author: SPAETH, Judge:

text:
    456 A.2d 1009
    Milton WEISS, Jr., Appellant, v. KEYSTONE MACK SALES, INC.
    Superior Court of Pennsylvania.
    Argued Jan. 7, 1982.
    Filed Feb. 11, 1983.

      John Kerry Weston, Norristown, for appellant.
    Timothy 0. Nolen, Norristown, for appellee.
    Before SPAETH, CAVANAUGH and MONTEMURO, JJ.
   SPAETH, Judge:

This is an appeal from an order entering summary judgment. The action is for damages arising from the purchase and repair of a truck. The lower court held that damages were precluded because the purchase order stated that the truck was being sold “as is—where is.” However, the lower court did not consider conduct by the seller subsequent to the purchase order, thereby leaving unresolved the issues of whether all warranties had been effectively disclaimed, and whether any obligation subsequent to the purchase order had arisen. We therefore reverse.

The pleadings and answers to interrogatories may be summarized as follows.

On November 10, 1978, appellant purchased a 1974 used Mack truck from appellee. The purchase order, which is attached as Exhibit A of the complaint, purported (1) to disclaim all warranties, express or implied; (2) to exclude consequential damages as a remedy; and (3) to contain the entire agreement of the parties. The face of the purchase order contained the following: “THIS TRUCK SOLD ‘AS IS.’ ‘WHERE IS.’ NO WARRANTY OR GUARANTEE IS OFFERED OR IMPLIED.” Immediately beneath this statement appears the following: “Company specifically disclaims any implied warranty of merchantability or fitness for a particular purpose.” Appellant claims, however, that appellee’s salesman made “certain oral and written affirmations of fact, promises and descriptions,” which “became the basis of the bargain.” Complaint ¶ 3. Specifically, appellant claims that the salesman said that the truck was the “best-running truck that Keystone Mack had purchased from [its supplier], and stated unqualifiedly that the truck was in excellent' condition.” Plaintiff’s Answers to Interrogatories II 1(e). Appellant also claims that appellee knew that he needed the truck in his business, and that he relied on appellee’s skill and judgment in selecting a suitable truck for his business. Complaint ¶ 4. Appellee denies that any affirmations were made and asserts that the truck was sold “as is—where is.” Answer ¶ 3.

The parties also disagree over when appellant accepted the truck. Appellee claims that appellant accepted the truck on November 10, 1978. Answer ¶ 5. Appellant claims that when he went to get the truck on November 10, its engine emitted blue smoke, and that he refused to accept it until November 22, when appellee’s salesman told him that the engine had been repaired, , and signed and gave him a handwritten note that stated: “30 day warranty 5%o on the 250 Cummins engine. If a problem develops have the truck brought back to us. We certify that the engine is in excellent running condition.” Complaint II 6; Plaintiff’s Answer to Interrogatories ¶ 2; the handwritten note is attached as Exhibit B of the complaint. Appellant characterizes the handwritten note as “a written confirmation of the warranty on the truck’s engine.” Complaint ¶ 6. Appellee does not deny that the note was signed and given to appellant, but characterizes it as “an opinion that this engine was in excellent running condition,” and denies that this “expression of opinion is a warranty.” Answer ¶ 6.

Appellant states that after he left appellee’s place of business with the truck on November 22, the truck was still emitting blue smoke, and, when he had a mechanic inspect it, a cracked engine block was found. Appellant also states that when he told appellee’s salesman about the cracked block, the salesman instructed him to return the truck, and when he did return the truck on November 24, the salesman told him “that Keystone Mack would ‘make good for’ the engine; that Keystone Mack would obtain another block and rebuild it to replace the one in the truck; and that there would be no cost to [appellant] even if [appellee] had to sue the company they bought the truck from.” Plaintiff’s Answers to Interrogatories ¶ 2. Finally, appellant states that he made repeated inquiries about the status of the truck’s repairs but the truck was not ready until January 31, 1979. Complaint ¶ 8; Plaintiff’s Answers to Interrogatories ¶ 2. On the basis of these allegations, appellant claims $6,137.80 in damages as the “direct and proximate result of appellee’s breach of warranty,” Complaint ¶ 9, this amount being income lost while the truck was being repaired. He substantiates the amount of the claim by attaching to his answers to interrogatories various business receipts purporting to show his income for a comparable period in the previous year. Plaintiff’s Answers to Interrogatories ¶ 12 & Exhibits. Appellee admits that the truck had a cracked engine block, and that pursuant to its salesman’s instructions, appellant returned the truck for repairs. Appellee states, however, that the repairs to the truck were made “as expeditiously as possible, considering the complex nature of the job,” which involved removing and replacing the engine with the cracked block. Answer II8.

