author: OLSZEWSKI, Judge:

text:
    614 A.2d 284
    Richard D. GALLUCCI and Joanne Gallucci, Appellants, v. PHILLIPS & JACOBS, INC., Appellee.
    Superior Court of Pennsylvania.
    Argued May 13, 1992.
    Filed Sept. 8, 1992.

      Barbara A. Axelrod, Philadelphia, for appellants.
    Frederick B. Buck, Philadelphia, for appellee.
    Before WIEAND, OLSZEWSKI and KELLY, JJ.
   OLSZEWSKI, Judge:

This is an appeal from the judgment of the Philadelphia Court of Common Pleas dated April 22, 1991. Appellants brought this case in 1985 against appellee, Phillips & Jacobs, Inc. [hereinafter “P & J”], Richard Gallucci’s former employer. Appellants averred several causes of action surrounding Richard Gallucci’s dismissal from employment. Appellants’ arguments on appeal deal with causes of action in defamation and malicious prosecution.

The trial court more than adequately summarized the facts in this case.

On October 14, 1983, the plaintiff, Richard D. Gallucci discovered that his employer, Phillips & Jacobs (referred to as “P & J”) contacted the Federal Bureau of Investigation (FBI) and arranged an investigation of [him] for industrial espionage. The plaintiff served as a software technician for the Toppan Video Proofer which is specialized equipment designed to enable publishers to view final colored pictures as they would appear in print. In March, 1982, top management personnel assigned to the Toppan project was (sic) either terminated or reassigned including the plaintiff. Subsequent to discussions with management, the plaintiff was reassigned to the sales force.
Mr. Gallucci, began a job search due to the company’s lack of success with the Toppan Proofer, and established contact in 1981 with P & J’s chief competitor, Hazeltine, for employment. Gallucci received a written offer from Hazel-tine on August 26, 1983, after numerous contacts and negotiations with that company.
On October 13, 1983, Gallucci presented the offer to his immediate supervisor at P & J, Bob Kurlich, allegedly in an attempt to grant P & J an opportunity to match the Hazeltine offer. In the afternoon of the same day, the plaintiff met with officers of P & J and two attorneys. At the meeting the plaintiff was accused of industrial espionage. The interrogation by [of] Gallucci was recorded, and the plaintiff, was escorted to his office and asked to leave the company immediately.
P & J contacted the FBI and met with personnel from that office the next day. Documentation including records of telephone calls between Hazeltine and the plaintiff, and records of computer access made by the plaintiff regarding prospective customers of P & J was given to the FBI. As a result, the FBI began an investigation. A grand jury was convened and a subpoena was issued to obtain Hazeltine’s records involving the plaintiff.
Mr. Gallucci mailed a letter to the President of the United States on February 26,1984 stating that it was his belief the investigation by the FBI had been initiated against him by his former employer, P & J allegedly due to his new employment. On or about May 15, 1984, the plaintiff received a letter from the FBI stating the U.S. Attorney’s Office had declined any decision to prosecute him. As a result, the FBI terminated its investigation. On April 17, 1985, a summons was filed on behalf of the plaintiff against P & J. Pursuant to the Freedom of Information Act, the plaintiff requested and received information from the FBI files regarding his case. Upon receipt of this information, a complaint was filed.

Opinion, Gordon J., dated November 4, 1991 at 1-3.

Appellants’ complaint contained several causes of action. At issue in this appeal are the causes of action for defamation and malicious prosecution. Appellants have presented a single argument dealing with each issue. First, appellants argue that the trial court erred as a matter of law in refusing to decide whether appellants’ defamation claim was barred by the statute of limitations. Appellants argue that the trial court erred by not properly applying the statute of limitations to the defamation cause of action and in submitting the issue of timeliness to the jury. Second, appellants argue that the trial court erred in granting defendant’s motion for a compulsory non-suit on malicious prosecution. Appellants argue that the trial court erred in finding that there was not sufficient process to support the cause of action. We take up appellants’ arguments below.

Appellants’ first argument is that the trial court erred as a matter of law by refusing to decide whether appellants’ defamation claim was barred by the statute of limitations. Appellants’ argument in this regard is twofold. First, appellants argue that the trial court improperly applied the discovery rule to the defamation cause of action. Second, appellants argue that the trial court erred in submitting the question of the timeliness of appellants’ defamation claim to the jury.

The statute of limitations for defamation is one year. 42 Pa.C.S.A. Section 5523(1) (Supp.1992). Appellants instituted this cause of action on April 17, 1985. The relevant inquiry is therefore whether the statute began to run prior to April 17, 1984. If the statute began to run prior to April 17, 1984, then the one-year period expired prior to appellants’ filing suit and appellants’ cause of action in defamation is barred.

In addressing whether the trial court properly applied the discovery rule to the defamation action, we are constrained by certain well-established rules of law. “ ‘It is well established that an individual asserting a cause of action is required to use due diligence to properly inform himself or herself of the facts and circumstances upon which the claimed right of recovery is based and to institute suit within the applicable statute of limitations.’ ” Hunsicker v. Connor, 318 Pa,Super. 418, 421, 465 A.2d 24, 26 (1983) (quoting Petri v. Smith, 307 Pa.Super. 261, 268, 453 A.2d 342, 346 (1982)). “ ‘[M]ere mistake, misunderstanding or lack of knowledge do not toll the running of the statute of limitations.’ Although “we shall surely do equity whenever possible, ... we may not act in derogation of the express limitations enacted by our legislature.’ ” Hunsicker, 318 Pa.Super. at 423, 465 A.2d at 27 (citation omitted). The discovery rule is an exception to these general rules. Under the discovery rule “... the statute of limitations does not begin to run ‘until the plaintiff has discovered his injury, or, in the exercise of reasonable diligence, should have discovered his injury.’ ” Corbett v. Weisband, 380 Pa.Super. 292, 309, 551 A.2d 1059, 1068 (1988) (citation omitted). The discovery rule arises out of an “... inability of the injured, despite the exercise of due diligence, to know of the injury or its cause.” Pocono International Raceway v. Pocono Produce, 503 Pa. 80, 85, 468 A.2d 468, 471 (1983). Considering these rules of law, we are asked to determine whether in this case the trial court properly applied the discovery rule.

Appellants argue that they were prevented from filing their cause of action earlier because they did not discover the cause of action. Appellants’ argument is not that they did not know of the injury or cause thereof, rather appellants argue that they did not have access to the information necessary to prepare a proper complaint in defamation. Appellants argue that they did not have information regarding the specific content of the defamatory statements, and that without this information they could not complete a proper complaint.

This argument is without merit. The relevant inquiry is not whether a plaintiff has sufficient information to prepare a complaint, but whether plaintiff knew of the injury and the cause thereof. The evidence clearly reflects that appellants knew of the injury and cause thereof prior to April 17, 1984. N.T. February 6, 1991 at 40-44; N.T. February 7, 1991 at 115-116, 157.

Appellants cite two cases for the proposition that they could not file an action without knowledge of the specific content of the defamatory statements. Brief of appellants at 17-18 (citing Gross v. United Engineers & Construction, 224 Pa.Super. 233, 302 A.2d 370 (1973); Itri v. Lewis, 281 Pa.Super. 521, 422 A.2d 591 (1980)). We find that the cases cited by appellants do not support the proposition for which they are cited. In Gross the court set forth the correct procedure a plaintiff should follow to comply with the statute of limitations and acquire the information necessary to file a complaint.

"... a plaintiff is not excused from pleading the facts necessary to sustain his cause of action on the ground that the facts were known to defendant and not to the plaintiff. The plaintiff still has the burden of filing a complaint which supports his claim, and if he lacks any information necessary to the preparation of his complaint he may obtain discovery:” 2A Anderson Pa.Civil Practice § 1019.8 (1969 Edition), page 85. The proper procedure, therefore, for plaintiff to have followed in obtaining information necessary to the preparation of an adequate complaint was to commence his action by filing a praecipe for a writ. “The action then having been commenced, the plaintiff would be free to obtain necessary discovery within the scope and subject to the limitation of the rules.” 5 Anderson Pa.Civil Practice § 4001.18 (1966 Edition), page 33.

Gross, 224 Pa.Super. at 237, 302 A.2d at 372. Appellants here had the same procedure available to them. Further, in Itri the court stated the well-settled rule of procedure that a complaint should not be dismissed where there is a reasonable probability that amendment can be successfully completed. Itri, 281 Pa.Super. at 523, 422 A.2d at 593. Appellants had two options to avoid the running of the statute of limitations. First, appellants could have followed the preferred procedure by filing a praecipe for a writ and proceeding with discovery before preparing a complaint. Second, appellants could have prepared a complaint and later requested leave to amend.

