author: CIRILLO, Judge:

text:
    632 A.2d 903
    PBS COAL, INC. v. HARDHAT MINING, INC., a partner doing business as Lion Mining Company, and Lion Mining Co., Appellants.
    Superior Court of Pennsylvania.
    Argued Sept. 1, 1993.
    Filed Oct. 20, 1993.

      Gregg M. Rosen, Pittsburgh, for appellants.
    Vincent J. Barbera, Somerset, for appellee.
    Before ROWLEY, President Judge, and WIEAND and CIRILLO, JJ.
   CIRILLO, Judge:

This is an appeal from an order entered in the Court of Common Pleas of Somerset County granting appellee PBS Coal, Inc.’s (PBS) petition for stay of arbitration. We affirm.

In 1989, PBS and appellant Lion Mining Company (Lion) entered into a coal mining agreement (Mining Agreement). Under the Mining Agreement, Lion was to conduct a deep mining operation on the property owned or leased by PBS. In conjunction with the Mining Agreement, the parties entered into a Coal Supply Agreement whereby Lion agreed to mine and sell coal to PBS.

Pursuant to the agreements, Lion mined the coal until January, 1991, when it ceased all of its mining operations. By a letter dated April 3, 1992, PBS notified Lion that its abandonment amounted to a default under paragraph 17A(iii) of the Mining Agreement. Paragraph 17 provides in pertinent part:

A. It is agreed that the following shall constitute acts of default by a party hereunder.
i. The neglect or refusal of Contractor [Lion] to make payment of royalties, taxes or other sums required to be paid by Contractor hereunder ...
Hs ❖ ❖ ❖ ❖
iii. The failure of Contractor [Lion] to commence Deep Mining Operations or to mine such tons of raw coal from the Project Area as are necessary for Contractor to comply with the requirements of the Coal Supply Agreement, or the breach by either party of the Coal Supply Agreement.
Hi H« H« H* :je

(emphasis added). The record reflects that PBS orally notified Lion’s counsel that it did not consider the issue to be arbitrable. Thereafter, counsel for Lion notified PBS of its position to the contrary and appointed an arbitrator as directed by paragraph 18 of the Mining Agreement. Paragraph 18 of the Mining Agreement specifies that “any dispute arising between the parties hereto shall be subject to arbitration in accordance with the Arbitration Act of 1927 ... and in accordance with the rules then followed by the American Arbitration Association, subject to the following:

Arbitration shall in no wise toll or limit Owner’s [PBS] rights and remedies with respect to defaults specified in Section 17A., subparagraphs (i), (iii), (iv), (v) or (vi). With respect to matters specified at subparagraph (ii), Owner’s rights and remedies shall only be deferred until the arbitrator’s determination that a default exists thereunder.

(emphasis added).

PBS filed a praecipe for writ of summons to enforce its rights and remedies under subparagraph 17A(iii), supra, and a petition for stay of arbitration pursuant to 42 Pa.C.S.A § 7304(b) claiming that the dispute between the parties was not arbitrable as defined by the provisions of the Mining Agreement. Lion filed a response and new matter and a petition to disqualify PBS’s arbitrator. After arguments, President Judge Eugene E. Fike, II issued a memorandum and order granting PBS’s petition for stay of arbitration and dismissing Lion’s petition to disqualify the arbitrator as moot. This timely appeal followed. On appeal, Lion presents one issue for our review: Whether a coal mining agreement, which contains a broad arbitration clause that requires the parties to arbitrate all disputes other than those specifically exempted from arbitration, mandates arbitration of threshold issues uniquely suited for arbitration.

It is well settled that when one party to an agreement seeks to prevent the other from proceeding to arbitration, our inquiry is limited to determining: (1) whether a valid arbitration agreement was entered into and, if so, (2) whether the dispute in question is within the scope of the arbitration provision. Flightways Corp. v. Keystone Helicopter Co., 459 Pa. 660, 663, 331 A.2d 184, 185 (1975); Canter’s Pharmacy v. Elizabeth Assoc., 396 Pa.Super. 505, 508, 578 A.2d 1326, 1328 (1990); accord Sanitation Sewer Auth. v. Dial Assoc., 367 Pa.Super. 207, 532 A.2d 862 (1987); Hoffman v. Gekoski, 250 Pa.Super. 49, 378 A.2d 447 (1977). Arbitration is a matter of contract and absent an agreement between the parties to arbitrate an issue, they cannot be compelled to arbitrate. Shapiro v. Keystone Ins. Co., 384 Pa.Super. 397, 403, 558 A.2d 891, 894 (1989). Agreements to arbitrate are to be strictly construed and should not be extended by implication. Emmaus Municipal Auth. v. Eltz, 416 Pa. 123, 204 A.2d 926 (1964); see also Dickler v. Shearson Lehman Hutton, Inc., 408 Pa.Super. 286, 596 A.2d 860 (1991). In addition, if the agreement or contract clearly includes or excludes particular issues or remedies from arbitration, a court may so hold without submitting these matters to arbitration. Aleo Standard Corp. v. Benalal, 345 F.Supp. 14, 22 (E.D.Pa.1972).

In this case, Lion contends that the dispute between the parties is arbitrable because it is not specifically exempted from arbitration under the Mining Agreement. More specifically, Lion asserts: (1) that its contractual duty to mine and deliver coal to PBS under paragraph 17A(iii) of the agreement was never triggered; (2) that because of the nonexistence of minable and/or merchantable coal, the term of the agreement expired and, thus, Lion’s duty under the agreement was discharged; (3) that since the agreement limited the scope of Lion’s duty to mining the minable and merchantable coal which could be practically and profitably mined, the purpose of the contract was fulfilled; and (4) that its duty was discharged due to the nonexistence of the requisite coal which frustrated the purpose of the agreement. In summary, Lion contends that these threshold issues do not fall within the ambit of 17A(iii) of the Mining Agreement and, therefore, are subject to arbitration under the broad and general arbitration language of the agreement. We disagree.

Arbitrability of an issue is to be determined by the intention of the parties as ascertained in accordance with the rules governing contracts generally. Sley System Garages v. Transport Workers Union of America, 406 Pa. 370, 373-74, 178 A.2d 560, 561-62 (1961). To ascertain the intent of the parties, a court must first look to the four corners of the document — the express language of the contract. See Rusiski v. Pribonic, 511 Pa. 383, 515 A.2d 507 (1986); Gianni v. Russell & Co., Inc., 281 Pa. 320,126 A. 791 (1924). Moreover, where specific or exact terms seem to conflict with broader or more general terms, the former is more likely to express the meaning of the parties with respect to the situation than the general language. Restatement (Second) of Contracts § 203(c) (1981); see Spatz v. Nascone, 283 Pa.Super. 517, 424 A.2d 929 (1981).

Here, Lion raises numerous contractual defenses or excuses for non-performance in order to rebut PBS’s claim that Lion’s stoppage resulted in default as defined by paragraph 17A(iii) of the agreement. Thus, Lion asserts that since these threshold or preliminary questions are not specifically enumerated in the Mining Agreement as exceptions to arbitration, they are arbitrable under the broad language of the arbitration provision. However, we find that PBS’s claim that Lion failed to mine and deliver coal as required by the Coal Supply Agreement clearly falls within the exception to arbitration set forth at paragraph 17A(iii).

Ordinarily, parties agree to submit any and all disputes arising from the contract to arbitration. In this case, however, the specific terms of the arbitration clause predominate over the general intent of the parties to submit “any dispute” to arbitration. This is evidenced by the parties’ choice to contractually define what acts of the parties shall constitute “default.” In addition, the parties have decided to treat defaults under paragraph 17A(ii) differently than those under paragraphs 17A(i), (iii), (iv), (v) and (vi). Under the default defined in paragraph 17A(ii), PBS must forego its other possible rights and remedies against Lion until an arbitrator determines that a default under this subparagraph, in fact, exists. Given the sophistication of these parties, had they intended to require an arbitrator to determine that a default exists under 17A(i), (iii), (iv), (v) or (vi) prior to PBS taking any other action, they would have provided for such in the agreement. We hold, therefore, that the trial court was correct in finding that PBS’s claim against Lion for default was excepted from arbitration under the agreement. Flight-ways, supra.

Order affirmed.

      . The relevant statute, 42 Pa.C.S.A. § 7304(b), provides:
      § 7304. Court proceedings to compel or stay arbitration
      # * * * * *
      (b) Stay of arbitration. — On application of a party to a court to stay an arbitration proceeding threatened or commenced the court may stay an arbitration on a showing that there is no agreement to arbitrate. When in substantial and bona fide dispute, such an issue shall be forthwith and summarily tried and determined and a stay of arbitration proceedings shall be ordered if the court finds for the moving party ...
      # Sjt ^
      (emphasis added).

      . Lion’s Reply Brief more concisely articulated its issue on appeal: Whether technical threshold issues which are not exempt from arbitration must be arbitrated before or while other non-arbitrable questions of breach of contract are litigated in court.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    632 A.2d 906
    DRESSEL ASSOCIATES, INC., Appellant, v. JOHN A. WELSCH REAL ESTATE APPRAISERS, INC., Appellee.
    Superior Court of Pennsylvania.
    Argued Aug. 31, 1993.
    Filed Oct. 18, 1993.

      Thomas W. Renwand, Pittsburgh, for appellant.
    Thomas J. Dempsey, Pittsburgh, for appellee.