As part of its answer, appellee pleaded new matter and a counterclaim. The new matter alleges that appellee made no warranties incident to the sale of the truck, and that “the only warranty offered was the ‘thirty day 5%o warranty on the 250 Cummings Engine.’ ” Answer ¶ 13. The new matter further alleges that appellee was not liable for any consequential damages arising from appellant’s loss of business while the truck was being repaired, and that “[appellant’s] damages, if any, are limited to [appellee’s] payment of 50% of the cost of replacing said engine.” Answer II20. In its counterclaim appellee alleges that the cost of replacing the engine was $6,000, and it claims damages of 50% of this amount, or $3,000.

Rule 1035 of the Pennsylvania Rules of Civil Procedure provides that summary judgment is to be entered only if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Pa.R.C.P. 1035(b). The moving party has the burden of demonstrating that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. In deciding whether the moving party has met this burden, the court must examine the record in the light most favorable to the non-moving party. Giannini v. Carden, 286 Pa.Super. 450, 429 A.2d 24 (1981); Amabile v. Auto Kleen Car Wash, 249 Pa.Super. 240, 376 A.2d 247 (1977); Schacter v. Albert, 212 Pa.Super. 58, 239 A.2d 841 (1968). The court’s responsibility is to determine whether a genuine issue of material fact exists; the court may not resolve such an issue. Moreover, the court should not enter summary judgment unless the case is free from doubt. Tom Morello Construction Company, Inc. v. Bridgeport Federal Savings & Loan Association, 280 Pa.Super. 329, 421 A.2d 747 (1980); Amabile v. Auto Kleen Car Wash, supra; McFadden v. American Oil Co., 215 Pa.Super. 44, 257 A.2d 283 (1969).

Applying these principles here, we have concluded that this is not a case for summary judgment. In finding that appellee met the requirements of Rule 1035, the lower court limited its analysis to the terms of the purchase order. It concluded that appellee’s purchase order had effectively disclaimed implied warranties of merchantability and fitness for a particular purpose under 13 Pa.C.S.A. § 2316(b) because the purchase order contained the phrase “as is— where is,” and because a warranty disclaimer, including the term “merchantability,” appeared on the purchase order. The lower court did not consider whether appellee had effectively disclaimed express warranties under 13 Pa.C. S.A. § 2316(a), which provides that in construing words claimed to limit warranties, “words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty shall be construed wherever reasonable as consistent with each other.” Since the lower court did not consider 13 Pa.C.S.A. § 2316(a), neither did it consider whether, or to what extent, the parol evidence rule would limit appellant’s ability to prove appellee’s alleged oral representations concerning the truck, both before and after the purchase order was signed. 13 Pa.C. S.A. § 2202.

Also, the lower court confined its view of the case to the purchase order. The record suggests, however, that the events on which appellant’s claim is based did not end with the signing of the purchase order. As we have discussed, when appellant complained that the engine was emitting smoke, appellee undertook to repair it, and gave appellant a “30 day warranty 5%o” on the engine, and “certified]” that the engine was “in excellent running condition.” Then, when it was discovered that the engine in fact had a cracked block, appellee replaced it, taking some sixty-seven days to do so. It is by no means clear—and the lower court did not consider—whether appellee’s conduct subsequent to the execution of the purchase order resulted in a new contractual or warranty obligation coming into being, either as a proper modification of the purchase order, or as an obligation created later than and distinct from the purchase order.

In making these comments, we do not intimate any opinion, for the record is not sufficient to support an opinion, regarding the legal effect, either of the disclaimer of warranties in the purchase order, or of appellee’s conduct subsequent to the purchase order. We do know, however, that appellant has pleaded arid offered proof of lost income during the period appellee was repairing his truck. See Jones & McKnight Corp. v. Birdsboro Corp., 320 F.Supp. 39, 45 (N.D.Ill.1970). Whether he is entitled to relief will depend, it would appear, upon the effectiveness of the engine “warranty” and on appellant’s ability to prove that appellee knew of his special needs when it undertook to repair the truck. See 13 Pa.C.S.A. § 2715. See also R.I. Lampus Co. v. Neville Cement Products Corp., 474 Pa. 199, 378 A.2d 288 (1977); Frank B. Bozzo, Inc. v. Electric Weld Division of the Fort Pitt Bridge Division of Spang Industries, Inc., 283 Pa.Super. 35, 423 A.2d 702 (1980).

