lastly, Dr. Di Cuccio complains that the trial court, in entering a declaratory judgment in favor of Geisinger in the amount of one hundred ninety-four thousand one hundred sixty-six dollars and sixty-two cents ($194,166.62), which is the amount of liquidated damages to which Geisinger was entitled under Paragraph Eight “(b)” of the employment agreement, did so without affording him the right to assert a counterclaim for a set-off on which he would have otherwise been entitled to a trial by jury.

The purpose of awarding declaratory relief is to finally settle and make certain the rights or legal status of parties. New London Oil Co., Inc. v. Ziegler, 336 Pa.Super. 380, 485 A.2d 1131 (1984). Section 7533 of the Declaratory Judgments Act, 42 Pa.C.S.A. §§ 7531 et seq., provides in relevant part: “Any person interested under a ... written contract ... may have determined any question of construction or validity arising under the ... contract ... and obtain a declaration of rights, status, or other legal relations thereunder.” Additionally, Section 7534 states: “A contract may be construed either before or after there has been a breach thereof.” See also New London Oil, supra. Moreover, we have held that a declaratory judgment proceeding is a proper form of action in which to determine the validity of a restrictive covenant of employment. Bahleda v. Hankison Corp., 228 Pa.Super. 153, 323 A.2d 121 (1974); Wilshire v. Penn Overall Supply Co., 227 Pa.Super. 30, 33, 323 A.2d 239, 240 (1974).

Here, the trial court first construed the waiver payment provision of the restrictive covenant as a valid liquidated damages clause rather than as a void penalty provision. The court then declared the right of Geisinger to receive this waiver payment pursuant to the terms of the restrictive covenant. Having so declared the validity of the waiver payment clause and the right of Geisinger to receipt of the waiver payment, the trial court then proceeded to enter judgment for the amount of the waiver payment, plus interest, in favor of Geisinger.

Dr. Di Cuccio now contends that he had reserved the right to counterclaim for a set-off against the judgment and that the trial court’s refusal to amend the Order entering judgment to make it subject to the establishment of any counterclaim denied him the right to a trial by jury on his counterclaim. We disagree.

For the first time in a Motion for rehearing filed subsequent to the Order of April 1, 1991, entering a declaratory judgment in favor of Geisinger, Dr. Di Cuccio raised the issue of counterclaiming for a set-off of damages. This contention was not included among Dr. Di Cuccio’s exceptions filed to the decree nisi entered on October 3, 1990, awarding a declaratory judgment in favor of Geisinger. It was also not included in Dr. Di Cuccio’s Brief filed in support of his exceptions to the decree nisi.

Aside from the possibility of this issue having been waived on appeal, it is meritless in any event. First, no indication appears of record that Dr. Di Cuccio, as he claimed at the May 31, 1991, hearing, had reserved his right at any time to file a counterclaim. Counsel for Dr. Di Cuccio stated at the hearing of May 31, 1991, that this understanding had been reached by the court and the parties at a prior court conference of an unspecified date. However, no transcription or other documentation of this court conference appears in certified record of this case.

Secondly, at the hearing on the Motion held on May 31, 1991, the court requested counsel for Dr. Di Cuccio to delineate the specific contours of the proposed counterclaim. Counsel responded that the purpose of the counterclaim would be to set off some unspecified amounts which Geisinger had purportedly deducted from the monies which were actually allegedly due Dr. Di Cuccio. Counsel also alluded to some other various undefined “calculations made throughout the life of the contract, not just the final payment, that were made purely by Geisinger within their discretion which Doctor Di Cuccio would challenge as being accurate.” N.T. May 31, 1991, 9. Other than these bald statements, counsel never imparted to the trial court, nor are we able to glean from a reading of his appellate brief, the specific calculations or withheld monies now claimed by Dr. Di Cuccio and the factual predicate therefor.

Notwithstanding, counsel then requested the court to amend its final Order entering the declaratory judgment to allow for the determination of damages subject to a counterclaimed set off, even though counsel conceded that Dr. Di Cuccio had not at the pleading stage filed any counterclaim for a set-off because he did not wish to stall the progress of the case to final determination of the validity of the employment agreement — specifically, the restrictive covenant clause — and because of an alleged prior reservation to file a counterclaim at a later date. Counsel also acknowledged that the entry of judgment for the amount of liquidated damages provided for in the employment agreement would be subject to any counterclaimed set-off only if Dr. Di Cuccio could first establish his right to the latter. As we have already seen, counsel for Dr. Di Cuccio was unable to articulate any specific factual basis for the counterclaim at the hearing before the trial court. He has similarly failed here on appeal.

Dr. Di Cuccio filed an Answer and New Matter to Geisinger’s amended Complaint in Equity in which he attacked the validity and enforceability of the employment agreement for failure of consideration on the basis of vagueness, indefiniteness and illusoriness. He also averred that the non-competition clause of the employment agreement was void as being violative of public policy. Dr. Di Cuccio did not, as part of this pleading or anywhere else in the record, file the counterclaim which he now maintains he has the right to assert. Our review of the record does not indicate that Dr. Di Cuccio was ever precluded, prior to the entry of judgment, from asserting any set-off which he now claims that he is due.