      Before ROWLEY, President Judge, and WIEAND and CIRILLO, JJ.
   WIEAND, Judge:

Dressel Associates, Inc. (Dressel) contracted with Raimund G. Rueger to purchase Rueger’s interest in a Pittsburgh Office building. The price was to be determined consistently with an independent appraisal, by which both parties agreed to be bound. The appraiser selected by the parties was John A. Welsch Real Estate Appraisers, Inc. (Welsch). An appraisal was then made and formed the basis on which the buyer and seller closed their transaction. Thereafter, Dressel filed an action against Welsch in which it claimed that the appraisal had contained errors, had been negligently made, and had caused Dressel to be damaged. Welsch filed preliminary objections in the nature of a demurrer to the complaint, which were sustained by the trial court. From the adverse ruling of the trial court, Dressel appealed.

When considering an appeal from an order granting preliminary objections in the nature of demurrer, we must accept as true all well pleaded facts in the complaint and all reasonable inferences to be drawn therefrom. The demurrer will be sustained only if it is certain that the law does not permit recovery under the facts pleaded. Daniel Adams Assoc. v. Rimbach Pub. Inc., 287 Pa.Super. 74, 76, 429 A.2d 726, 727 (1981). See also: AM/PM Franchise Assoc. v. Atlantic Richfield Co., 373 Pa.Super. 572, 576, 542 A.2d 90, 92 (1988), modified, 526 Pa. 110, 584 A.2d 915 (1990).

In dismissing Dressel’s complaint and entering judgment in favor of Welsch, the trial court relied upon paragraph 3 of the sales agreement between Dressel and Rueger which provided as follows:

The appraiser’s opinion of the fair market value shall be conclusive and binding upon Buyer [Dressel] and Seller [Rueger] and neither party shall have any right to challenge the appraiser’s determination of the Property’s fair market value, except upon proof of fraud or collusion between the appraiser and one of the parties hereto.

The court concluded that Welsch was intended to be a third party beneficiary of this provision and, therefore, immune from liability to either party for carelessness in making its appraisal. It is clear, however, that Welsch was employed orally by both buyer and seller and that his employment agreement did not include such immunity.

Under Pennsylvania law, a third party may enjoy the benefits of a contractual agreement if both parties to the contract affirmatively state their intention to benefit the third party in the contract itself. Spires v. Hanover Fire Ins. Co., 364 Pa. 52, 70 A.2d 828 (1950). See also: Scarpitti v. Weborg, 530 Pa. 366, 372-373, 609 A.2d 147,149-150 (1992); Marsteller Community Water Auth. v. P.J. Lehman Engineers, 413 Pa.Super. 387, 393, 605 A.2d 413, 416 (1992).

After carefully reviewing the Dressel-Rueger agreement, we conclude that neither party expressly intended to establish third party benefits in favor of the appraiser. Paragraph 3 of the agreement of sale, when read in context with the entire agreement, is clearly an attempt by Rueger and Dressel to define their corresponding rights inter se. The language used does not indicate that they intended to relieve the appraiser of a duty to exercise care and diligence in making the appraisal or of liability for failure to use the skill employed by others engaged in a similar profession. We conclude, therefore, that Welsch was not intended to be a third party beneficiary of the provision in the sales agreement by which buyer and seller agreed to be bound by and to close their transaction for a price to be determined by Welseh’s appraisal.

In Guy v. Liederbach, 501 Pa. 47, 459 A.2d 744 (1983), the Pennsylvania Supreme Court adopted Section 302 of the Restatement (Second) of Contracts (1979) pertaining to intended and incidental beneficiaries of contracts. This section of the Restatement is as follows:

§ 302. Intended and Incidental Beneficiaries
(1) Unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and either
(a) the performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary; or
(b) the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.
(2) An incidental beneficiary is a beneficiary who is not an intended beneficiary.

This, the Court said, provides:

“a two part test for determining whether one is an intended third party beneficiary: (1) the recognition of the beneficiary’s right must be “appropriate to effectuate the intention of the parties,” and (2) the performance must “satisfy an obligation of the promisee to pay money to the beneficiary” or “the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.” The first part of the test sets forth a standing requirement. For any suit to be brought, the right to performance must be “appropriate to effectuate the intentions of the parties.” This general condition restricts the application of the second part of the test, which defines the intended beneficiary as either a creditor beneficiary (§ 302(l)(a)) or a donee beneficiary (§ 302(l)(b)), though these terms are not themselves used by Restatement (Second). Section 302(2) defines all beneficiaries who are not intentional beneficiaries as incidental beneficiaries. The standing requirement leaves discretion with the trial court to determine whether recognition of third party beneficiary status would be “appropriate.” If the two steps of the test are met, the beneficiary is an intended beneficiary “unless otherwise agreed between promisor and promisee.”

Guy v. Liederbach, supra at 60-61, 459 A.2d at 751. See also: Scarpitti v. Weborg, supra at 372, 609 A.2d at 149; Gerace v. Holmes Protection of Philadelphia, 357 Pa.Super. 467, 516 A.2d 354 (1986), allocatur denied, 515 Pa. 580, 527 A.2d 541 (1987).

In the instant case, Welseh fails to meet either part of the test. To achieve standing as a third party beneficiary under the Restatement approach, the facts must be “so compelling that recognition of the beneficiary’s right is appropriate to effectuate the intention of the parties____” Scarpitti v. Weborg, supra at 373, 609 A.2d at 150. Welseh was one of five appraisers approved in advance by the parties. The parties did not add provisions to their sales agreement in order to induce Welseh to undertake the appraisal. On the contrary, paragraph 3 of their agreement was inserted in order to ascertain a fair price, simplify their negotiations and fix their corresponding obligations to each other. Welseh was agreed upon by the parties and employed to make the appraisal by an independent contract of hire. He was paid separately for his services. Granting him immunity for negligence in making the appraisal was not necessary to further the intention of the parties to reach a satisfactory price for the real estate interest being sold.

Welseh also cannot meet the second part of the test. The appraisal that he was hired to make will not satisfy an obligation owed by either party to the sales agreement, and the circumstances do not indicate that either party intended to benefit Welseh by their agreement. Welseh was neither a creditor beneficiary nor a donee beneficiary. He simply was not intended to be a beneficiary of the agreement between the buyer and the seller which was intended only to fix the rights and obligations between them.

There is no merit in appellee’s contention that an appraiser should be granted the same immunity as an arbitrator. An arbitrator hired to assist in dispute resolution serves in a quasi-judicial role. Welseh, however, was employed to provide a professional service and, like other professionals, was responsible to use skill and care in performing the service for which he was hired. . Such a person is not entitled to the same immunity from liability as the law provides for judicial officers.

Reversed and remanded for further proceedings. Jurisdiction is not retained.

      . We do not find the expressed intention of the parties to be ambiguous in any way. If they were ambiguous, however, so as to require parol evidence to ascertain the parties’ true intent, a judgment on the pleadings in favor of the appraiser was nevertheless inappropriate.


author: BROSKY, Judge.

text:
    632 A.2d 909
    KEYSTONE FUNERAL DIRECTORS ASSOCIATION, Appellant, v. CALVARY CEMETERY ASSOCIATION, Calvary Family Services, Inc., Daniel R. Myers, Anthony P. Scaglione, Vincent Good, and Theodore J. Feller.
    Superior Court of Pennsylvania.
    Argued June 23, 1993.
    Filed Oct. 22, 1993.

      Marcia L. Cooper, Pittsburgh, for appellant.
    Frank P. Clark, Harrisburg, for Calvary Cemetery & Calvary Family, appellees.
    Benjamin H. Claar, Jr., Hollidaysburg, for Myers, Scaglione, Good & Feller, appellees.
    Before OLSZEWSKI, HOFFMAN and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from an order granting preliminary objections and dismissing appellant’s complaint in equity. One issue is presented for our resolution, whether the court of common pleas, sitting in equity, has jurisdiction to enjoin individuals pursuant to 63 P.S. § 479.12 prior to a determination of the State Board of Funeral Directors that the individuals are in violation of the Funeral Directors Law? We vacate and remand.

Appellant is an association of licensed funeral directors located primarily in Blair and Cambria County. They allege that appellees have participated in, and continue to participate in, activities in violation of the Funeral Directors Law. Appellant filed a complaint in equity in the Court of Common Pleas of Blair County seeking to enjoin appellees from certain allegedly illegal activities. Appellees filed preliminary objections raising, among other things, that the court lacked jurisdiction to enjoin appellees prior to a finding by the Board of a violation(s) of the Funeral Directors Law. The court agreed and dismissed appellant’s complaint pending actions by the board. Appellant filed this appeal and we now consider the question. .

The relevant section of the Funeral Director’s Law, 68 P.S. § 479.12, states:

(a) All actions of the board shall be taken, subject to the right of notice, hearing and adjudication and the right of appeal therefrom, in accordance with the provisions of the Administrative Agency Law.
(b) Any association of funeral directors or any party in interest shall be entitled to be heard by the board in any proceeding under the Administrative Agency Law. Any association of funeral directors or any person having an interest may, by an action in equity, obtain an injunction to prevent the illegal operation of a person, firm, corporation or establishment in violation of law or the regulations of the board.
(C) The board, upon the advice of the Attorney General, may maintain an action in the name of the Commonwealth for an injunction or other process against any person to restrain or prevent his practicing the profession of a funeral director in a public or private capacity. No action brought under the provisions of this act shall prevent the prosecution or institution of any civil or criminal action provided by this act for violation thereof or of any rule or regulation of the board promulgated thereunder.

Section 479.12(b), states that any association of funeral directors or interested person may obtain an injunction, by action in equity, to prevent the illegal operation of funeral services. Despite the fact that the text of § 479.12 does not state that a finding of illegal activity by the Board is a prerequisite to seeking injunctive relief, the trial court concluded that an injunction could not be sought until the Board had made a finding that a violation of the Act had occurred. The court states “what Plaintiffs attempt to do by this action is circumvent the State Board of Funeral Directors entirely by initially bringing their request for a finding of illegal operations/request for injunctive relief before this Court at the outset.” Trial Ct.Op. at p. 7. This statement seems to suggest that there is a remedial alternative for an association or interested party, who believes that another is operating illegally, to seeking an injunction in equity. It further suggests that this alternative is to litigate the matter before the Board. Upon inspection of the Act neither premise seems to be supported by the text of the Act itself.