Finally, we are not sure whether the lower court considered appellee’s counterclaim for half the cost of replacing the engine. Appellee’s motion for summary judgment appears to ask for judgment on the counterclaim, for it states that appellant admits that the engine was replaced, and pleads the “5%o warranty” as “providing that [appellant] and [appellee] would equally divide the cost of repair” to the engine. Motion for Summary Judgment, ¶ s. 9-10. However, the prayer of the motion is only that “judgment be entered in [appellee’s] favor and against [appellant] and dismiss the Complaint;” there is no reference in the prayer to the counterclaim. The lower court’s order simply provides that the motion for summary judgment “is hereby granted, and [appellant’s] Complaint is dismissed.” Neither in its order nor its subsequent opinion in support of the order does the lower court refer to the counterclaim.

The order of the lower court is reversed.


source: Caselaw Access Project

author: CIRILLO, Judge:

license: Public Domain

text:
    456 A.2d 1013
    Ruth A. CARRENDER and Walter A. Carrender, her husband v. Paul FITTERER and Linda Fitterer, his wife, Appellants.
    Superior Court of Pennsylvania.
    Argued May 11, 1982.
    Filed Feb. 11, 1983.
    Petition for Allowance of Appeal Denied June 3, 1983.

      James W. Evans, Harrisburg, for appellants.
    Herbert A. Schaffner, Harrisburg, for appellees.
    Before CAVANAUGH, ClRILLO and HOFFMAN, JJ.
   CIRILLO, Judge:

Appellee, Ruth Carrender, was injured when she slipped and fell on á patch of ice in appellants’ parking lot. She and her husband, Walter, filed an action in trespass alleging that appellants’ negligence in failing to clear their parking lot of ice was a substantial factor in causing her injuries. After a trial, a jury returned a verdict in appellees’ favor awarding Ruth Carrender $70,000.00, and her husband $2,500.00 for loss of consortium. The jury found that Ruth Carrender was thirty-five percent contributorily negligent, however, and the verdicts were molded to $45,000.00 and $1,626.00 in accordance with the provisions of the Comparative Negligence Act.

Appellants contend that the lower coprt erred in denying their motion for a judgment n.o.v. We disagree and therefore affirm. Initially, we note that in considering a motion for a judgment n.o.v., the evidence, together with all reasonable inferences that may be drawn therefrom, must be considered in the light most favorable to the verdict winner. Dawejko v. Jorgensen Steel Co., 290 Pa.Super. 15, 434 A.2d 106 (1981); Fahringer v. Rinehimer, 283 Pa.Super. 93, 423 A.2d 731 (1980). Viewing the evidence in accordance with this standard, the facts are as follows:

At the time of the accident, Ruth Carrender was a patient and business invitee of appellants Paul and Linda Fitterer, who owned the Fitterer Chiropractic Clinic. She was also an amputee and wore a prosthesis consisting of an artificial lower leg. On January 16, 1979, she drove from her home to the Fitterer Clinic and parked beside another vehicle in a lot provided for clinic patients. The area between these two cars was covered with a sheet of ice, but the rest of the parking lot surface was clear.

Mrs. Carrender got out of her car and entered the clinic, some thirty-six feet away, without incident. After receiving treatment in the clinic, she retraced her steps to her car. As she walked toward the front of her vehicle, she held onto the car on her left to steady herself. When she reached the door of her car, she opened her pocketbook to get her keys. At this point, she slipped on the ice and sustained a fracture of the left hip.

The appellants’ first contention is that the lower court erred in refusing to charge the jury on the defense of assumption of the risk. While the court below did charge the jury on contributory negligence, appellants aver that an additional instruction on assumption of risk was necessary because Ruth Carrender assumed the risk of injury when she stepped on the ice, knowing that it presented a danger to her. It is axiomatic that in reviewing the adequacy of a jury charge, we must examine the instructions in their entirety to determine if prejudicial error was committed. McCay v. Philadelphia Electric Co., 447 Pa. 490, 291 A.2d 759 (1972). The primary duty of a trial judge in charging a jury is to clarify the issues so that the jury is able to comprehend the questions they are to decide. Crotty v. Reading Industries, Inc., 237 Pa.Super. 1, 345 A.2d 259 (1975). We find that the jury instructions were adequate in the instant case, because the evidence did not show that Ruth Carrender assumed the risk.

The distinction between conduct that shows consent to assume a risk and conduct amounting to contributory negligence is not always an easy one to make. Contributory negligence is commonly defined as “conduct on the part of a plaintiff which falls below the standard to which he should conform for his own protection, and which is a legally contributing cause, cooperating with the negligence of the defendant, in bringing about the plaintiffs harm.” Thompson v. Goldman, 382 Pa. 277, 280, 114 A.2d 160 (1955); Restatement (Second) of Torts § 463 (1965).