The record in this case clearly supports a finding that appellants knew of their injury and the cause thereof prior to April 17, 1984. The one-year statute of limitations, therefore, expired prior to appellants commencing their action in defamation. The fact that appellants lacked sufficient detail to draft a perfect complaint will not toll the statute. Appellants had the duty to apprise themselves of the necessary facts and pursue legal recourse within the statute of limitations. The procedural rules in this Commonwealth allow a party the means to comply with the statute of limitations while acquiring additional information for a complaint. Appellants failed to avail themselves of these procedures. We cannot now relieve appellants of the period of limitations enacted by the legislature. The trial court properly applied the discovery rule. Appellants’ argument is without merit.

Appellants have also argued that the trial court erred by submitting to the jury the issue of whether appellants knew of the claim prior to April 17,1984. The trial court submitted the following instruction to the jury:

You must determine, therefore, whether Mr. Gallucci knew or, with the exercise of diligence, should have known before April 18, 1985, that the defendant had provided information to the Federal Bureau of Investigation regarding him.

N.T. February 12, 1990, at 22. Appellants argue that the trial court, not the jury, should have decided this issue. The trial court found that the issue of when appellants knew of the libelous statements was a question of fact for the jury. Generally, “[t]he question of whether a statute of limitations has run on a claim is usually a question of law for the trial judge, but, at times, a factual determination by the jury may be required.” Borough of Aliquippa v. Md. Casualty Co., 402 Pa.Super. 569, 575, 587 A.2d 765, 768 (1991) (citation omitted). “The point of time at which the injured party should reasonably be aware that he or she has suffered an injury is generally an issue of fact to be determined by the jury.” Sadtler v. Jackson Cross Co., 402 Pa.Super. 492, 501, 587 A.2d 727, 732 (1991). We find that the trial court properly submitted the above interrogatory to the jury. The issue before the trial court was the factual question of when appellants knew or should have known of their injury. This was a proper question for the jury. Appellants’ argument is without merit.

Appellants’ second argument is whether the trial court erred in granting P & J’s motion for a nonsuit on the malicious prosecution cause of action. The trial court granted the nonsuit based upon a finding that there was insufficient process to support a cause of action in malicious prosecution. Appellants argue that the grand jury’s issuance of a subpoena for employment records was sufficient process to support a cause of action in malicious prosecution.

The standard of review on appeal of a denial of a motion to remove a nonsuit is well settled. The plaintiff must be allowed the benefit of all favorable evidence and reasonable inferences arising therefrom, and any conflicts in the evidence must be resolved in favor of plaintiff. Coatesville Contractors v. Borough of Ridley, 509 Pa. 553, 558, 506 A.2d 862, 865 (1986). Further, “[i]t has been long settled that a compulsory nonsuit can only be granted in cases where it is clear that a cause of action has not been established.” Id. “However where it is clear a cause of action has not been established, a compulsory nonsuit is proper.” Toth v. Economy Office Forms Corp., 391 Pa.Super. 383, 386, 571 A.2d 420, 422 (1990). “We must, therefore, review the evidence to determine whether the order entering judgment of compulsory nonsuit was proper.” Coatesville, 509 Pa. at 559-60, 506 A.2d at 865.

In this case we can narrow our inquiry even further. The trial court granted the nonsuit on a finding that appellant failed to establish sufficient process to support a cause of action for malicious prosecution. The question before us is whether, examining the evidence in a light most favorable to appellant as the party opposing the nonsuit and allowing all reasonable inferences therefrom, there was sufficient process to support a cause of action in malicious prosecution.

Initially we examine the requirements of a cause of action in malicious prosecution.

A private person who initiates or procures the institution of criminal proceedings against another who is not guilty of the offense charged is subject to liability for malicious prosecution if
(a) he initiates or procures the proceedings without probable cause and primarily for a purpose other than that of bringing an offender to justice, and
(b) the proceedings have terminated in favor of the accused.

Shelton v. Evans, 292 Pa.Super. 228, 232, 437 A.2d 18, 20 (1981) (citing Restatement (Second) of Torts Section 653).

Malicious prosecution in Pennsylvania has developed to a large extent based upon the Restatement of Torts (Second) Sections 653 and 654. See Shelton. We have reviewed the caselaw in Pennsylvania in an attempt to determine what constitutes sufficient process upon which to base a cause of action in malicious prosecution. Our review revealed no cases directly answering this question. In this situation, we believe it is appropriate to look to the Restatement to determine what is sufficient to constitute the initiation of criminal proceedings.

The Restatement (Second) of Torts defines the institution of criminal proceedings in Section 654.

(1) The term “criminal proceedings” includes any proceeding in which a government seeks to prosecute a person for an offense and to impose upon him a penalty of a criminal character.
(2) Criminal proceedings are instituted when
(a) process is issued for the purpose of bringing the person accused of a criminal offense before an official or tribunal whose function is to determine whether he is guilty of the offense charged, or whether he shall be held for later determination of his guilt or innocence; or
(b) without the issuance of process an indictment is returned or an information filed against him; or
(c) he is unlawfully arrested on a criminal charge.

Restatement (Second) of Torts Section 654.

Applying this definition, we find that there was not sufficient process to support a cause of action in malicious prosecution. First, Richard Gallucci was not arrested. Second, no indictment was returned or information filed against Richard Gallucci. Third, no process was issued to bring Richard Gallucci before a body to determine his guilt or to determine whether to hold him for later determination of his guilt. The only process issued in this case was a records subpoena issued by the grand jury. The testimony at trial established without contradiction that the subpoena was issued as a part of the investigation. N.T. February 6, 1990, at 57-58, 74-76. A grand jury is often a body which determines whether to hold a person for later determination of guilt by deciding whether to issue an indictment. In this case, however, this was not the grand jury’s function. The grand jury here merely issued a subpoena for records as a part of the investigation. There was no request of the grand jury to decide whether or not to issue an indictment. If the grand jury had been asked to issue an indictment, then there would have been sufficient process because regardless of whether the indictment was returned against Richard Gallucci the grand jury would have been determining whether to hold him for a later determination of guilt. That is not what occurred in this case.

If we were to find that an investigatory subpoena constituted sufficient process to support a cause of action for malicious prosecution, then each time law enforcement officials began an investigation a cause of action would lie. It would be impossible to determine at what point in the investigation there existed sufficient process. This would lead to an illogical and unworkable result.

The Restatement definition is logical and workable. Criminal proceedings under the Restatement are proceedings in which the government seeks to prosecute and impose a criminal penalty. Restatement (Second) Section 654(1). The Restatement then sets forth a logical framework of steps to determine when criminal proceedings have been instituted. Since appellants have failed to show sufficient process to support a cause of action in malicious prosecution, we find that the nonsuit was appropriate.

Finding no merit to appellants’ arguments, we affirm.

Judgment affirmed.

      . We note here that appellants to some extent argue that they were unable to acquire the information necessary to compile a complaint because the FBI file was not available. Appellants argue in this regard that under the Freedom of Information Act the FBI file was not available because it was the subject of a current investigation. We find appellants' argument in this regard to be without merit. The file, although a very valuable source of information, was not the only source for information regarding P & J’s conduct. P & J clearly had information regarding what information was provided. Further, the file would eventually become available upon the close of the investigation.


source: Caselaw Access Project

author: CIRILLO, Judge.

license: Public Domain

text:
    614 A.2d 291
    COMMONWEALTH of Pennsylvania v. Carl DAVIS, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 20, 1992.
    Filed Sept. 11, 1992.

      John W. Packel, Asst. Public Defender, Philadelphia, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before McEWEN, CIRILLO and MONTGOMERY, JJ.
   CIRILLO, Judge.

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Philadelphia County. We affirm.

On February 2, 1990, defendant/appellant Carl Davis (Davis) was arrested and charged with possession of a controlled substance and possession with intent to deliver a controlled substance (cocaine). 35 Pa.S.A. § 780-113. The trial court heard and denied Davis’s pre-trial motion to suppress the evidence seized at the time of arrest. After a bench trial, before the Honorable Jane Cutler Greenspan, Davis was convicted of both offenses. After his post-trial motions were denied, Davis was sentenced to one to two years of imprisonment to be followed by five years of probation. This timely appeal followed.

On February 2,1990, Police Officer Anthony Jones, while on patrol, received a radio call which stated “6054 Irving Street, person with a gun.” With the siren on and lights flashing on the marked patrol car, Jones and his partner, Officer Verdell Johnson, were in front of the specified address within thirty seconds. Officer Jones exited the vehicle, approached the house, and walked up the steps to the front porch. The front door was completely open so the officer had an unobstructed view of the living room inside. At the suppression hearing, Officer Jones testified:

I arrived at that location and the door was open. I observed a black male, who was the defendant, sitting in a chair who jumped up and looked in my direction, and I noticed that the butt of a gun was sticking out of his waistband. I drew my revolver out and approached the male and, for my own protection, I recovered the weapon. And in the immediate area I observed a brown, paperbag, which the male was trying to stuff under the couch.

Officer Jones entered the dwelling, frisked Davis, removed the gun, and placed Davis under arrest. Officer Jones then picked up the brown paper bag, looked inside, and found 151 clear plastic vials which were later determined to contain a total of 7.13 grams of cocaine.