Clearly, the Board does not have the ability to issue injunctive relief as it is not a court of law and as the Act does not empower the Board to issue an injunction. The absence of authority to issue an injunction or otherwise prevent a party from violating the Act is also deducible from the fact that subsection (c) allows the Board to bring an action for injunctive relief in the name of the Commonwealth. Such a provision would be unnecessary if the board was empowered to issue an injunction itself. Consequently, if injunctive relief is the most appropriate remedy the Board cannot provide it and a litigant will eventually be required to seek redress from the Court of Common Pleas in any event. Further, this means that requiring a litigant to seek a finding of illegal operation from the Board prior to seeking an injunction, assuming that the Board is even empowered to entertain such a request, will require a litigant to endure two separate proceedings to obtain the injunction when, conceivably, one would suffice.

As to litigating the matter before the Board initially, or, in the words of the trial court, making a request “for a finding of illegal operations,” the Act does not appear to contain express provisions allowing an association to institute an action for civil or criminal sanctions against an alleged violator in front of the Board or for requesting a finding of illegal operations. Subsection (b) allows a party in interest or an association of funeral directors to be heard in any proceeding conducted under the Act. Ostensibly then, in a proceeding between the Board and another party appellant would have a right to be heard in the matter. However, although the language of the Act confers a right on the part of an association or interested party to be heard in a proceeding it does not similarly confer the right to initiate or institute a proceeding. Indeed, the Funeral Directors Act does not even contain provisions for the filing of a formal complaint against someone believed to be violating the Act so as to apprise the Board of the alleged violations. Contrast this with the provisions relating to various other professions regulated by a “board” and covered in Title 63.

The comparable provisions of the Auctioneer and Auction Licensing Act states that:

“the board may, upon its own motion, and shall, promptly upon the verified complaint in writing of any person setting forth specifically the wrongful act or acts complained of, investigate any action or business transaction of any person licensed by the board and may temporarily suspend or revoke licenses.... ” 63 P.S. § 734.20.

Similarly, the Real Estate Licensing and Registration Act provides:

“The commission may upon its own motion, and shall promptly upon the verified complaint in writing of any person setting forth a complaint under this section, ascertain the facts and, if warranted, hold a hearing for the suspension and revocation of a license.... ” 63 P.S. § 455.-604.

With respect to Architects there is a section with the heading “Complaint procedures and hearings.” The text of that section states:

“Any person may prefer charges against a person licensed under the provisions of this act by submitting a written statement of charges, sworn to by the complainant, to the board.” 63 P.S. § 34.21.

Similar provisions can be found with respect to pharmacists, 63 P.S. § 390-7(a)(2), motor vehicle manufacturers, dealers and salespersons, 63 P.S. § 818.4(3), and nursing home administrators, 63 P.S. § 1104(a)(5). Additionally, the duty of the board to conduct investigations of complaints is referred to in §§ 457.5(4), 485.5(10) and 1303(a), with respect to real estate appraisers, veterinarians and physical therapists respectively. Whereas the various acts outlined above contain specific provisions whereby a third party may register some form of complaint against an alleged violator and have them investigated by the board, the Act in question here is silent as to the filing of complaints with the State Board of Funeral Directors. In light of the fact that such provisions are provided elsewhere in the Title regarding the regulation of other professions, their absence in the section regulating funeral directors clearly handicaps appellees’ argument that there existed administrative avenues open to appellant. However, even if there existed obvious administrative remedies available to appellant it is not necessarily true that appellant would be obligated to exhaust them prior to seeking injunctive relief.

In Frye Construction, Inc. v. City of Monongahela, 526 Pa. 170, 584 A.2d 946 (1991), an adjacent landowner to Frye constructed structures on its property which were not encompassed in a building permit issued to the landowners and which were not permitted by the applicable zoning ordinance. When the zoning authorities ignored Frye’s complaints, Frye filed actions in court. One action was a mandamus action, the other action was in equity. Both actions were dismissed for failure to exhaust administrative remedies. The Court remarked that exhaustion of administrative remedies was not an absolute doctrine and that the decision whether or not to apply the doctrine was itself a matter of the exercise of judgment and discretion. With respect to the equity action, the Commonwealth Court had remarked, as did the court below, that dismissal was proper because the parties were attempting to do indirectly what they could not do directly, namely, adjudicate in equity a matter properly left for the board. Our Supreme Court reversed noting that Frye could not achieve the desired enforcement remedy, removal of the offending structures, from the City Zoning Board. The Court remarked that although ordinarily the primary duty of enforcing zoning regulations rested with zoning authorities, the landowner, whose enjoyment of his own property would be encroached by the violations, had an interest that could be protected by seeking an injunction.

Similarly, in Ohio Casualty Group v. Argonaut Insurance Co., 514 Pa. 430, 525 A.2d 1195 (1987), our Supreme Court remarked “exhaustion -will not be required when the administrative process is not capable of providing the relief sought.” 525 A.2d at 1198. Perhaps even more appropriate to our case was the Court’s additional commentary:

Under the doctrine of exhaustion before a litigant can be denied access to the courts there must be a forum available in which he or she can participate. Nebulous claims of informal procedures or implied administrative powers are unavailing since it is clear that without a concrete procedural remedy the litigant could in no way achieve a resolution of his claim except by the grace of the party against whom he is proceeding.

Id, 525 A.2d at 1198. As remarked earlier, the text of the Act has no express provisions for a third party to seek relief against an alleged violator. Nor have appellees or the trial court clearly stated what the supposed administrative remedies, that should be exhausted prior to allowing access to the court, are. The assertion of these remedies is, at best, nebulous and under Ohio Casualty, will not prevent access to the court of common pleas. As the Board cannot provide appellant with an injunction, and as there appear to be no administrative remedies available to appellant under the Act, Frye and Ohio Casualty suggest that the forum of choice is the Court of Common Pleas.

The trial court and appellee argue that had the legislature wished to allow a party to seek injunctive relief prior to the Board’s finding of a violation the first sentence in subsection (b) could have stated that any association shall be entitled to be heard by the Board in any proceeding under the Administrative Agency Law or by the Court of Common Pleas. Trial Ct.Op. at 7. However, this argument does not consider the lack of provisions for initiating an action by an association or interested party. The argument seems to equate being “heard” by the Board as a right to institute proceedings. As outlined above, there is no express language of the Act allowing an association to institute proceedings before the Board. In contrast, the language referring to an injunction states that an association or interested party may obtain an injunction by action in equity. This language would appear to specifically contemplate the association or interested person initiating the proceedings by complaint in equity in the Court of Common Pleas. Furthermore, in similar vein to the argument of appellee and the trial court, had the legislature wished to require an association or interested party to adjudicate the violations before the Board prior to seeking injunctive relief it could have simply added language stating “after a finding of a violation by the Board” to the provisions regarding an action in equity.

Appellees also argue that Stiles v. Stiles, 397 Pa. 352, 155 A.2d 367 (1959), supports their position. In Stiles, an individual sought an injunction to prevent a former partner in a funeral establishment, his brother, from practicing in violation of the Act. The plaintiff argued that his brother continued to operate a funeral business although he was no longer licensed to do so and that as a result the plaintiff was losing business to him. The court dismissed on the basis of jurisdiction. Our Supreme Court found that the Court of Common Pleas of Philadelphia County did have jurisdiction to issue an injunction to enjoin illegal operation of funeral services. The Court noted that the facts alleged contradict the contention that the plaintiff had not exhausted his remedies before the Board. Appellees argue that this supports a contention that the Board must find a violation prior to the court of common pleas exercising jurisdiction. We disagree.

The allegations referred to by our Supreme Court were that plaintiffs brother continued to operate a funeral home despite being specifically directed not to by the Board. The allegation does not indicate how the Board came to direct plaintiffs brother to stop providing funeral services. It does not indicate whether that directive was a result of the^ institution of a proceeding by plaintiff before the Board or one initiated by the Board itself. In light of the absence of express provisions in the Act which allows institution of adjudications in front of the Board by associations or interested parties, we cannot conclude that this footnoted reference allows, let alone requires, a party to seek a finding by the Board prior to seeking equitable relief. Furthermore, in Stiles the finding by the Board that the individual was operating illegally did not prevent that individual from practicing anyway. Consequently, an action in equity was required despite the Board’s involvement. The same result could follow the Board’s finding here that appellees are violating the Act. Should that happen, either appellant or the Board would then be required to seek an injunction. These facts seem to support the appropriateness of allowing the court of common pleas to entertain equity jurisdiction regardless of whether the Board has made a specific finding of illegal operation.

For the above reasons we conclude that § 479.12 of the

Order vacated, case remanded. Jurisdiction relinquished.

      . The facts of Stiles v. Stiles, 397 Pa. 352, 155 A.2d 367 (1959), discussed infra, further support this premise.


author: OLSZEWSKI, Judge:

text:
    632 A.2d 913
    PHAR-MOR, INC., An Ohio Corporation, Appellant, v. UNITED FOOD AND COMMERCIAL WORKERS UNION LOCAL 1776 AFL-CIO, CLC and all Members Acting in Concert Within and Agents Thereof, Appellees.
    Superior Court of Pennsylvania.
    Argued Aug. 31, 1993.
    Filed Oct. 29, 1993.