Counsel for Dr. Di Cuccio indicated at the hearing of May 31,1991, that he had not asserted a counterclaim for set-off because he did not wish to stall the declaratory judgment proceeding by having to litigate his claims. However, at the hearing, he requested the court to amend its Order to make the judgment entered therein for liquidated damages subject to any recovery as a result of a yet-to-be-filed counterclaimed set-off, the factual predicate for which, as we have seen, counsel was unable to impart to the court when requested to do so. The court recommended to Dr. Di Cuccio that he file a separate action to accomplish this purpose. Whether at law or in equity, a party may file a separate action for the claims upon which he would otherwise rest his counterclaim. See Oak Lane Shopping Center v. Flame, 264 Pa.Super. 9, 398 A.2d 721 (1979) (equity action) and American Telephone and Telegraph v. Clifford, 406 Pa.Super. 128, 593 A.2d 903 (1991) (action at law). Therefore, the court acted properly in refusing to amend the Order to allow for the possibility of a set-off, especially in light of counsel’s inability to articulate the basis therefor and because of the availability of the remedy of filing an independent cause of action to assert this same alleged claim.

Moreover, even if the court had acceded to counsel’s request to amend the Order, it does not follow that Dr. Di Cuccio would have been entitled to a jury trial on his claim for set-off. Pennsylvania Rule of Civil Procedure 1602 states: “In any action at law or in equity, a party may include in the claim for relief a prayer for declaratory relief and the practice and procedure shall follow, as nearly as may be, the rules governing that action.” Since Geisinger had included in its Complaint a count requesting declaratory relief, this rule governs here. A proceeding for declaratory relief under Rule 1602 does not afford a party an independent right to a jury trial other than what he/she/it may be entitled to on the underlying cause of action. Brenckle v. Arblaster, 320 Pa.Super. 87, 466 A.2d 1075 (1983); 42 Pa.C.S.A. § 7539(b). Therefore, a claim for declaratory relief made pursuant to Rule 1602 may be part of an action at law or one in equity and will proceed in accordance with the rules governing the applicable action. Id.; Brenckle v. Arblaster, supra.

Geisinger filed a Complaint in Equity in which it asserted, inter alia, a claim for relief requesting a declaration that Dr. Di Cuccio is in breach of the non-competition clause of the employment agreement, that the waiver payment provision of the clause is binding and valid and that as a result thereof, Geisinger is entitled to liquidated damages as set forth in that provision. Geisinger also sought, alternatively, a claim for injunctive relief. Geisinger’s amended Complaint in Equity also included separate counts for various claims sounding in tort and in contract. These counts were discontinued after the Order of April 1, 1991, entering a declaratory judgment in favor of Geisinger had been filed but before the hearing of May 31, 1991. Thus, on the date of the hearing, at which Dr. Di Cuccio first asserted his right to file a counterclaim for set-off and his right to a jury trial therefor, only two counts of the Complaint remained— one for declaratory relief and the other for the alternative remedy of injunctive relief.

Since we conclude that Geisinger's action, as nearly as may be, sounded in equity, rather than at law, any counterclaim which Dr. Di Cuccio could have asserted in any event would have been required to conform to the requirements of Pa.R.Civ.P. 1510 for the pleading of counterclaims to actions in equity. Rule 1510 states:

(a) A defendant may plead as a counterclaim only a cause of action, whether equitable or legal, which arises from the same transaction or occurrence or series of transactions or occurrences from which the plaintiffs cause of action arose____
(b) A counterclaim shall be pleaded and tried as an action in equity.

It thus appears that under Rule 1510, it matters not whether the counterclaim rests in equity or at law. If it arises out of the same transaction or occurrence from which the plaintiffs cause in equity arose, it must be litigated as an equity matter.

Geisinger requests performance on the part of Dr. Di Cuccio for the payment of liquidated damages in the amount agreed to by the parties according to the formula prescribed in Paragraph Eight “(b)” of the employment agreement. Dr. Di Cuccio indicated to the trial court at the May 31, 1991, hearing and now states to this court that his proposed counterclaim would be in the nature of a set-off to the liquidated damages which the trial court found due and owing and upon which the court entered a declaratory judgment in favor of Geisinger. We construe Geisinger’s request for relief as one for specific performance for payment of the liquidated damages due it under the terms of the employment agreement. As such, it is an equitable remedy which permits a court to compel performance of a contract when there exists in the contract an agreement between the parties as to the nature of the performance. Cimina v. Bronich, 349 Pa.Super. 399, 503 A.2d 427 (1985), reversed, granting specific performance, 517 Pa. 378, 537 A.2d 1355 (1988); Turner v. Hostetler, 359 Pa.Super. 167, 518 A.2d 833 (1986). In this case, the employment agreement set forth the nature of the performance to which the parties agreed. If Dr. Di Cuccio terminated his employment with Geisinger before the end of the two-year restriction and embarked upon a competing medical practice within the prohibited geographical bounds of the restrictive covenant, he would be required to perform on his agreement to pay liquidated damages.

This being the case, Dr. Di Cuccio was not entitled to a jury trial on any counterclaim which he could have asserted. A party who chooses to assert a counterclaim at law in an equity action, rather than to file an independent cause of action at law on the same matter waives his right to have these issues of fact determined by a jury. Rosenberg v. Rosenberg, 322 Pa.Super. 293, 469 A.2d 626 (1980). See also Brenckle v. Arblaster, supra. Cf. United States v. Wade, 653 F.Supp. 11 (E.D.Pa.1984) (in declaratory judgment proceeding declaring liability for payment of response costs under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601 et seq., underlying remedy is equitable in nature and invokes no right to a jury trial).

Order affirmed.

      . The trial court found as a fact that Dr. Di Cuccio’s salary for the prior twelve months in question to be one hundred ninety four thousand one hundred sixty-six dollars and thirteen cents ($194,-166.13), although it entered judgment in the amount of one hundred ninety-four thousand one hundred sixty-six dollars and sixty-two cents ($194,166.62). The parties cite the latter figure in their respective appellate briefs as the amount of liquidated damages. We will accept this figure also.

      . See Brenckle v. Arblaster, supra, and Pa.R.Civ.P. 1602, supra, in text.