Davis now raises the following issue for our consideration: Was it not error for the motion judge to rule admissible physical evidence seized by police after an arrest made in a home, where the police entered that home without a warrant without having observed any unlawful conduct or contraband: they saw appellant in that home in apparently lawful possession of a gun?

In an appeal from a denial of a motion to suppress evidence, we must determine whether the record supports the trial court’s factual findings, and whether the inferences and legal conclusions drawn by the trial court from those findings are legitimate. Commonwealth v. Lawrence, 311 Pa.Super. 326, 328, 457 A.2d 909, 910 (1983). In making this determination, we may only consider the evidence of the Commonwealth witnesses and so much of the evidence of the defense witnesses, as fairly read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Frank, 407 Pa.Super. 500, 502, 595 A.2d 1258, 1259, 1259 (1991). If the evidence supports the factual findings of the trial court, we are bound by such findings and may reverse only if there is an error in the legal conclusions drawn from the factual findings. Id.

Davis contends that the warrantless arrest was unconstitutional due to the lack of probable cause or exigent circumstances. We do not agree. Whether the police have probable cause to make an arrest depends on whether, at the time of arrest, “there are facts and circumstances within the knowledge of the arresting officer that are reasonably trustworthy and sufficient to warrant a person of reasonable caution [to] believ[e] that the arrestee has committed the offense.” Commonwealth v. Chase, 394 Pa.Super. 168, 171-172, 575 A.2d 574, 575 (1990). In determining whether probable cause existed, the totality of the circumstances must be considered. Id. As the panel in Chase explained:

When we examine a particular situation to determine if probable cause exists, we consider all the factors and their total effect, and do not concentrate on each individual element____ Finally, we must remember that in dealing with questions of probable cause, we are not dealing in certainties. We are dealing with the factual and practical considerations of everyday life on which reasonable and prudent men act. This is not the same “beyond a reasonable doubt” standard which we apply in determining guilt or innocence.

Chase, 394 Pa.Super. at 172, 575 A.2d at 575 (citations omitted) (emphasis on original).

While an informant’s tip alone may not constitute probable cause, it is well-established that independent observation of a suspect’s conduct may be sufficient corroboration to yield probable cause. See Commonwealth v. Jones, 506 Pa. 262, 484 A.2d 1383 (1984); see also Commonwealth v. Miley, 314 Pa.Super. 88, 460 A.2d 778 (1983) (probable cause for issuance of search warrant existed where informant’s tip was corroborated by police officer’s independent observation of defendant who matched description given by informant); Commonwealth v. Robinson, 410 Pa.Super. 614, 600 A.2d 957 (1991) (following informant’s tip police officer’s observation of suspect with gun stuck in waistband was sufficient to justify Terry stop).

Here, immediately following a radio dispatch, a police officer arrived at the stated address to find an open door through which he observed the defendant with a gun inserted in his waistband. Dealing with the factual and practical considerations of everyday life, Chase, supra, it was not unreasonable for Officer Jones to conclude that the informant had seen Davis outside with the weapon, in violation of section 1606(a) of the Crimes Code, and to arrest Davis on that basis. Once Davis had been placed under arrest, it was permissible for Officer Jones to search Davis and the immediate area within Davis’s reach. Commonwealth v. Tann, 500 Pa. 593, 459 A.2d 322 (1983); Commonwealth v. York, 381 Pa.Super. 55, 552 A.2d 1092 (1989).

It is true, as Davis asserts, that the Commonwealth has the burden of proving probable cause by a preponderance of the evidence. Commonwealth v. Williams, 298 Pa.Super. 466, 444 A.2d 1278 (1982). However, the test is not whether the officer was right in his belief that the man had been carrying the gun unlawfully in public. Rather, the test is whether the officer had probable cause to believe Davis had been carrying the gun in public. Chase, supra. We conclude that Officer Jones’s own observation of Davis with a gun on his person at the precise address and within thirty seconds of the dispatch warning of a man with a gun constituted sufficient probable cause for Jones to believe Davis had been carrying the gun in public without a license. Jones, supra; Miley, supra; Robinson, supra. We find the Commonwealth has met its burden. Williams, supra.

Moreover, the trial court properly recognized the exigencies of the situation. As this court stated,

Although as a general rule a search and seizure conducted without a warrant is deemed unreasonable for constitutional purposes, the warrant requirement is excused where exigent circumstances exist. Commonwealth v. Holzer, 480 Pa. 93, 389 A.2d 101 (1978). Such circumstances arise where the need for prompt police action is imperative, either because evidence sought to be preserved is likely to be destroyed or secreted from investigation, id. at 102, 389 A.2d at 106, or because there exists a threat of physical harm to police officers or other innocent individuals. Commonwealth v. Hinkson, 315 Pa.Super. 23, 27, 461 A.2d 616, 618 (1983).

Commonwealth v. Ehrsam, 355 Pa.Super. 40, 51, 512 A.2d 1199, 1204-1205 (1986).

Judge Greenspan noted during the trial that a man with a gun presents a grave threat to personal and public safety. Here, the police had been summoned by a report of a man with a gun. The report was accurate; the butt of Davis’s gun was in full view within ten feet of Officer Jones. Davis jumped from his seat and tried to conceal the paper bag when he noticed Officer Jones in his open doorway. Under the totality of these circumstances, it is clear that Davis presented a threat of physical harm to Officer Jones or other innocent individuals. Ehrsam, supra. Thus, the trial court was correct to conclude that for his own safety and that of the public, Officer Jones was justified in entering through the open door without a warrant to disarm and arrest Davis. See Commonwealth v. Miller, 327 Pa.Super. 154, 475 A.2d 145 (1984) (although defendant’s conduct amounted to only a summary offense, a warrantless arrest was lawful under circumstances constituting risk of bodily injury to police and breach of the public safety); Commonwealth v. Alford, 321 Pa.Super. 257, 467 A.2d 1351 (1983) (warrantless arrest was lawful where the summary offense of disorderly conduct involved both a breach of the peace and a danger to personal safety).

We conclude Davis’s warrantless arrest was lawful under the exigent circumstances which involved a threat of physical harm to the police officer or other innocent individuals. Hinkson, 315 Pa.Super. at 27, 461 A.2d at 618. The trial court reasonably determined that the brown paper bag was searched incident to a lawful arrest, thereby rendering its contents admissible at trial. See Commonwealth v. Canning, 402 Pa.Super. 438, 587 A.2d 330 (1991) (because defendant appeared drunk the arrest for public drunkenness and search incident thereto was proper even though defendant was not ultimately charged with original offense); see also Commonwealth v. Williams, 390 Pa.Super. 493, 568 A.2d 1281 (1990) (search incident to lawful arrest for disorderly conduct which resulted in seizure of eleven packets of cocaine was proper; analyzes warrantless post-arrest searches extensively).

Considering, as we must, only the evidence presented by the Commonwealth and the uncontradicted evidence presented by Davis in the context of the record as a whole, we find that the trial court’s factual findings, and the legal conclusions drawn therefrom, are supported by the record. Frank, supra; Lawrence, supra. We, therefore, affirm the judgment of sentence.

Judgment of sentence affirmed.

      . Officer Johnson’s actions are not discussed in detail in the record. The record merely indicates that Officer Johnson was present at the scene.

      . The record reveals that another male, who Jones initially did not see through the open doorway, was present in the living room with Davis. When Officer Jones entered and approached Davis, this man attempted to exit out the back door. However, as the back door was locked, the man was unable to leave and was taken into custody. The record reveals nothing further about the unidentified man.
      The record also refers to a woman who apparently had been upstairs in the single family dwelling. The woman came downstairs approximately five to ten minutes after Officer Jones entered the living room. The woman’s identity is not disclosed in the record.

      . As the trial court stated in its opinion, "defendant’s argument that one cannot arrest a person with a gun in a house misses the crucial facts that the officer reasonably concluded that defendant had been seen with a gun outside the house since the door was wide open and someone had complained....”

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).


author: WIEAND, Judge:

text:
    614 A.2d 295
    HEFFERNAN & COMPANY, Appellee, v. HARTFORD INSURANCE COMPANY OF AMERICA and Hartford Accident and Indemnity Company, Appellants, v. PYE, KARR, AMBLER & COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued May 14, 1992.
    Filed Sept. 28, 1992.

      Thomas L. Delevie, Philadelphia, for appellants.
    Jonathan K. Hollín, Bang of Prussia, for appellee.
    Before WIEAND, OLSZEWSKI and KELLY, JJ.
   WIEAND, Judge:

In this declaratory judgment action, the trial court entered a summary judgment directing that Hartford Insurance Company (Hartford) provide a defense to its insured, Heffernan & Company, in an action filed against the insured by a third party for damages resulting from the collapse of the roof of a building which had been constructed by Heffernan & Company. Hartford appealed. It contends that the policy excludes coverage for damages to work performed by the insured.