      David B. Rodes, Pittsburgh, for appellant.
    Wayne Wynn, Philadelphia, for appellees.
    Before OLSZEWSKI, JOHNSON and HUDOCK, JJ.
   OLSZEWSKI, Judge:

Phar-Mor, Inc. [“Phar-Mor”] appeals from the order of the Court of Common Pleas of Philadelphia County denying its petition for a preliminary injunction. We affirm.

The undisputed facts follow. From July, 1990 through November, 1990, United Food and Commercial Workers Union Local 1776 [“Local 1776”] conducted a campaign to organize workers at Phar-Mor stores, including appellant’s stores at Franklin Mills Mall and Great Northeast Plaza [“the Stores”]. Local 1776 representatives repeatedly entered the Stores to distribute union literature and converse with Phar-Mor employees in an attempt to persuade them to adopt Local 1776 as their collective bargaining representative. Union literature was often left scattered around the Stores. Local 1776 representatives did not threaten or carry out injury to persons or damage to property. Entrances and exits to the Stores were in no way obstructed. Phar-Mor repeatedly requested Local 1776 representatives to leave the Stores on the grounds that their activities violated Phar-Mor’s clearly posted “no solicitation/no distribution” policy. Verbal exchanges occurred between Phar-Mor managers and Local 1776 representatives. When Local 1776 activities continued, Phar-Mor called the local police in an attempt to prevent Local 1776 from entering the Stores. The police department told Phar-Mor that it would not act without a court order. Phar-Mor then filed a petition for a preliminary injunction to enjoin Local 1776 from distributing pro-union literature and soliciting Phar-Mor employees in the Stores. Phar-Mor claimed that Local 1776’s activities amounted to harassment and were causing a loss of customer good will.

The matter was scheduled for a hearing on November 29, 1990, before the Honorable Calvin T. Wilson. Prior to the hearing, Judge Wilson held a conference to encourage Phar-Mor and Local 1776 to reach a voluntary settlement, but none was reached. The parties, however, did agree to waive an evidentiary hearing and submit the dispute to the trial court on the basis of the alleged facts. Local 1776 accepted as true all of the facts averred in Phar-Mor’s complaint for purposes of the preliminary injunction issue. Nevertheless, Local 1776 filed preliminary objections to the requested injunctive relief on the grounds that Local 1776 used exclusively peaceful means to educate Phar-Mor employees about the benefits of union membership, and therefore, granting the injunction would contravene the Pennsylvania Labor Anti-Injunction Act, 43 P.S. § 206a et seq. [the “Act”]. Furthermore, Phar-Mor had filed unfair labor practice charges with the National Labor Relations Board regarding Local 1776’s conduct. Local 1776 argued that the court must defer to the board’s judgment since it has exclusive jurisdiction over alleged unfair labor practices. Judge Wilson granted Local 1776’s preliminary objections and dismissed Phar-Mor’s petition for preliminary injunction. This appeal followed.

The standard of review of an order denying or granting a preliminary injunction is well-established. The focus of this Court’s review is to examine the record to determine if reasonable grounds existed for the court’s action below. Coatesville Development Company v. United Food Workers, 374 Pa.Super. 330, 337, 542 A.2d 1380,1384 (1988) (en banc). A preliminary injunction is an extraordinary remedy and in order to sustain a preliminary injunction, it must be shown that the plaintiff has established a clear right to relief sought. Soja v. Factoryville Sportsmen’s Club, 361 Pa.Super. 473, 479, 522 A.2d 1129,1131 (1987). “Only if it is plain that no grounds exist to support the decree or that the rule of law relied upon was misapplied will we interfere with the decision of the chancellor.” Coatesville Development Company v. United Food Workers, 374 Pa.Super. at 337, 542 A.2d at 1384 (citations omitted).

PHK-P, Inc. v. Local 23, 381 Pa.Super. 544, 547, 554 A.2d 519, 520 (1989).

Initially, we note that the present situation falls within the definition of a “labor dispute” under the Act.

The term “labor dispute” includes any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment or concerning employment relations or any other controversy arising out of the respective interests of employer employe, regardless of whether or not the disputants stand in the proximate relation of employer and employe, and regardless of whether or not the employees are on strike with the employer.

43 P.S. § 206c.

An equity court has jurisdiction to grant relief in cases growing out of a labor dispute only where:

(1) unlawful acts have been threatened or committed or will be committed, (2) the employer’s property will sustain substantial and irreparable injury, (3) greater injury will be inflicted upon the employer by the denial of relief than will be inflicted upon labor by granting relief, (4) adequate police protection is unavailable, and (5) there exists no adequate remedy at law.

PHK-P, Inc. v. Local 23, supra, at 550, 554 A.2d at 522; 43 P.S. § 206i(a), (b), (c), (f), and (e). All prerequisites must be met before a court may grant injunctive relief. Giant Eagle Markets Co. v. Local Union No. 23, 425 Pa.Super. 186, 624 A.2d 208 (1993).

I. UNLAWFUL ACTS

We find that all the prerequisites for granting injunctive relief have not been met. No unlawful acts have been committed and no threats of unlawful activity have been made. Local 1776 did not obstruct entrances or exits to the Stores and people or property were never at risk of injury. Local 1776 members entered the Phar-Mor Stores, passed out literature and conversed with employees about the benefits of union membership. We are satisfied that the mere scattering of union literature around the Stores and the occurrence of verbal exchanges between Phar-Mor managers and Local 1776 representatives does not constitute unlawful activity for purposes of satisfying 43 P.S. § 206i(a).

We also reject Phar-Mor’s contention that Local 1776’s disregard for Phar-Mor’s posted “no solicitation/no distribution” policy constitutes an unlawful act of criminal trespass for purposes of fulfilling the statutory prerequisite. The Stores were open to the public and Local 1776 created no breach of the peace upon entering. With the exception of the few moments when Local 1776 representatives would engage an employee in conversation, Phar-Mor’s ability to transact business was in no way affected. We will not allow Phar-Mor to circumvent the Act by alleging “trespass” when Local 1776 acted peacefully, without threat or injury to people or property, and with the purpose of educating and informing employees about Union membership.

II. SUBSTANTIAL AND IRREPARABLE INJURY

Case law makes it clear that the Act divests our state courts of jurisdiction to grant injunctive relief except in cases where violence or threat of harm to people or property is imminent. In fact, this Court has held that the Act precludes the granting of injunctive relief in situations where property damage, interference with employer’s business, and the potential for violence were much greater than in the instant case. For example, in Giant Eagle Markets Co. v. Local Union No. 23, supra, a supermarket owner sought injunctive relief against informational union picketers who broke a delivery van’s windshield, flattened a truck’s tires, made a bomb threat, and placed rodent traps in the store’s aisles. We held that the Act divested the trial court of jurisdiction to grant injunctive relief since the evidence was insufficient to establish substantial injury to the employer’s property and there was no evidence that police could not adequately control the situation. Id. at 197, 624 A.2d at 214. Similarly, in Indiana Cobra v. Local No. 23, 406 Pa.Super. 342, 594. A.2d 368 (1991), alloc, denied, 530 Pa. 655, 608 A.2d 30 (1992), this Court held that picketers who formed a human wall, forcing store customers to enter the premises by pushing their way through the wall was insufficient to grant injunctive relief under the Act.

In this case, Phar-Mor claims that it suffered substantial and irreparable injury due to the scattering of Union literature around the Stores and the disruption of business occasioned by harassment by Local 1776 representatives. The scattering of Union literature around the Stores, at most, constitutes an inconvenient litter problem for Phar-Mor and does not rise to the level of a substantial and irreparable injury. As to Phar-Mor’s allegations of “harassment,” the trial court stated, “testimony tended to show that employees and customers have been free to enter and exit plaintiffs premises without threats of coercion or intimidation, and sales have been transacted without interruption.” Trial court opinion at 7. Under these circumstances, Phar-Mor has failed to show how it will incur substantial and irreparable injury unless injunctive relief is granted.

III. BALANCE OF INJURIES

Phar-Mor has also failed to show, pursuant to 43 P.S. § 206i(c), how greater injury will be inflicted on it by the denial of relief than will be inflicted upon Local 1776 by the granting of relief. A denial of injunctive relief would require that Phar-Mor suffer the inconveniences occasioned by solicitation and distribution of literature within the Stores by Local 1776. Enjoining Local 1776’s activities in this case would prejudice its right under the Act to engage in collective action to protect and further employee economic interests. 43 P.S. § 206b. Thus, the harm Phar-Mor will suffer by the denial of injunctive relief does not outweigh the harm that will result if Local 1776 is precluded from peacefully dispensing union information to Phar-Mor employees.

IY. INADEQUATE POLICE PROTECTION

Phar-Mor’s claim that the local police’s refusal to prevent Local 1776 from “trespassing” on Phar-Mor’s premises without a court order is evidence that the police were unable to provide adequate protection for purposes of fulfilling 43 P.S. § 206i(f) is meritless. This Court has held that police refusal to take action without a court injunction does not constitute evidence that they were unable to furnish adequate protection. Giant Eagle Markets Co., supra; see Solvent Machinery and Filter Systems, Inc. v. Teamsters Local No. 115, 343 Pa.Super. 505, 495 A.2d 579 (1985) (trial court lacked statutory basis to issue injunction where no evidence was offered to support proposition that events taking place were of such magnitude that local police could not handle situation). There is no evidence that the local police were unable to stop Local 1776 activity in the Stores. The police department’s refusal to act without a court order only indicates that it did not believe that intermittent conversation with employees and the scattering of literature around the Stores constituted unlawful behavior. Moreover, even if it was demonstrated that the police were unable to provide adequate protection, the Act would still divest jurisdiction to grant injunctive relief because all of the prerequisites of § 206i have not been satisfied. Giant Eagle Markets Co., supra.

V. AVAILABILITY OF LEGAL REMEDY

Phar-Mor also fails to fulfill a fifth statutory prerequisite for an injunction — the absence of a remedy at law. 43 P.S. § 206i(e). The chancellor found that Phar-Mor has an adequate remedy at law since it has filed a complaint with the National Labor Relations Board alleging unfair labor practices. We agree. Phar-Mor’s complaint alleges that Local 1776 violated § 7 of the National Labor Relations Act by restraining and coercing Phar-Mor employees. “[I]t is settled that where there is an arguable violation of § 7 or § 8 of the-federal act, state courts and labor boards, and indeed federal courts also must defer to the exclusive jurisdiction of the N.L.R.B.” Kerr v. Butler Building Trades Council, AFL-CIO, 447 Pa. 247, 252-53, 288 A.2d 525, 527 (1972).

Finally, the injunctive relief requested by Phar-Mor is specifically prohibited by 43 P.S. § 206f and, therefore, is not a type of relief available under 43 P.S. § 206i(d).

No court of this Commonwealth shall have jurisdiction or power in any case involving or growing out of a labor dispute to issue any restraining order or temporary or permanent injunction which, ... restrains or prohibits any person, association or corporation from doing ... any of the following acts:
Hi H< H* H* *
(f) Organizing themselves, forming, joining or assisting in labor organizations bargaining collectively with an employer by representatives freely chosen and controlled by themselves, or for the purpose of collective bargaining or other mutual aid or protection, or engaging in any concerted activities.
(g) Persuading by lawful means other persons to cease patronizing or contracting with or employing or leaving the employ of any person or persons.
(j) Assembling peaceably to do, or to organize to do, any of the acts heretofore specified, or to promote their lawful interests.
(k) Advising or notifying any person or persons of an intention to do or not to do any of the acts heretofore specified.
(l) Agreeing with other persons to do or not to do any of the acts heretofore specified.
(m) Advising, urging or otherwise causing or inducing, without misrepresentation, fraud or violence, others to do or not to do the acts heretofore specified; and
(n) Doing in concert with others any or all of the acts heretofore specified: Provided, That the specific enumeration in this section of acts which may not be restrained or enjoined shall not be construed to authorize the injunction or restraint of any act or acts not heretofore enjoinable or restrainable.

43 P.S. § 206f. Local 1776 used peaceful, non-destructive means to inform Phar-Mor employees and try to persuade them to join Local 1776’s union. The Act specifically prohibits the restraint of Local 1776’s activities in this case.

Under the Act, the trial court had no jurisdiction to grant injunctive relief. The chancellor, therefore, did not err in dismissing Phar-Mor’s petition for a preliminary injunction.

Order affirmed.

      . Phar-Mor had posted signs which read, "Solicitation and/or Distribution of Literature On Company Premises By Anyone Not Employed By Phar-Mor Is Strictly Prohibited.”

      . The statute defining criminal trespass, 18 Pa.C.S.A. § 3503, provides in pertinent part:
      (b) Defiant trespasser.—
      (1) A person commits an offense if, knowing he is not licensed or privileged to do so, he enters or remains in any place as to which notice against trespass is given by:
      (1) actual communication to the actor; or
      (ii) posting in a manner prescribed by law or reasonably likely to come to the attention of intruders; ...
      (c) Defenses. — It is a defense to prosecution under this section that:
      (2) the premises were at the time open to members of the public and the actor complied with all lawful conditions imposed on access to or remaining in the premises; ...
      18 Pa.S.C.A. §§ 3503(b)(1)(f) & (ii), 3503(c)(2).


author: FORD ELLIOTT, Judge:

text:
    632 A.2d 919
    Edward DEMPSEY and Mary Dempsey, H/W v. PACOR, INC., Eagle-Picher Industries, GAF Corporation, Keene Corporation, Raymark Industries, Inc., Celotex Corporation, Southern Textile Company, J.P. Stevens Company, Garlock, Inc., Owens-Illinois Glass Company, Fibreboard Corporation, and Forty-Eight Insulation, Inc. Appeal of OWENS-ILLINOIS GLASS COMPANY Albert OWENS, Jr., and Gloria R. Owens, H/W v. RAYMARK INDUSTRIES, INC., Owens-Corning Fiberglas Corp., Owens-Illinois, Inc., Celotex Corporation, Eagle-Picher Industries, Inc., Keene Corporation, Nicolet, Inc., Pittsburgh Corning Corporation, Crown Cork & Seal Company, Inc., Armstrong World Industries, Inc., GAF Corporation, Fibreboard Corporation, Southern Textile Corp., H.K. Porter Co. Inc., Pacor, Inc., Garlock, Inc., and Turner & Newall, Ltd. Appeal of OWENS-ILLINOIS INC. Ricardo A. GONZALES and Joan Gonzales, H/W v. PACOR, INC., Eagle-Picher Industries, GAF Corporation, Keene Corporation, Raymark Industries, Inc., Celotex Corporation, Southern Textile Company, J.P. Stevens Company, Garlock, Inc., Owens-Illinois Glass Company, Fibreboard Corporation, and Forty-Eight Insulation, Inc. Appeal of OWENS-ILLINOIS GLASS CO. Howard W. CONGO and Bernice Congo, H/W v. PACOR, INC., Eagle-Picher Industries, GAF Corporation, Keene Corporation, Raymark Industries, Inc., Celotex Corporation, Southern Textile Company, J.P. Stevens Company, Garlock, Inc., Owens-Illinois Glass Company, Fibreboard Corporation, and Forty-Eight Insulation, Inc. Appeal of OWENS-ILLINOIS GLASS CO. Joseph WASSON and Joanne Wasson, H/W V. PACOR, INC., Eagle-Picher Industries, GAF Corporation, Keene Corporation, Raymark Industries, Inc., Celotex Corporation, Southern Textile Company, J.P. Stevens Company, Garlock, Inc., Owens-Illinois Glass Company, Fibreboard Corporation, and Forty-Eight Insulation, Inc. Appeal of FIBREBOARD CORPORATION Howard W. CONGO and Bernice Congo, H/W v. PACOR, INC., Eagle-Picher Industries, GAF Corporation, Keene Corporation, Raymark Industries, Inc., Celotex Corporation, Southern Textile Company, J.P. Stevens Company, Garlock, Inc., Owens-Illinois Glass Company, Fibreboard Corporation, and Forty-Eight Insulation, Inc. Appeal of FIBREBOARD CORPORATION Albert OWENS, Jr., and Gloria R. Owens, H/W v. RAYMARK INDUSTRIES, INC., Owens-Corning Fiberglas Corp., Owens-Illinois, Inc., Celotex Corporation, Eagle-Picher Industries, Inc., Keene Corporation, Nicolet, Inc., Pittsburgh Corning Corporation, Crown Cork & Seal Company, Inc., Armstrong World Industries, Inc., GAF Corporation, Fibreboard Corporation, Southern Textile Corp., H.K. Porter Co., Inc., Pacor, Inc., Garlock, Inc., and Turner & Newall, Ltd. Appeal of FIBREBOARD CORPORATION Ricardo A. GONZALES and Joan Gonzales, H/W v. PACOR, INC., Eagle-Picher Industries, GAF Corporation, Keene Corporation, Raymark Industries, Inc., Celotex Corporation, Southern Textile Company, J.P. Stevens Company, Garlock, Inc., Owens-Illinois Glass Company, Fibreboard Corporation, and Forty-Eight Insulation, Inc. Appeal of FIBREBOARD CORPORATION Edward DEMPSEY and Mary Dempsey, H/W v. PACOR, INC., Eagle-Picher Industries, GAF Corporation, Keene Corporation, Raymark Industries, Inc., Celotex Corporation, Southern Textile Company, J.P. Stevens Company, Garlock, Inc., Owens-Illinois Glass Company, Fibreboard Corporation, and Forty-Eight Insulation, Inc. Appeal of FIBREBOARD CORPORATION Vincent F. NARCISE and Maria Narcise, H/W v. PACOR, INC., Eagle-Picher Industries, GAF Corporation, Keene Corporation, Raymark Industries, Inc., Celotex Corporation, Southern Textile Company, J.P. Stevens Company, Garlock, Inc., Owens-Illinois Glass Company, Fibreboard Corporation, and Forty-Eight Insulation, Inc. Appeal of FIBREBOARD CORPORATION Joseph and Joanne WASSON v. KEENE CORPORATION, Fibreboard Corporation, Owens-Illinois Glass Company, Raymark Industries, Inc., Owens-Corning Fiberglas Corp., Celotex Corporation, Eagle-Picher Industries, Nicolet, Inc., Pittsburgh Corning Corp., Crown Cork & Seal Company, Inc., Armstrong World Industries, Inc., GAF Corporation, Southern Textile Corporation, H.K. Porter Co., Inc., Pacor, Inc., Garlock, Inc., Turner & Newall, Ltd. Appeal of KEENE CORPORATION Edward DEMPSEY and Mary Dempsey v. KEENE CORPORATION, Fibreboard Corporation, Owens-Illinois Glass Company, Raymark Industries, Inc., Owens-Corning Fiberglas Corp., Celotex Corporation, Eagle-Picher Industries, Nicolet, Inc., Pittsburgh Corning Corp., Crown Cork & Seal Company, Inc., Armstrong World Industries, Inc., GAF Corporation, Southern Textile Corporation, H.K. Porter Co., Inc., Pacor, Inc., Garlock, Inc., Turner & Newall, Ltd. Appeal of KEENE CORPORATION Vincent F. and Maria NARCISE v. KEENE CORPORATION, Fibreboard Corporation, Owens-Illinois Glass Company, Raymark Industries, Inc., Owens-Corning Fiberglas Corp., Celotex Corporation, Eagle-Picher Industries, Nicolet, Inc., Pittsburgh Corning Corp., Crown Cork & Seal Company, Inc., Armstrong World Industries, Inc., GAF Corporation, Southern Textile Corporation, H.K. Porter Co., Inc., Pacor, Inc., Garlock, Inc., Turner & Newall, Ltd. Appeal of KEENE CORPORATION Ricardo GONZALES and Joan Gonzales v. KEENE CORPORATION, Fibreboard Corporation, Owens-Illinois Glass Company, Raymark Industries, Inc., Owens-Corning Fiberglas Corp., Celotex Corporation, Eagle-Picher Industries, Nicolet, Inc., Pittsburgh Corning Corp., Crown Cork & Seal Company, Inc., Armstrong World Industries, Inc., GAF Corporation, Southern Textile Corporation, H.K. Porter Co., Inc., Pacor, Inc., Garlock, Inc., Turner & Newall, Ltd. Appeal of KEENE CORP. Albert and Gloria OWENS v. KEENE CORPORATION, Fibreboard Corporation, Owens-Illinois Glass Company, Raymark Industries, Inc., Owens-Coming Fiberglas Corp., Celotex Corporation, Eagle-Picher Industries, Nicolet, Inc., Pittsburgh Corning Corp., Crown Cork & Seal Company, Inc., Armstrong World Industries, Inc., GAF Corporation, Southern Textile Corporation, H.K. Porter Co., Inc., Pacor, Inc., Garlock, Inc., Turner & Newall, Ltd. Appeal of KEENE CORP. Howard CONGO and Bernice Congo, H/W v. KEENE CORPORATION, Fibreboard Corporation, Owens-Illinois Glass Company, Raymark Industries, Inc., Owens-Corning Fiberglas Corp., Celotex Corporation, Eagle-Picher Industries, Nicolet, Inc., Pittsburgh Corning Corp., Crown Cork & Seal Company, Inc., Armstrong World Industries, Inc., GAF Corporation, Southern Textile Corporation, H.K. Porter Co., Inc., Pacor, Inc., Garlock, Inc., Turner & Newall, Ltd. Appeal of KEENE CORP.