In a 1983 action against Heffernan & Company, averments of the complaint asserted that a collapse of a gymnasium roof had been caused, inter alia, by Heffernan’s negligent construction of the building. “As a result of the collapse of the roof,” it was alleged, “plaintiffs have sustained damages in the approximate sum of $132,000, representing the fair and reasonable value of the repairs required to restore the building at the project to a condition suitable for its intended use.” Hartford refused to defend the action. It relied upon exclusions in the policy issued to Heffernan which stated that coverage does not apply

(n) to property damage to the named insured’s products arising out of such products and any parts of such products;
(o) to property damage to work performed by or on behalf of the named insured arising out of the work or any portion thereof, or out of materials, parts or equipment furnished in connection therewith.

Heffernan then filed an action for declaratory judgment. It relied upon answers to interrogatories filed in the underlying action in which the plaintiffs had recited damages to the contents of the building in excess of $24,954.00. It contended that inasmuch as damages to the contents were not excluded from the coverage provided by the policy, Hartford had a duty to defend the action on behalf of its insured. The trial court agreed and entered summary judgment in favor of Heffernan and against Hartford. On appeal, Hartford argues that its duty to defend must be determined from the averments of the complaint and cannot be enlarged by answers to interrogatories subsequently filed in the underlying action. Because the complaint in the underlying action has not been amended to include damages to the building contents and because there is no coverage for the cost of repairing or replacing the insured’s defective work, Hartford argues, there is no basis for finding coverage in the underlying action.

The general principles of law to be applied in determining an insurer’s duty to defend in cases of this type were reviewed by the Superior Court in State Auto Ins. Ass’n v. Kuhfahl, 364 Pa.Super. 230, 527 A.2d 1039 (1987), as follows:

In analyzing whether the insurer has a duty to defend, we must first look to the complaint filed against the insureds. D’Auria v. Zurich Ins. Co., 352 Pa.Superior Ct. 231, 507 A.2d 857 (1986), and determine whether the insurer is required to defend. Vale Chemical Company v. Hartford Accident and Indemnity, 340 Pa.Superior Ct. 510, 490 A.2d 896 (1985), reversed on other grounds, 512 Pa. 290, 516 A.2d 684 (1986).
After discerning the facts alleged in the complaint, we must then decide whether, if those facts were found to be true, the policy would provide coverage. If it would, then there is a duty to defend. Id.
In Cadwallader v. New Amsterdam Casualty Company, 396 Pa. 582, 152 A.2d 484 (1959), our Supreme Court referred to this principle as explained by Judge Learned Hand in Lee v. Aetna Casualty and Surety Company, 178 F.2d 750 (2d Cir.1919). In Lee, an insured brought suit on a policy of liability insurance in two counts, seeking both relief from a judgment against the insured and costs in defense of the suit. Our Supreme Court in Cadwallader stated that the Lee Court found
that the insurer was not obligated to pay the amount of the judgment recovered against the insured as the recovery was not one within the coverage of the policy. However, the Court went on to grant the insured his costs of defending that suit. The insurance policy in that case, as in this one, required the insurance company to defend only those claims covered by the policy. The court said, that so long as the complaint filed by the injured party covered an injury which “might or might not” fall within the coverage of the policy the insurance company was obliged to defend. In the course of the opinion they said “... the injured party might conceivably recover on a claim, which, as he had alleged it, was outside the policy; but which, as it turned out, the insurer was bound to pay. Such is the plasticity of modern pleading that no one can be positive that that could not happen. In such a case of course the insurer would not have to defend; yet, even then, as soon as, during the course of the trial, the changed character of the claim appeared, we need not say that the insured might not insist that the insurer take over the defense. When, however, as here, the complaint comprehends an injury which may be within the policy, we hold that the promise to defend includes it.
“It follows that, if the plaintiffs complaint against the insured alleged facts which would have supported a recovery covered by the policy, it was the duty of the defendant to undertake the defense, until it could confine the claim to a recovery that the policy did not cover ... ”. (Emphasis supplied).
Cadwallader, supra 396 Pa. at 589-90, 152 A.2d at 488. The Court in Cadwallader affirmed the judgment of the trial court which granted plaintiff the costs of defending an underlying malpractice suit against his insurance company which refused to defend him in a suit premised both on negligence and fraud. The former was covered in his policy, while the latter was excluded. The Court found the complaint to be sufficient to trigger a defense by the insurance company. Thus, the obligation to defend arises whenever the complaint filed by the injured party may potentially come within the coverage of the policy. Gedeon v. State Farm Automobile Insurance Company, 410 Pa. 55, 58, 188 A.2d 320, 321 (1963) in Seaboard Industries, Inc. v. Monaco, 258 Pa.Superior Ct. 170, 392 A.2d 738 (1978).

Id., 364 Pa.Superior Ct. at 234-236, 527 A.2d at 1040-1041. Thus, the insurer has an obligation to defend its insured, even if the action against the insured is groundless, whenever the complaint filed by the injured party may potentially come within the coverage of the policy. Gedeon v. State Farm Mutual Automobile Ins. Co., 410 Pa. 55, 58, 188 A.2d 320, 321-322 (1963). The duty to defend may exist even though ultimately there may be no duty to indemnify. Id., 410 Pa. at 58-59, 188 A.2d at 322.

The averments of the complaint support Hartford’s contention that the complaint sought to recover only the cost of repairs to the building. It was only the cost of restoring the “building” for which recovery was sought. When answers to interrogatories were filed, however, the potential for an additional loss became apparent. Then, for the first time, a reference was made to damages which had allegedly occurred to contents of the building. When this potential became apparent, we conclude, Hartford incurred a duty to defend.

Hartford observes that the complaint in the underlying action has not been amended to include a specific claim for damage to the contents of the building and argues that until the complaint has been amended there can be no recovery therefor. As a general rule, however, a complaint can be amended to state an additional item of damage at any time prior to trial or even before final judgment. See, e.g., Ecksel v. Orleans Construction Co., 360 Pa.Super. 119, 519 A.2d 1021 (1987). Both Heffernan and Hartford are now on notice that a claim for damage to the contents of the building will probably be made in the underlying action. If that occurs, coverage will become clear. In the meantime, we conclude, the insurer has an obligation to enter an appearance on behalf of its insured in the underlying action and defend the action. This duty will continue unless and until the claim asserted against the insured can be confined to a recovery which the policy does not cover. Therefore, the trial court correctly entered judgment declaring that Hartford has an obligation to defend Heffernan in the underlying action.

It was premature, however, for the court to order the insurer to provide “indemnification for any resulting property damage claims [in the underlying action], including but not limited to those already disclosed in the [underlying] plaintiffs’ answers to interrogatories.” The insurer’s duty to indemnify its insured can better be determined after the nature of the damages, if any, has been determined in the underlying action. The present posture of the underlying action does not permit a summary determination of the insurer’s duty of indemnification. Indeed, the complaint in the underlying action has not yet been amended to make a formal claim for any loss for which Hartford has agreed to indemnify its insured.

We believe it was also improper for the trial court to make a general award of counsel fees. Even the trial judge, in her opinion, concedes that Hartford properly interpreted the complaint in the underlying action, prior to the filing of answers to interrogatories, as making a claim only for defective work for which there was no coverage and that counsel fees, therefore, should not be assessed for Hartford’s failure to undertake an immediate defense. The trial court has not fixed the amount of counsel fees. Indeed, the amount thereof cannot be determined summarily. If they are to be awarded, they can only be awarded from the time when the duty to defend arose. Counsel fees can be awarded only for services rendered to the insured in an amount calculated to reimburse the insured for legal services which the insurer should have provided on the insured’s behalf.

The trial court’s adjudication is modified by removing therefrom the general directions to Hartford to make indemnification and pay counsel fees. As so modified, the trial court’s summary judgment directing Hartford to provide a defense to its insured is affirmed.