      (at 3778).
    (at 3779).
    (at 3780).
    (at 3781).

      (at 3917).
    (at 3918).
    (at 3919).
    (at 3920).

      (at 3921).
    (at 3922).
    (at 4151).
    (at 4152).

      (at 4153).
    (at 4154).
    (at 4155).

      (at 4156).
    Superior Court of Pennsylvania.
    Argued May 25, 1993.
    Filed Oct. 21, 1993.

      Bruce H. Bikin, Philadelphia, for Keene Corp., appellant.
    James F. Hammill, Philadelphia, for Owens-Illinois, appellant.
    Thomas R. Wright, Philadelphia, for Dempsey, appellees.
    Before ROWLEY, President Judge, and CAVANAUGH, and FORD ELLIOTT, JJ.
   FORD ELLIOTT, Judge:

These consolidated appeals are from the judgments entered in favor of the various plaintiffs, according to the jury’s verdict and following the trial court’s order of November 4, 1992, granting defendants’ motions for remittitur and plaintiffs’ motions for delay damages. After careful consideration of this matter, we are compelled to vacate the judgments.

For purposes of order and clarity, we shall briefly identify the various appellees, the plaintiffs at trial.

Dempsey

Edward and Mary Dempsey filed suit alleging injuries as a result of Mr. Dempsey’s exposure to asbestos while working at various jobs from 1943 to his retirement in 1985. Mr. Dempsey smoked cigarettes for 30 years and switched to cigars when he learned cigarettes posed a cancer risk. In 1982, Mr. Dempsey was diagnosed with pleural thickening. The only physical manifestation of the pleural thickening is shortness of breath when climbing stairs. At trial, Dr. Katz testified that Mr. Dempsey’s increased risk of cancer was ]Mh of 1% per year and that his increased risk of mesothelioma was 3% over his lifetime. Mr. Dempsey presented no claims for lost wages or other special damages at trial. Rather, he sought damages solely for the fear and increased risk of contracting cancer. Mrs. Dempsey withdrew her consortium claim at trial.

Owens

Albert Owens, Jr., and his wife, Gloria, also filed suit to recover for injuries allegedly sustained by Mr. Owens as a result of his occupational exposure to asbestos. Dr. Fineman testified that Mr. Owens has suffered from pulmonary asbestosis since 1981. Mr. Owens’ condition causes him shortness of breath. However, Dr. Fineman attributed the shortness of breath to Mr. Owens’ obesity. Since being diagnosed in 1981, Mr. Owens has neither consulted nor been under the treatment of any physician for his condition. Mr. Owens does not take any medication for his condition and has no restrictions placed upon him with respect to physical activity. Mr. Owens made no claims at trial for lost wages or other special damages. Mr. Owens’ claims were confined to fear of cancer and increased risk of cancer. Mrs. Owens withdrew her claim for loss of consortium at trial.

Gonzales

Ricardo and Joan Gonzales filed suit to recover for the injuries Mr. Gonzales allegedly sustained as the result of occupational exposure to asbestos. Mr. Gonzales worked as an electrician in the United States Navy from 1956 to 1960 and at the Philadelphia Naval Shipyard from 1960 to 1987, when he retired. Dr. Katz testified that Mr. Gonzales suffers from pleural thickening and pulmonary asbestosis. Aside from shortness of breath upon physical exertion, Mr. Gonzales’ suffers no other symptoms. Mr. Gonzales neither undergoes treatment nor takes medication for his condition. There are no restrictions on his activity level. As with the other plaintiffs, Mr. Gonzales’ claim is based upon fear of cancer and increased risk of cancer. Mrs. Gonzales’ consortium claim was withdrawn at trial.

Congo

Howard W. Congo and his wife, Bernice, filed suit alleging injuries resulting from Mr. Congo’s occupational exposure to asbestos while working in various shipyards between 1946 and 1981. Mr. Congo was a pack-a-day smoker for about 35 years. Mr. Congo suffers from pleural thickening and asbestosis. His only complaint is shortness of breath after climbing too many flights of stairs. Mr. Congo has never received medical treatment for his condition. His claim is also based upon fear of contracting cancer and an increased risk of contracting cancer. Mrs. Congo withdrew her consortium claim at trial.

Narcise

Vincent and Maria Narcise filed suit based upon Mr. Narcise’s alleged injuries from occupational exposure to asbestos while working as a pipe fitter in the Philadelphia Naval Shipyard. Mr. Narcise suffers from pleural thickening and asbestosis. He has no symptoms other than shortness of breath upon physical exertion. His claim at trial was for fear of, and increased risk of, cancer. Mrs. Narcise’s consortium claim was withdrawn at trial.

Wasson

Joseph and Joanne Wasson filed suit for injuries that Mr. Wasson allegedly sustained through occupational exposure to asbestos. Mr. Wasson worked as an insulator at various shipyards in the Philadelphia area between 1966 and 1981. Mr. Wasson suffers from pleural thickening and asbestosis, characterized only by shortness of breath. Mr. Wasson’s claimed injuries were a fear of cancer and an increased risk of cancer. Mrs. Wasson dropped her consortium claim at trial.

These six groups of plaintiffs had their cases consolidated for a reverse, bifurcated trial against Owens-Illinois, Inc., Keene Corporation, and Fibreboard Corporation, appellants herein. All other defendants had either settled, been dismissed, or were involved in bankruptcy proceedings.

At the close of the damage phase of trial, all appellants moved for a non-suit of appellees’ claims for fear and increased risk of cancer. Those motions, along with motions for directed verdicts on these claims, were denied. Subsequently, the jury returned verdicts in favor of appellees as follows:

Dempsey:
$2,000,000
Owens:
4.000. 000
Gonzales:
2.500.000
Congo:
2.000. 000
Narcise:
2,000,000
Wasson:
2.800.000

At the liability phase of trial the three appellants stipulated to shares of liability but preserved the right to appellate review.

On November 14, 1991, appellants filed motions for post-trial relief. The motions for j.n.o.v., new trial, and remittitur were denied by order dated April 30, 1992. That order was subsequently vacated when appellants’ motion for reconsideration was granted. On October 13,1992, the Honorable Sandra Mazer Moss issued an order granting remittitur but denying appellees’ motions for delay damages. The October 13 order was subsequently vacated when Judge Moss issued her November 4, 1992 order granting both remittitur and delay damages. Judgment was subsequently entered to reflect the molded verdicts and the award of delay damages. These timely appeals followed.

Appellants have raised a plethora of issues for our consideration; however, we need only focus on one issue to resolve these appeals. The core issue which warrants careful consideration is essentially:

Whether the trial court erred in refusing to grant Fibreboard, Owens-Illinois and Keene Corporation a new trial or judgment n.o.v. in light of this court’s decision in Marinari v. Asbestos Corp., Ltd., 417 Pa.Super. 440, 612 A.2d 1021 (1992)?

Because our resolution of this issue mandates that we vacate the judgments, there is no need to address any of the other issues. Thus, we may turn our full attention to the applicability of Marinari to these cases.

The crux of appellants’ argument is that the trial court erred by failing to grant their motions for non-suit and, consequently, allowing the jury to award damages on the basis that the various appellees face an increased risk of, and fear of contracting, cancer in the future. Appellants rely upon Marinari to support their argument.

In Marinari this court formally recognized and adopted the “separate disease rule” as the law of this Commonwealth. The “separate disease rule” affords an individual a cause of action for non-malignant, asbestos-related disease, such as pleural thickening and pulmonary asbestosis, and a later, separate cause of action for malignant lung disease, such as cancer or mesothelioma.