      . The contents for which a claim was made in the answers to interrogatories were listed as follows:
      TOTALS
      2 Copiers 1,395.00 2,790.00
      1 Wooden Desk 835.00 835.00
      7 Metal Desks 624.00 4,368.00
      15 File Cabinets 226.00 3,390.00

        1 File Box Cabinet 1,320.00 1.320.00
      1 Drafting Table 402.00 402.00
      2 Storage Cabinets 211.50 423.00
      1 Water Cooler (hoi/cold) 510.00 510.00
      1 Small Refrigerator 219.36 219.36
      3 Phones 59.95 179.85
      8 Calculators 99.95 799.60
      8 Staplers 21.95 175.60
      1 Electric Typewriter (Repaired) 200.00
      1 Electric Typewriter w/Memory (Repaired) 200.00
      7 Office Chairs 199.00 1.393.00
      1 Executive Chair 514.00 514.00
      OFFICE EQUIPMENT TOTAL $17,719.41
      Additionally, the following law books stored in the Building were ruined. Replacement cost is based upon prices from used book dealers for used books rather than prices for new books:
      Atlantic Reporter, 2d series $3,995.00 to $4,200.00
      Purdon’s Pa. Statutes $1,095.00 to $1,250.00
      United States Code Annotated $ 595.00 to $ 850.00
      Pennsylvania Legal Encyclopedia $ 950.00 to $1,195.00
      Dunlap-Hannah, Pennsylvania Forms $ 150.00 to $ 450.00
      Remmick's Orphan’s Court Practice $ 325.00
      Hunter, Orphan’s Court Practice $ 125.00

      . The declaratory judgment entered by the trial court was as follows:
      AND NOW, this 30th day of July, 1991, upon consideration of the Motion for Summary Judgment of Defendant, Hartford Insurance Company of America and Hartford Accident and Indemnity Company, Plaintiff’s Answer thereto, Plaintiff’s Motion for Partial Summary Judgment, Defendants' Answer thereto, memorandum of law in support thereof and following oral argument, it is ORDERED and DECREED that Defendant's Motion is DENIED. Plaintiff's Motion is GRANTED.
      It is further ORDERED and DECREED that defendants, The Hartford Insurance Company of America and Hartford Accident and Indemnity Co. shall provide a defense for plaintiff, Heffernan and Company in the Moran, et al v. Marathon Mettalic Building Company and Heffernan & Company (Montgomery County CCP No. 83-15842) litigation, as well as an indemnification for any resulting property damage claims in same, including but not limited to those already disclosed in the Moran plaintiffs’ Answers to Interrogatories.
      Additionally, defendants shall- reimburse plaintiff for all reasonable attorneys’ fees incurred to the date of this Order by plaintiff in defending itself in the Moran litigation.


author: CIRILLO, Judge:

text:
    614 A.2d 299
    Janice M. BARRETT v. Joseph J. BARRETT, Appellant.
    Superior Court of Pennsylvania.
    Argued July 16, 1992.
    Filed Sept. 28, 1992.

      Ben Josielevski, Scranton, for appellant.
    Brian J. Cali, Dunmore, for appellee.
    Before CIRILLO, TAMILIA and POPOVICH, JJ.
   CIRILLO, Judge:

This is an appeal from an order of the Court of Common Pleas of Lackawanna County. We reverse.

Janice M. Barrett (wife) and Joseph J. Barrett (husband) were married in Lackawanna County on August 4, 1973. Husband left the marital home in June of 1977 and the Barretts were divorced in September of 1977. In October of 1977, husband returned to the marital home where the parties cohabitated again, as common law husband and wife, until March of 1987 when husband permanently separated from wife. The marriage produced two children who are now seventeen and eleven years old. Both children presently live with wife, and husband has had no contact with the children aside from making monthly support payments.

Wife filed this action for divorce on April 16, 1987, on the grounds that the marriage was irretrievably broken and alternatively on the grounds of indignities. A master was appointed to determine whether a divorce should be granted and to resolve any additional matters relating to equitable distribution, alimony, child support, and other incidents due to the divorce. The master did not recommend the divorce on the grounds of irretrievability, but recommended it based on indignities.

The master recommended a full scheme for distribution of the marital property and payments of alimony, costs and liabilities of the marital estate. The master awarded the house and its contents to wife, as she had physical custody of the children. Wife assumed the mortgage liabilities against the house. Wife received: the value of one of the family cars, one-half of the marital savings account, one-half of the checking account, and one-half of husband’s pension plan. Husband received: the two family cars, one-half of the checking and savings accounts, one-half of the pension, certain Bell Telephone stock and an individual retirement account to which the master failed to attach a value. The master further recommended splitting marital liabilities equally, and that husband should repay a tax refund which was due wife. The master made recommendations related to child support and custody, which are now uncontested. Alimony was recommended in the amount of $400.00 per month for 120 months. Finally, the master recommended that husband pay one-half of wife’s counsel fees and master’s fee.

Husband filed exceptions to the master’s recommendations which the trial court denied. The trial court entered a final order adopting the master’s recommendations and this appeal followed. On appeal, husband raises the following issues:

1) Whether realty, purchased as entireties property during a first, ceremonial marriage, converted into a tenancy in common by the dissolution of that marriage, is reconverted in whole into entireties property by the mere fact of a subsequent common law marriage?
2) Whether a plaintiffs failure to file an original or updated inventory prior to hearing justifies sanctions against plaintiff upon motion of defendant?
3) Whether an award of alimony in the amount of four hundred dollars per month for a period of ten years was excessive under the circumstances?
4) Whether conduct occurring after final separation and the filing of an action in divorce may be considered “marital misconduct” for purposes of awarding alimony?
5) Whether employee stock ownership plans and 401(k) plans, accrued by appellant after final separation and the filing of a divorce complaint, constitute “marital property” subject to equitable distribution?
6) Whether, for equitable distribution purposes, an automobile should be valued as of the time of separation rather than at the time of hearing, some three years after separation?
7) Whether attorney’s fees and costs may be awarded a plaintiff in a divorce for matters collateral or unrelated to the divorce action?
8) Whether it was unreasonable under the circumstances to charge the full master’s fee and transcription, totaling some four thousand ($4,000.00) dollars?
9) Whether a court may “equitably distribute” certain marital debts previously discharged in bankruptcy or incurred after separation, where such order is clearly unrelated to support?

Husband first argues that only the increase in value of the house after the initial divorce was marital property. He contends the trial court erred in adopting the master’s recommendation which determined that the entire house was marital property despite husband’s assertions to the contrary. The master based his decision on the conclusion that the common law “remarriage” of the parties reinstated the tenancy by the entireties ownership. We find this conclusion to be in error.

The Barretts’ initial divorce terminated the entire-ties estate and created a tenancy in common. 23 Pa.C.S. § 3507. In order to resurrect the entireties estate, the Barretts would have had to make a new deed indicating the creation of a tenancy by the entireties. No such deed was created. “Two people who are not married to one another cannot hold title to land as tenants by the entireties; marriage, in addition to the unities of time, title, interest and possession, is an essential ingredient of such an estate.” Riccelli v. Forcinito, 407 Pa.Super. 629, 634, 595 A.2d 1322, 1325 (1991), citing Masgai v. Masgai, 460 Pa. 453, 456, 333 A2d 861, 863 (1975). Thus, the dissolution of the first marriage by divorce terminated the tenancy by the entireties. That form of ownership could only reoccur upon the drawing of a new deed. Since the marital estate has been one of tenancy in common since the first divorce in 1977, it may only include the increase in value attributable to the property after the commencement of the common law marriage. We, therefore, reverse the order and remand for a redetermination of husband’s and wife’s equitable distribution rights in accordance with this decision since, after its revaluation, the marital estate will substantially decrease.

Although the resolution of the first issue requires this case to be sent back to the trial court for revaluation of the marital estate, we are nevertheless concerned with the manner in which the court rendered its decision regarding the award of alimony. Husband alleges that the trial court’s grant of alimony in the amount of four hundred dollars per month for a period of ten years is not supported by any findings of fact or testimony produced at trial. We agree. When reviewing an award of alimony this court “will reverse an order granting or denying alimony only for abuse of discretion by the trial court, and abuse of discretion will be found where trial court fails to follow proper legal procedure or misapplies law.” Uhler v. Uhler, 406 Pa.Super. 414, 594 A.2d 688 (1991).

When determining the nature, amount, duration and manner of payment for an award of alimony the trial court must consider the seventeen factors set forth in 23 Pa.C.S.A. § 3701. The general rule stipulates that “where a divorce decree has been entered, the court may allow alimony, as it deems reasonable, to either party only if it finds that alimony is necessary.” 23 Pa.C.S.A. § 3701. Recently this court held:

In the context of determining amount of alimony or alimony pendente lite, proper employment of judicial discretion includes the mandate to apply the Divorce Code in a compassionate and reasonable manner to effectuate the overriding goal of achieving economic justice between the parties.

Murphy v. Murphy, 410 Pa.Super. 146, 599 A.2d 647 (1991).

After an exhaustive review of the evidence and testimony, we agree that wife has proven the requisite necessity to receive alimony. However, we find that the trial court abused its discretion by merely adopting the master’s recommendation which failed to include a statement of reasons for awarding alimony in the amount of four hundred dollars per month for ten years. Uhler, supra. See 23 Pa.C.S.A. § 3701(d).

The record establishes that during the course of the marriage wife did not work and remained at home to care for the children. She has had no formal training or skills to obtain self-supporting full time employment, but testified that she has a legitimate interest in returning to school to acquire the requisite skills to obtain a self-supporting job. This evidence supports an award of rehabilitative alimony. However, the trial court did not substantiate the amount and duration of its award. See Pa.C.S.A. § 3701(d).