Chief among the court’s concerns when deciding Marinari was the fact that the single action doctrine led to speculative awards. As the Marinari court noted:

The speculative nature of the prediction of future damages — that a person with asbestosis will someday contract cancer — may lead to several inequitable results. First, the plaintiff who does not contract cancer gets a windfall— cancer damages without cancer. Second, and perhaps worse, an asbestosis plaintiff who is unsuccessful in his efforts to recover risk of cancer damages, but later contracts cancer, has the disease but no damages. Third, even plaintiffs who later contract cancer and who have recovered some amount of risk of cancer damages may emerge with an inequitable award, since the jury, cognizant of the less than one hundred percent chance that the plaintiff will contract cancer, likely will have awarded less than one hundred percent damages. Finally, inequitable awards are more likely to result from a future damages action simply because the damages cannot be known. If the disease has advanced — or even come into existence — the actual financial needs of the plaintiff can obviously be more accurately assessed.

Marinari at 451, 612 A.2d at 1026-27, quoting Eagle-Picher Industries, Inc. v. Cox, 481 So.2d 517, 523-24 (Fla.Dist.Ct. App.1985) (citations and footnotes omitted).

Implicit in the Marinari decision is an abolition of recovery of damages for fear of cancer and increased risk of cancer. Analyzing this same language from Marinari, this court has explicitly held that “because of our recent adoption of the ‘two disease rule’ for asbestos actions, claims for risk and fear of cancer no longer form a basis for recovery in asbestos cases where cancer is not present.” Giffear v. Johns-Manville Corp., 429 Pa.Super. 327, 632 A.2d 880 (1993) (Concurring Opinion by Del Sole, J.). See also Higginbotham v. Fibreboard Corp., 630 A.2d 14 (1993); Morrison v. Fibreboard Corp., 630 A.2d 436 (1993); Ottavio v. Fibreboard Corp., 421 Pa.Super. 284, 617 A.2d 1296 (1992).

Thus, it is clear that in light of this court’s decision in Marinari, supra, an asbestos plaintiff may no longer recover for fear of contracting cancer and increased risk of contracting cancer. Presently, all of the husbands/plaintiffs suffered from non-cancerous asbestos conditions: either pleural thickening, or pulmonary asbestosis. Clearly, in light of Marinari, the jury awards based upon fear and increased risk of cancer were improper.

Appellees, however, maintain that Marinari should not be applied retroactively to these cases. We disagree. In fact, in numerous cases this court has already applied Marinari retroactively in factually indistinguishable circumstances. See, e.g., Giffear, supra; Higginbotham, supra; Morrison, supra; Ottavio, supra.

Both Higginbotham and Morrison involve situations identical to that presently confronting us. In each case the husband/plaintiff was diagnosed as suffering from either pleural thickening or pulmonary asbestosis as the result of occupational exposure to asbestos. In each case the condition was asymptomatic. Each plaintiff was permitted to make a case to the jury based upon fear of cancer and increased risk of cancer. Each case was tried prior to Marinari. Also, in each case a Manzi instruction was requested and given to the jury. Following substantial jury awards in the two cases, the defendants appealed to this court. The crux of the appellate arguments in each case was that, in light of Marinari, the judgments had to be vacated as they represented awards for fear and increased risk of cancer. This court agreed and applied Marinari in each case to vacate the judgments. We must now do the same in each of the consolidated cases before us.

There are several fundamental reasons why it was proper for the Higginbotham and Morrison courts to apply Marinari retroactively and why we must now also do the same. First, we note that it is a well-settled principle of law in this Commonwealth that changes in the law are to be applied retroactively to cases pending upon appeal. See Blackwell v. Com. State Ethics Commission, 527 Pa. 172, 589 A.2d 1094 (1991). Appellees acknowledge this general pronouncement of law but contend that retroactive application should only occur when the issue at the center of the change in law has been properly preserved for review. Certainly appellants did not request a Marinari instruction at trial, since that case had not yet been decided. However, appellants did take all necessary steps to preserve the concerns addressed in Marinari.

For example, at trial appellants moved for non-suits and directed verdicts regarding the claims for increased risk and fear of contracting cancer. At the heart of these motions was that insufficient evidence had been presented to substantiate these claims; the claims would be the product of speculation and conjecture. This was precisely the concern which motivated the Marinari decision. Appellants continued to press these concerns via post-trial motions. In fact, Owens-Illinois specifically filed a supplemental memorandum with an amended motion for post-trial relief to bring the Marinari case to the trial court’s attention. Accordingly, our review of the record reveals that implicit in many of the motions raised by appellants was the reasoning behind the Marinari decision. Appellants advanced those concerns at every possible turn in the trial. Thus, appellants are clearly entitled to have Marinari applied in these cases.

Accordingly, we are remanding these cases to the trial court for a new trial as to damages only. This new trial cannot contain any elements of fear or increased risk of cancer.

Judgments vacated. Cases remanded for further proceedings consistent with this memorandum. Jurisdiction relinquished.

      . Manzi v. H.K. Porter Co., 402 Pa.Super. 595, 587 A.2d 778 (1991), reargument denied, 410 Pa.Super. 283, 599 A.2d 992 (1991). Manzi was the forerunner to this court's formal adoption of the two-disease rule in Marinari, supra. At the time of the trial in the present case, the Higginbotham case, and the Morrison case, Manzi was a correct statement of the law. Manzi is very similar to Marinari in that it recognizes that a plaintiff suffering from a non-cancerous, asbestos-related condition who fails to recover damages in an initial action may return to court at a later date if he develops asbestos-related cancer. However, under Manzi, the jury may also be instructed that they can award damages for fear of cancer and increased risk of cancer. This is clearly an erroneous statement of the law in light of Marinari.


text:
    632 A.2d 925
    COMMONWEALTH of Pennsylvania v. Will WHITEHEAD, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 7, 1993.
    Filed Nov. 8, 1993.

      Norris E. Gelman, Philadelphia, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before McEWEN, BECK and FORD ELLIOTT, JJ.
   FORD ELLIOTT, Judge:

If you strike a child, take care that you strike it in anger ... A blow in cold blood neither can nor should be forgiven. George Bernard Shaw, Man and Superman, act IV (1903).

Confronted by thousands of criminal appeals a year, involving matters including rape, assault, and murder, this court is often asked to review cases concerning very disturbing events. As a result, it is sometimes possible to become desensitized to the extremely horrific nature of some of the events underlying these appeals. Occasionally, a case makes its way through this court whose facts are so upsetting that one cannot help but reflect upon the truly depraved nature of the act and shed a tear for the victim. This is one such case and the victim was of the most innocent and vulnerable, a child. A nine-month old baby, to be exact, named Raymond Guess. Raymond was the victim of unusually cruel and senseless acts of violence by appellant, Will Whitehead; and unfortunately no matter how many tears are shed for Raymond, nothing can be done to erase the pain he must have suffered at the hands of appellant on the day he died.

Raymond was the nine-month old son of Tovarria Guess, a nineteen-year-old single mother. Ms. Guess and appellant had met approximately four months prior to the date of the murder. The record indicates that Ms. Guess desired a sexual relationship with appellant and wrote him numerous letters to that end. In a letter dated June 24, 1991, Ms. Guess described, in detail, the sexual liberties she would allow appellant to take with her. The letter also includes a reference to appellant’s torturing Raymond as part of their lovemaking. Several days after this letter, while appellant and Ms. Guess were on a date, appellant fractured Raymond’s leg by twisting it. Appellant also punched Raymond in the chest and poked him in the eyes. At the hospital, Ms. Guess told medical personnel that Raymond was injured when her girlfriend accidentally slipped him through her legs while bouncing him on her lap. Several days after breaking her son’s leg, Ms. Guess wrote to appellant and forgave him.

On July 14, 1991, Ms. Guess again wrote appellant a sexually explicit letter. To paraphrase Ms. Guess’ query, she asked appellant if he would like to spend the weekend with her if she let him body slam her son. (Trial transcript, 6/17/92 at 87.) Tragically for Raymond, appellant accepted Ms. Guess’ offer.

On July 25, 1991, appellant went to Ms. Guess’ home in Philadelphia. No one else was home at the time. Appellant and Ms. Guess sat in the living room as she rocked Raymond to sleep. Ms. Guess then handed Raymond to appellant. Appellant started to rock Raymond but then unleashed a violent attack on the baby. Appellant threw Raymond to the floor, punched him in the legs, picked the baby up, and threw him on the floor again. Appellant repeated this despicable process several times as Ms. Guess watched. Eventually, noticing that Raymond was bleeding from the mouth, Ms. Guess asked appellant to stop. Ignoring Ms. Guess, appellant continued his assault.

Finally, Ms. Guess grabbed Raymond from appellant and took him upstairs and laid him in his crib. At that point, appellant and Ms. Guess engaged in intercourse. After the sexual encounter, Ms. Guess left the room to answer the telephone. Appellant seized the opportunity to continue his assault upon a helpless Raymond.

Appellant removed the sleeping baby from his crib and threw Raymond into the air. Raymond bounced off the bed and fell to the floor. Appellant picked Raymond up and did this a second time. Appellant again picked Raymond up off the floor and beat him in the legs and face. Next, in what can only be described as a barbaric act of violence, appellant took Raymond and, using the baby as a battering ram, slammed Raymond’s head against the bedroom wall four times. When Ms. Guess re-entered the room, appellant tossed Raymond back into his crib. Raymond lay unconscious in his crib, not breathing. Ms. Guess successfully administered CPR, and Raymond resumed breathing. Then, unbelievably, appellant and Ms. Guess decided to resume intercourse.