The purpose of alimony “is not to reward one party and to punish the other, but rather to ensure that reasonable needs of the person who is unable to support himself or herself through appropriate employment, are met.” McNulty v. McNulty, 347 Pa.Super. 363, 371, 500 A.2d 876, 880 (1985). In Mazzei v. Mazzei, 331 Pa.Super. 432, 443, 480 A.2d 1111, 1116 (1984) this court held:

Under certain circumstances, if a party receiving alimony is able to provide for his or her reasonable needs through employment, the court is to fashion an alimony award to be in effect only until such employment has been obtained or the party has developed an appropriate employable skill.

Accordingly, in Ruth v. Ruth, 316 Pa.Super. 282, 462 A.2d 1351 (1983) an award of alimony of $400.00 per month for ten years as initially made by the master was held to be violative of the rehabilitative purpose of alimony. This court determined that alimony in the amount of $400.00 per month for 2 years “is fair and reasonable and will provide the wife with an adequate period of time for financial and family adjustments required by the marriage dissolution.” Id., 316 Pa.Superior Ct. at 290, 462 A.2d at 1355.

In the case at bar, we cannot discern why the trial court granted an alimony award of $400.00 per month for ten years, nor is there any evidence in the record or the master’s recommendation, adopted by the trial court, to substantiate such an award. Rehabilitative alimony for ten years is excessive when a college education leading to a self-supporting job would require approximately four years. Thus, we find the trial court abused its discretion in failing to comply with the mandate of 23 Pa.C.S.A. § 3701(d). Uhler, supra

We reverse the trial court order and remand for further proceedings in accordance with this decision. Jurisdiction relinquished.

      . We note that the Barretts did not have a joint tenancy either. In order to create a joint tenancy there must be a coalescence of four unities — time, title, interest, and possession. The divorce destroyed the unity of interest; what remained was a tenancy in common. See 23 Pa.C.S.A. § 3507(a).

      . Due to our resolution of the first and third issues, we need not address the remaining claims since the trial court will, on remand, have to revalue the marital estate and redistribute it in accordance with this opinion.


author: JOHNSON, Judge: DEL SOLE, Judge,

text:
    614 A.2d 303
    Stanley E. PREISER, Appellant, v. Richard ROSENZWEIG.
    Superior Court of Pennsylvania.
    Argued March 4, 1992.
    Filed Sept. 29, 1992.

      Howard A. Specter, Pittsburgh, for appellant.
    Avrum Levicoff, Pittsburgh, for appellee.
    Before DEL SOLE, JOHNSON and FORD ELLIOTT, JJ.
   JOHNSON, Judge:

In this appeal from an order sustaining preliminary objections in the nature of a demurrer, we are asked to determine whether an action in defamation grounded on a complaint against an attorney submitted to the Special Fee Determination Committee of the Allegheny County Bar Association may be dismissed on the basis of absolute or judicial privilege. Concluding that judicial privilege does not apply, we reverse and remand for further proceedings.

Stanley E. Preiser, Esquire, filed this civil action against Richard Rosenzweig, also an attorney, averring in his complaint that he had been defamed, both personally and professionally, as a lawyer, by Rosenzweig in a “ ‘Complaint’ ... submitted to the Fee Dispute Committee of the Allegheny County Bar Association.” Complaint Paragraph 5. The trial court sustained Rosenzweig’s preliminary objections in the nature of a demurrer and entered an order dismissing the action with prejudice on the basis of absolute or judicial privilege.

Preiser, who is licensed to practice as an attorney in our sister states of Kentucky and West Virginia, has, on occasion, been admitted to practice pro hoc vice in this Commonwealth. In May of 1990, Preiser had been retained by Rocco Viola, Jr., also an attorney, to represent Viola in a criminal matter pending in the United States District Court for the Western District of Pennsylvania. Following a dispute between Preiser and Viola over both the manner in which Preiser was representing Viola and the fees charged to Viola for this representation, Viola discharged Preiser as his attorney in August, 1990. In November of 1990, Preiser filed a breach of contract action against Viola in the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, Florida, at Docket No. 90-82903. After Viola retained Rosenzweig to represent him in the fee dispute with Preiser, Rosenzweig prepared and submitted a complaint on Viola’s behalf, personally verified by Viola, to the Allegheny County Bar Association Fee Dispute Committee. The Fee Dispute complaint alleged, in essence, that Preiser had overcharged Viola for services performed and expenses incurred, had failed to itemize his time properly and had been inefficient. Paragraph 23 of the Fee Dispute Complaint, by which Preiser claims he was defamed, states, as follows:

It became apparent to Viola that Stanley E. Preiser was suffering a mental or emotional impairment as evidenced by his actions and treatment of Viola as well as other counsel, his unnecessarily confrontational actions, irrational behavior and the wasting of time and energy on frivolous, unrelated matters. It was this exhibition of unbalanced and unlawyerlike behavior that necessitated the discharge of Stanley E. Preiser from the case. Preiser refused to talk to his client, Viola, and on many occasions, accosted other lawyers involved in the case in an overly abusive manner.

R. 17a-18a.

Preiser, contending that these statements, as published to the Fee Dispute Committee on February 14, 1991, were false and defamatory, brought this action in defamation against Rosenzweig. Rosenzweig filed preliminary objections asserting that the statements in the Complaint to the Special Fee Determination Committee are accorded absolute privilege under the laws of this Commonwealth. On June 19, 1991, the trial court granted the preliminary objections and dismissed the complaint determining the statements to be absolutely privileged on the basis of Smith v. Griffiths, 327 Pa.Super. 418, 476 A.2d 22 (1984). This appeal followed.

First, Preiser asserts that it is improper to raise the affirmative defense of “privilege,” by preliminary objection. He maintains that “privilege” as an affirmative defense must be raised in “new matter” pursuant to Pa.R.C.P. 1030.

It is black-letter law that issues not raised in the trial court are waived and cannot be raised for the first time on appeal. Pa.R.A.P. 302(a). Where a party erroneously asserts substantive defenses in preliminary objections rather than to raise these defenses by answer or in new matter, the failure of the opposing party to file preliminary objections to the defective preliminary objections, raising the erroneous defenses, waives the procedural defect and allows the trial court to rule on the preliminary objections. Duquesne Slag Products v. Lench, 490 Pa. 102, 415 A.2d 53 (1980); Button v. Button, 378 Pa.Super. 142, 548 A.2d 316 (1988). In this instance, the preliminary objections of Attorney Rosenzweig were properly before the trial court. Having failed to file preliminary objections to Rosenzweig’s preliminary objections in the trial court, Preiser has failed to preserve this issue for appellate review. This issue is waived.

Next, we turn to our scope of review in this matter. In an appeal from an order sustaining a preliminary objection in the nature of a demurrer, our scope of review is plenary, the same as that used by the trial court: preliminary objections which result in the dismissal of the suit or the denial of the claim, should be sustained only in cases which are clear and free from doubt. 5 Standard Pennsylvania Practice 2d § 25.71 at 239-40. Where any doubt exists as to whether a demurrer should be sustained, it must be resolved in favor of overruling the demurrer. Kyle v. McNamara & Criste, 506 Pa. 631, 487 A.2d 814 (1985); Baker v. Magnetic Analysis Corp., 347 Pa.Super. 188, 500 A.2d 470 (1985). The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Kyle v. McNamara & Criste, 506 Pa. at 634, 487 A.2d at 816. A demurrer should be sustained only in cases where the plaintiff has clearly failed to state a claim upon which relief may be granted. Eckell v. Wilson, 409 Pa.Super. 132, 597 A.2d 696 (1991). A demurrer should not be sustained if there is any doubt as to whether the complaint adequately states a claim for relief under any theory of law. Id. Moreover, in reviewing the complaint, we are to regard all well-pleaded facts as true and to give Preiser the benefit of all favorable inferences that we could fairly deduce from these facts. See Mazzagatti v. Everingham, 512 Pa. 266, 516 A.2d 672 (1986).

Preiser argues that the trial court erred in characterizing the proceeding before the Special Fee Determination Committee of the Allegheny County Bar Association as a judicial proceeding. Preiser also contends that the reliance of the trial court on Smith v. Griffiths, supra, to accord the Complaint, filed with the Fee Determination Committee, “judicial privilege,” is misplaced. We agree.

The controlling case in this Commonwealth concerning judicial privilege is Post v. Mendel, 510 Pa. 213, 507 A.2d 351 (1986). In Post, Mendel, an attorney, sent a letter to his trial adversary, Post, with copies to the disciplinary board, the trial judge and one of Post’s clients. Post filed a defamation action against Mendel based on statements contained in the letter. The trial court dismissed the defamation claim with prejudice. In Post v. Mendel, 336 Pa.Super. 467, 485 A.2d 1176 (1984), this court affirmed the trial court, holding that the statements in Mendel’s letter were subject to judicial privilege. Our supreme court reversed, determining the “alleged defamatory letter ... [was not] ... issued in the regular course of judicial proceedings as a communication pertinent and material to the redress sought” and that the letter was not “within the sphere of activities which judicial immunity was designed to protect.” Id., 510 Pa. at 221-22, 507 A.2d at 355-356.