Soon after this sexual encounter, Ms. Guess’ father returned home. When he found appellant in his house, he called the police to have him removed. After appellant left, Ms. Guess went to check on Raymond. By this time, Willie Guess had left the home again to pick up Tovarria’s mother from work. Ms. Guess attempted to resuscitate Raymond but with no success. When her parents arrived home, Ms. Guess informed them that Raymond had fallen from a chair and stopped breathing. An ambulance was summoned, and Raymond was transported to Children’s Hospital of Philadelphia. Raymond was pronounced dead at 2:41 p.m. on July 25, 1991. The cause of death was blunt force trauma to the head.

That same day both appellant and Tovarria Guess were arrested and charged with murder and criminal conspiracy. Appellant offered a statement to the police detailing the savage beating he had inflicted upon Raymond. Additional charges were filed against appellant, including aggravated assault, simple assault, and recklessly endangering another person. Appellant wisely entered a plea of guilty generally to all charges. A degree of guilt hearing was commenced as to the murder charge. Appellant was found guilty of first degree murder and sentenced to life imprisonment. Appellant was also sentenced to concurrent sentences of three to six years for aggravated assault and two to four years for criminal conspiracy. This appeal followed.

Presently, appellant raises the following issue for our consideration:

Was trial counsel ineffective for failing to urge in written post-trial motions the inconsistency of the verdicts returned as between appellant and his co-defendant in that appellant was convicted of first degree murder and his co-defendant was convicted of third degree murder?

To substantiate a claim of ineffectiveness, appellant’s underlying issue must be of some arguable merit. See Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 815 (1988). Here, there is no merit to the argument that appellant was improperly convicted of first degree murder while his co-defendant, Ms. Guess, was only convicted of third degree murder. Given the facts of this case, such verdicts are not necessarily inconsistent since it was appellant who administered the savage beating that resulted in Raymond’s death. However, even if we were to find the verdicts inconsistent, it is a well-established principle of law that consistency in verdicts is not necessary. See Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932); Commonwealth v. Strand, 464 Pa. 544, 347 A.2d 675 (1975); Commonwealth v. Parrotto, 189 Pa.Super. 415,150 A.2d 396 (1959).

Thus, because appellant’s underlying issue is totally void of any merit, the claim of ineffectiveness must fail. As a result, appellant will thankfully live out the rest of his life incarcerated. As for Raymond, this court can only hope that he has at last found peace. As unpleasant as it may be to read the facts of this case, we have chosen to publish our decision in an effort to spur all of us to vigilance in the protection of children at risk.

Judgment of sentence affirmed. Jurisdiction relinquished.

      . Willie Guess, Tovarria’s father, was not aware of the assault on his grandson but called police because appellant was an unwelcome guest in the house. Willie Guess told police when they arrived that appellant had broken into the house, but after Tovarria informed the police that she invited appellant in, he was promptly released and the police left the residence.

      . Appellant’s counsel attempted to withdraw his appearance due to an inability to allege any meritorious issues and appellant’s contention that counsel has been ineffective. The Petition to Withdraw was denied by a per curiam order of this court dated March 1, 1993.


text:
    632 A.2d 928
    COMMONWEALTH of Pennsylvania, v. Jeffrey D. HILL, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 23, 1993.
    Filed Oct. 29, 1993.
    Jeffrey D. Hill, appellant, Pro Se.
    Kenneth A. Osokow, Asst. Dist. Atty., Williamsport, for Com., appellee.
    Before OLSZEWSKI, POPOVICH and HESTER, JJ.
   OLSZEWSKI, Judge:

Jeffrey Hill appeals the order of Specially Presiding Senior Judge G. Thomas Gates dismissing his petition for Post Conviction Relief without a hearing or the appointment of counsel. At this point we would ordinarily describe the procedural history of Hill’s case, but the maze of Hill’s voluminous pro se filings makes this undertaking nearly impossible. Since Hill offers us no statement of the facts or procedural history of his case, we are guided by Judge Gates’ lengthy description in the opinion accompanying the above order. See appellee’s brief, appendix 1.

This case stems from a fight in which Hill responded to non-deadly force by striking his assailant with either a razor or car keys. In 1986 Hill was charged with aggravated and simple assault, plus various other related charges. Throughout the judicial process Hill went through numerous counsel, and it appears that he has filed malpractice suits against all of them. (Hill has also sued various district attorneys, court-appointed physicians, judges, and his fellow combatant in the underlying assault charge.) Hill was convicted of aggravated assault, which we affirmed on appeal. Commonwealth v. Hill, 382 Pa.Super. 642, 549 A.2d 1339 (1988) (table). Hill has filed two PCRA petitions; the first one was somehow brought and dismissed before his direct appeal. We now consider an appeal of the second dismissed PCRA petition, which Hill brings pro se.

We are mindful that pro se appellants should be given wide latitude in conforming their briefs to the Rules of Appellate Procedure. Hill’s handwritten appellate brief, however, contains little substantive argument; it is mostly pure invective. Hill rants over “the crooked Lycoming County kangaroo court,” where “PATHOLOGICAL LIAR OSOKOW, THE PERJURER” (referring to District Attorney Kenneth Osokow) and “SENILE, BIGOTTED, INCOMPETENT, CORRUPT GATES THE HYPOCRITICAL ASSHOLE” (referring to Judge Gates) “railroaded” and “screwed” him with “deliberate and malicious perjuries.” See appellant’s brief, section mysteriously titled “Judicial Notice” (capitalization in the original). This Court fares little better; Hill addresses the Superior Court as “SANCTIMONIOUS, SELF-RIGHTEOUS CROOKS” and assures us that we are “ALL A BUNCH OF PERJURERS & CRIMINAL, ARROGANT, POMPOUS, HYPOCRITICAL, SANCTIMONIOUS BASTARDS.” Id.

Hill is evidently a tad upset over his encounter with the judicial process. We might be willing to take Hill’s anger and invective in stride, if only he would address some legal issues in his brief. Unfortunately, in venting his spleen, Hill has covered his substantive arguments with bile. We sense that Hill -wishes to raise some issue about pursuing allocatur after losing his Superior Court appeal, and has another argument about after-discovered exculpatory evidence. But we cannot distill enough lucid discourse out of Hill’s raging tirade to understand his allegations of error.

Hill’s brief sets a new standard for scandalous and impertinent material. Setting aside the insults and abuse, Hill’s brief is still so defective as to preclude any kind of appellate review. If our Supreme Court had granted allocatur, on what basis could they have given Hill relief? Why should the affidavit which Hill describes as after-discovered exculpatory evidence entitle him to a new trial? We cannot search a record which is not before us for possible abuses of discretion; it is incumbent upon Hill to bring these matters to our attention, explain them and document them. Even with the most generous allowances for pro se drafting, we should not hesitate to simply quash his appeal. See Commonwealth v. Jones, 329 Pa.Super. 20, 477 A.2d 882 (1984) (appeal of order denying Post Conviction Hearing Act relief properly quashed where brief ignored and seriously undermined the Rules of Appellate Procedure); see generally Pa.R.A.P. 2101 (briefs shall conform with the requirements set forth in the Rules of Appellate Procedure, or appeal may be quashed).

But one event in Hill’s tortured journey through our justice system gives us pause. It appears that in an earlier, unrelated criminal action against Hill, our Supreme Court granted allocatur and reversed this Court’s affirmance of Hill’s conviction, remanding for a new trial. Commonwealth v. Hill, 523 Pa. 270, 566 A.2d 252 (1989). We note that in this earlier case, Hill was represented by counsel (who Hill is now suing for malpractice, naturally, despite counsel’s improbable and heroic victory). But if Hill can take a case all the way to the state supreme court and win, we wonder if his present case before us might not have some merit hidden under its argumentative presentation. We feel Hill deserves a second chance to make his case before this Court.

Also, we sense that Hill’s anger at the judicial system might be due in part to a mistaken presumption that this Court is familiar with the details of his case, but callously ignores what he perceives as injustice. Alas, we have no such knowledge. Hill, as appellant, is responsible for providing us with a statement of his case, an intelligible argument, and a record of the previous proceedings sufficient to support his argument. See Rules of Appellate Procedure 2111 (governing appellate briefs generally), 2117 (statement of the case), and 2151 (by leave of court appellant need not reproduce the entire record, but must provide us “with such copies of the record, or relevant parts thereof, as the court may require”). Because Hill has provided us with none of these necessities, we have only the opinion of Judge Gates and the brief of District Attorney Osokow to inform us — parties which Hill alleges to be corrupt and biased against him. To address Hill’s appeal on its merits, we must understand his side of the story. We invite Hill to reason with us, rather than bludgeon us with epithets.

We therefore use the discretion granted us under Rule 2101 to craft a magnanimous and judicious response to Hill’s rancorous appeal. We strike Hill’s appellate brief for its incredibly gross failure to conform to the Rules of Appellate Procedure, and we give Hill thirty days to file a new, conforming brief. We caution Hill to observe the Rules of Appellate Procedure, especially rules 2101, 2111, 2114 — 2133 which govern briefs and the citations to the record. If Hill will put aside his anger at our judicial system long enough to cogently explain and support his allegations of error, sans invective, we will give him all consideration due a pro se appellant (with a previous victory in our Supreme Court to his credit). If Hill fails to produce such a brief, we will quash his appeal pursuant to Rule 2101. See Commonwealth v. Jones, supra; see also Commonwealth v. Sanford, 299 Pa.Super. 64, 445 A.2d 149 (1982).

Brief stricken, and appellant ordered to file a conforming brief within thirty days, or face quashal. Jurisdiction retained by panel.

POPOVICH, J., concurs in the result.

      . We presume it is unrelated to the present case because Hill gives us no explanation of either case.