[T]he protected realm [of judicial privilege] has traditionally been regarded as composed only of those communications which are issued in the regular course of judicial proceedings and which are pertinent and material to the redress or relief sought (emphasis in the original).

Id. The Supreme Court explained in discussing the facts in Post that the “alleged defamation did not in this instance occur in the pleadings, or in actual trial or the actual trial or argument of a case,” stating:

The reasons for the absolute privilege are well recognized. A judge must be free to administer the law without fear of the consequences. This independence would be impaired were he to be in daily apprehension of defamation suits. The privilege is also extended to parties to afford freedom of access to the courts, to witnesses to encourage their complete and unintimidated testimony in court and to counsel to enable him to best represent his clients interests.

Id., 510 Pa. at 221, 507 A.2d at 355 quoting Binder v. Triangle Publications, Inc., 442 Pa. 319, 323-24, 275 A.2d 53, 56 (1971).

In the present case, the trial court relied upon Smith v. Griffiths, supra. In Smith, the plaintiff was a lawyer who filed a defamation action against his wife’s counsel in a divorce proceeding. The defamation was alleged to have occurred in letters written by wife’s counsel to a court-appointed master conducting the hearing on wife’s petition for alimony and other matters. Smith also alleged that he had been defamed by wife’s lawyer during a pretrial conference in the judge’s chambers. In Smith, the trial court sustained defendant’s preliminary objections in the nature of a demurrer and was affirmed on appeal by this court. The petition for the allowance of appeal was denied by the supreme court on August 27, 1984.

Rosenzweig argues that we adopt a broad approach in which the application of judicial privilege is not limited to formal judicial proceedings. We decline to do so. As an intermediate appellate court, we are not free to disregard the existing law of this Commonwealth and the decisions of our supreme court. Dauphin Deposit Bank and Trust Co. v. Toyota Motor Corporation, 408 Pa.Super. 256, 258, 596 A.2d 845, 851 (1991). Rosenzweig attempts to argue that Smith is indistinguishable on the facts from the present case. We disagree. Smith concerned statements made to judicial officers, a judge and a court-appointed special master, in a judicial proceeding. The present case involves statements made to neither a judge nor an officer appointed by the court, but a voluntary association of lawyers seeking to mediate a fee dispute.

Yet, it is not necessary that we decide which of these analyses is the one to be followed in Pennsylvania. We need not explore either the extent or the impact of a particular analysis. Such determinations are the prerogative of the Supreme Court of Pennsylvania; moreover, we are compelled to follow the Supreme Court decision in Post in factual situations of the same class. We have held that:

Where the Supreme Court has spoken on a particular subject, it is our obligation, as an intermediate appellate court, to follow and apply that decision so as to establish some measure of predictability and stability in our case law. In the absence of a legally relevant distinction between the facts of a previous case and the case before us, we are obliged to follow the dictates of the Supreme Court’s decision in the prior case. Resolving cases by attempting to create irrelevant, factual distinctions impedes the application of stare decisis, the principal function of which is to imbue the judicial system with some measure of predictability and stability, and places the development of the law in a constant, uncertain state of flux such that neither practitioners nor trial judges can, with any degree of predictability, determine the proper application of the law to each new case involving similar facts that comes before them. It is also not our prerogative to apply different methods of analysis where the Supreme Court has made clear which particular analysis it believes should be applied to a particular situation.

Malinder v. Jenkins Elevator & Machine Co., 371 Pa.Super. 414, 421-22, 538 A.2d 509, 513 (1988).

Mindful of these precepts, we have reviewed the record in this case. Therefore, although we would be free to apply a different analysis and obtain a different resolution of the present case if there were no precedent for us to follow, we are compelled to follow the analytical framework establish by the Supreme Court in Post, and we reach a similar conclusion.

Based on our review of the record, we are unable to construe the Allegheny County Fee Dispute Committee as a court. Consequently, we find no authority based on Post, supra, which would support the extension of judicial privilege, as defined by the Pennsylvania Supreme Court, to such nonjudicial proceedings. Accordingly, we reverse the order of the trial court sustaining the preliminary objections in the nature of a demurrer and we remand this case for further proceedings in the trial court. While other issues were presented to the trial court by Rosenzweig’s preliminary objections, these issues were not subject to any ruling by the trial court in the disposition of this case. Accordingly, we deem it inappropriate for our Court to address such matters for the first time in this appeal.

The order of the trial court is reversed and the case is remanded for further proceedings consistent with this opinion. Jurisdiction is not retained.

Order reversed, case remanded.

DEL SOLE, J., files a dissenting opinion.

DEL SOLE, Judge,

dissenting:

The majority, based upon the conclusion that the judicial privilege does not extend to proceedings such as the instant fee determination dispute, has remanded the case for further proceedings in the trial court. I disagree.

Remand is required initially because it is not apparent from the record whether Appellant participated in the proceedings before the Special Fee Determination Committee of the Allegheny County Bar Association. The rules governing proceedings before the Committee require the agreement of both parties to participate in the proceedings and to have their dispute resolved by the Committee in order for the determination to be binding upon both of them. Therefore, the trial court must first determine whether Appellant agreed to participate. If he did not, the determination is not binding upon him and judicial immunity is inapplicable.

However, if it is determined that he did participate, judicial immunity should extend to protect the interests served by alternative dispute resolution proceedings such as the one in the instant case. Because such proceedings are designed to provide a forum for timely and conclusive resolution of disputes, the same privilege of judicial immunity should be extended to them, thus insuring the same efficiency inherent in the judicial process. Pennsylvania has no case law which prohibits the extension of immunity to alternative dispute resolution proceedings, and its public policy of facilitating efficient and effective resolution of disputes would be served by extending this privilege. Therefore, if both parties participated in the proceedings so as to be bound by the determination, the privilege would extend to protect statements made concerning Appellant in the complaint, and Appellant’s claim of defamation would be dismissed.

I respectfully dissent.


author: DEL SOLE, Judge: JOHNSON, Judge,

text:
    614 A.2d 308
    COMMONWEALTH of Pennsylvania v. Alonda ACIE, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 5, 1992.
    Filed Sept. 29, 1992.

      James R. Wilson, Public Defender, Pittsburgh, for appellant.
    Sandra Preuhs, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before DEL SOLE, JOHNSON and FORD ELLIOTT, JJ.
   DEL SOLE, Judge:

Ms. Alonda Acie plead guilty to three violations of the Controlled Substance, Drug, Device and Cosmetic Act. She was sentenced to not less than one year and no more than three years imprisonment and to pay a $5,000.00 fine. In spite of defense counsel’s efforts to persuade the sentencing court that application of 18 Pa.C.S.A. § 7508(a)(3)® did not prevent the court from allowing Appellant to serve her sentence through the Program for Female Offenders (the Program), the court directed that Appellant serve her sentence at the Muncy State Correctional Facility, concluding that the statute precluded it from exercising any discretion in sentencing to other than a prison setting. Appellant subsequently filed a motion for reconsideration of sentence which was denied. After the period for appeal expired, trial counsel withdrew and Appellant’s present counsel was appointed. A petition under the PosNConviction Relief Act requesting reinstatement of Appellant’s right to appeal was granted and this appeal filed.

First, we note that the Commonwealth, in its brief, has recommended we quash this appeal because of Appellant’s failure to comply with Pa.R.A.P. 2119(f) by not including in her brief, a “concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of [her] sentence”. In reply, Appellant has filed an amended brief containing a 2119(f) statement.

The issue before this court is whether the trial court erred in interpreting 18 Pa.C.S.A. § 7508(a)(3)(i) as preventing it from sentencing Appellant to a Program for Female Offenders. This is not a discretionary sentencing question. Rather it is a question of law and as such a 2119(f) statement is not required. The issue presented is not that the trial court chose one method of confinement over another available method. Rather, it is whether the statute prohibits such a choice. This question is similar to one challenging the computation of a prior record or offense gravity score. These issues are not discretionary. Therefore, we hold that a 2119(f) statement is not required and that where the issue is one of law, even though it impacts on a sentence, there exists a right of appeal. 42 Pa.C.S.A. § 9781(a).

Having concluded that Appellant has a right of appeal we now reach the merits of her argument. 18 Pa.C.S. § 7508(c) specifically states, “[t]here shall be no authority in any court to impose on an offender to which this section is applicable a lesser sentence than provided for heroin or to place the offender on probation, parole, work release or prerelease or to suspend sentence.” In the recent case of Commonwealth v. Logan, 404 Pa.Super. 100, 590 A.2d 300, allocatur denied, 528 Pa. 622, 597 A.2d 1151 (1991), this court specifically held that if it were to allow an appellant to serve her sentence in the Program rather than in a correctional facility, the requirements of § 7508(c) would not be met.

The Female Offender’s Program is designed to provide alternative housing in the County Jail and supervision for work release. In light of the statutory proscription against probation, parole, work release, prerelease or suspended sentences detailed in 18 Pa.C.S.A. § 7508(c), the legislature clearly intended persons sentenced under § 7508(a)(3)(iii) to serve their sentence in prison, i.e., a state correctional facility. The legislature enacted the mandatory minimum sentencing statute to deter drug traffickers with the imposition of harsh penalties. See Legislative Journal, Senate, February 23, 1988, p. 1784.

Id., 404 Pa.Super. 100, 105 n. 6, 590 A.2d 300, 302 n. 6 (1991).

We are therefore unpersuaded by Appellant’s argument that the lower court erred in concluding that the statute prevented it from considering alternative punishment. Both the language of the statute and the legislative intent underlying it, compelled the trial court to reject Appellant’s request. We therefore hold that the sentence of the trial court is affirmed.

JOHNSON, J., files a concurring and dissenting opinion.

JOHNSON, Judge,

concurring and dissenting.

I join in so much of the opinion of the majority as concludes that the sentencing court correctly interpreted the mandatory drug sentencing provision of 18 Pa.C.S. § 7508 as prohibiting a sentence in the Program for Female Offenders, an alternative housing facility. However, I must agree with the Commonwealth that the appellant has not demonstrated that there exists a substantial question that the sentencing court abused its discretion. Appellant has not properly invoked this court’s review and the appeal should be dismissed.

In October 1989, Alonda Acie entered a counseled guilty plea to four counts of drug offenses: (1) cocaine possession, (2) possession with intent to deliver, (3) delivery, and (4) criminal conspiracy. On January 2, 1991, the Honorable W. Terrence O’Brien sentenced Acie to a term of imprisonment of one to three years at Muncy, assessed a fine of $5,000 and restitution of $400. Acie’s sentence was stayed pending appeal and bond was continued.

Following a change of counsel and reinstatement of her appellate rights pursuant to the Post Conviction Relief Act, Acie now brings this delayed appeal from the January 1991 judgment of sentence.

In her Brief for Appellant filed September 23, 1991, Acie has failed to comply with the requirement of Pa.R.A.P. 2119(f) that a party seeking to challenge the discretionary aspects of sentencing “shall set forth in [her] brief a concise statement of the reasons relied upon for allowance of appeal.” Acie did file a Reply Brief for Appellant on October 16, 1991 which contains a Rule 2119(f) statement.

The majority would hold that a Rule 2119(f) statement is not required, because:

The issue before this court is whether the trial court erred in interpreting 18 Pa.C.S.A. § 7508(a)(3)(l) as preventing it from sentencing Appellant to a Program for Female Offenders. This is not a discretionary sentencing question. Rather it is a question of law and as such a 2119(f) statement is not required.

Majority opinion, pages 353-54. I cannot agree.

As Justice Zappala pointed out, speaking for the majority in Commonwealth v. Tuladziecki, 513 Pa. 508, 510, 522 A.2d 17, 18 (1987):

Appellate review of sentences is governed statutorily by Subchapter G of the Sentencing Code, 42 Pa.C.S. § 9781. It is not disputed that the sentence imposed in this case was legislatively permitted. Accordingly, the legality of the sentence is not implicated and any appeal therefrom is not as of right under subsection (a). Rather subsection (b) providing for appeal of the discretionary aspects of sentences by allowance controls.

The sole issue, as posed by Acie in her Brief for Appellant, is:

DID THE LOWER COURT ERR IN NOT SENTENCING THE DEFENDANT TO ALTERNATE HOUSING WITH THE PROGRAM FOR FEMALE OFFENDERS?

The refusal to provide the defendant with alternative housing, while sentencing within the statutory limits for the crime involved, cannot raise a claim of illegality. And Acie does not attempt to make that argument on appeal. Since the challenge is limited to the discretionary aspects of the sentence, we must examine the statement filed pursuant to Pa.R.A.P. 2119(f) in Acie’s Reply Brief in order to determine whether the appeal should be allowed. Tuladziecki, supra at 511, 522 A.2d at 19. “It is only where a party can articulate reasons why a particular sentence raises doubts that [the sentencing] scheme as a whole has been compromised that the appellate court should review the manner in which the trial court exercised its discretion.” Id. at 515, 522 A.2d at 20.

In Commonwealth v. Williams, 386 Pa.Super. 322, 562 A.2d 1385 (1989) (en banc), quoting Commonwealth v. Losch, 369 Pa.Super. 192, 201 n. 7, 535 A.2d 115, 119 n. 7 (1987), we said:

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

Williams, 386 Pa.Super. at 324-325, 562 A.2d at 1387.

Acie’s Concise Statement of Reasons Relied On For the Granting of an Allowance of Appeal Pursuant to Pa.R.A.P. 2119(f) does neither. The Concise Statement sets forth the crimes for which Acie was convicted and the penalties for each of those offenses. The Statement sets forth information relevant to the Sentencing Guidelines, including prior record score, offense gravity score and guideline sentence ranges. After setting forth that factual data, without in any way disputing its accuracy, the Statement then goes on to set forth:

The delivery in this case involved a mixture containing cocaine whose weight was in excess of 2 grams, the court therefore imposed the mandatory minimum of one (1) to two (2) years imprisonment [sic] and a fíne of $5,000.00 pursuant to 18 Pa.C.S. § 7508(a)(3)(i). No further sentence was imposed on the other counts.
The court abused its discretion in misinterpreting the case law and sentencing Ms. Acie to the Mandatory minimum and not sentencing her to the Program for Female Offender’s [sic]. Where, as here, the court determined that the defendant would be entitled to such a sentence, in the absence of 42 Pa.C.S. § 7508, error in not imposing that sentence presents a substantial question that the legislatively promulgated sentencing scheme has been compromised and an appeal should be granted.

I cannot read the above Statement as claiming that Judge O’Brien’s sentencing actions were inconsistent with any specific provision of the Sentencing Code. Nor can I understand Acie to be contending that imposition of the minimum mandatory sentence as required by statute is “contrary to the fundamental norms which underlie the sentencing process.” The Motion for Reconsideration of Sentence sets forth, in pertinent part:

1. Defendant was sentenced by this Honorable Court.... to a period of one (1) to two (2) years of incarceration.
2. Defendant was ordered to serve said sentence at Muncy.
3. The Court erred in not allowing defendant to serve said sentence at the Program for Female Offenders.

The decision by Judge O’Brien to “not allow” Acie to serve her sentence in an alternative housing facility does not give rise to a substantial question that the sentence imposed is inappropriate, where the statute under which Acie was required to be sentenced provides for a “mandatory minimum term of imprisonment and a fine____[of] one year in prison and a fine of $5,000.” 18 Pa.C.S. § 7508(a)(3)(i).

The determination as to whether a substantial question exists must be made prior to examination of and ruling on the merits of the issue of the appropriateness of the sentence; otherwise the appellant obtains, in effect, an appeal as of right from the discretionary aspects of sentence. Tuladziecki, supra, 513 Pa. at 513, 522 A.2d at 19; Commonwealth v. Gambal, 522 Pa. 280, 286, 561 A.2d 710, 713 (1989); Commonwealth v. Williams, supra, 386 Pa.Super. at 327, 562 A.2d at 1387.

Where the Brief does not contain a Rule 2119(f) statement and the Reply Brief falls short of setting forth a substantial question within the Rule 2119(f) statement provided, I am constrained to conclude that allowance of appeal should be denied. Acie does not claim that Judge O’Brien considered any inappropriate factors. Nor does she claim that the trial court refused to consider appropriate factors. In claiming that Judge O’Brien abused his discretion “in misinterpreting the case law and sentencing Ms. Acie to the Mandatory minimum and not sentencing her to the Program for Female Offender’s”, (Reply Brief for Appellant at 4), appellant is doing nothing more than asking this Court to substitute its judgment for that of the sentencing court. This does not present a substantial question that the sentence was inappropriate under the Sentencing Code. Commonwealth v. John, 408 Pa.Super. 234, 245, 596 A.2d 834, 839-40 (1991); Commonwealth v. Brown, 402 Pa.Super. 365, 368, 587 A.2d 4, 5-6 (1991).

I would deny the allowance of appeal and dismiss it, while affirming judgment of sentence. Accordingly, I must dissent from the majority’s finding that a right of appeal exists. See Commonwealth v. McFarlin, 402 Pa.Super. 502, 587 A.2d 732 (1991) aff'd 530 Pa. 167, 607 A.2d 730 (1992).

      . Appellant was charged with violating the following sections: Delivery (35 Pa.S. § 780-113(a)(3)); Possession with Intent to Deliver (35 Pa.S. § 780-113(a)(30)); Possession (35 Pa.S. § 780-113(a)(16)) and one count of Criminal Conspiracy (18 Pa.C.S. § 903(a)(1)).

      . While we are aware of certain unpublished decisions of this court that seem to indicate a 2119(0 statement is necessary where a similar claim has been made, we find that they did not address the question of whether the issue under review was a discretionary sentencing question. Having concluded it is not, we reach this result.