The Restatement, however, discusses four different definitions that courts have assigned to assumption of risk. In its simplest form, assumption of risk has been held to mean that a plaintiff has given his express consent to relieve a defendant of an obligation to exercise care for his protection. A second and closely related meaning is that the plaintiff has voluntarily entered into a relationship with a defendant which he knows to involve risk, from which his consent to assume the risk may be implied. In a third type of situation, the plaintiff, aware of the risk created by the negligence of the defendant, voluntarily proceeds or continues to encounter it. To be distinguished from these three situations is the fourth, in which a plaintiff’s conduct in voluntarily encountering a known risk is unreasonable. Restatement (Second) of Torts, § 496A, Comment c, 1-4 (1965).

It is evident that the fourth definition of assumption of risk is synonymous with the definition of contributory negligence previously given, in that under both interpretations, a plaintiff is held responsible for the consequences of his actions because his behavior was unreasonable under the circumstances. Where a plaintiff has acted unreasonably in encountering a risk of which he is aware, or should be aware, however, he is not considered to have assumed that risk under Pennsylvania law. Instead, his behavior is deemed to have been contributorily negligent. See, Joyce v. Quinn, 204 Pa.Super. 580, 205 A.2d 611 (1964). See also, McIntyre v. Cusick, 247 Pa.Super. 354, 359, 372 A.2d 864 (1977). In cases involving this course of conduct on the part of a plaintiff, the determination of his right to recover damages has always been resolved by determining whether he was contributorily negligent, and not whether he assumed the risk. See, Atkins v. Urban Redevelopment Authority, 263 Pa.Super. 37, 396 A.2d 1364, affirmed, 489 Pa. 344, 414 A.2d 100 (1980) (plaintiff failed to examine staircase before walking on it); Knapp v. Bradford, 432 Pa. 172, 247 A.2d 575 (1968) (plaintiff failed to examine curb before stepping on it); Kubacki v. Citizen’s Water Co., 403 Pa. 472, 170 A.2d 349 (1961) (plaintiff walked on icy parking lot); Sheridan v. Horn & Hardart, 366 Pa. 485, 77 A.2d 362 (1951) (plaintiff walked on freshly-mopped floor); Weitz v. Baurkot, 267 Pa.Super. 471, 406 A.2d 1138 (1979) (plaintiff fell in hole despite awareness of its presence); McMillan v. Mount Laurel Racing, 240 Pa.Super. 248, 367 A.2d 1106 (1976) (plaintiff walked on trash-strewn floor); Downs v. Cammarano, 207 Pa.Super. 478, 218 A.2d 604 (1966) (plaintiff walked on icy steps).

Thus, under the facts of the instant case, it is clear that a jury instruction on assumption of risk would have been both unnecessary and improper. The only issue for the jury in regard to Ruth Carrender’s conduct was whether she acted reasonably in walking on the ice in light of her knowledge that this action posed a potential danger to her. Therefore, the lower court did not err when it refused to charge the jury on assumption of risk.

The appellants’ second contention is that the lower court erred in refusing to charge the jury on the Hills and Ridges Doctrine. We disagree. The essence of the Hills and Ridges Doctrine is that no liability is created by a general slippery condition on sidewalks. In order to recover for injuries sustained in a fall on the ice, a plaintiff must prove that there were dangerous conditions due to ridges or elevations which were created by a defendant’s antecedent negligence, or which were allowed to remain for an unreasonable length of time. Wilson v. Howard Johnson Restaurant, 421 Pa. 455, 219 A.2d 676 (1966). It is clear that the Hills and Ridges Doctrine had no application in the instant case. The evidence presented at the trial established that Ruth Carrender slipped on an isolated patch of ice and that no general slippery condition was evident on the day of the accident. Therefore, the lower court did not commit error by refusing to charge the jury on the Hills and Ridges Doctrine. Tonic v. Apex Garages, Inc., 442 Pa. 373, 275 A.2d 296 (1971); Bacsick v. Barnes, 234 Pa.Super. 616, 341 A.2d 157 (1975).

Appellants’ final contention is that they were prejudiced by the lower court’s refusal to accept points three and four, which they submitted for charge on the duty owed to a business invitee. We disagree. It is axiomatic that in reviewing the adequacy of a jury charge, the charge must be considered in its entirety. The primary function of a charge is to clarify the issues so that the jury may comprehend the questions they are to decide. Crotty, supra. Moreover, this court will not reverse on the basis that a portion of a jury charge was misleading if, taken in its entirety, the charge correctly stated the applicable law. McAvenue v. Bryn Mawr Hospital, 245 Pa.Super. 507, 369 A.2d 743 (1976).

Reviewing the entire charge in the instant case, we find that the lower court fully instructed the jury on the legal doctrines contained in appellants’ point number three, which was taken from the Restatement (Second) of Torts § 343A (1965). In addition, the lower court adequately covered proposed point number four when it instructed the jury:

[T]he defendant says, you, Ruth Carrender, were negligent yourself in the way you handled yourself that day. You should not have parked next to the ice or if you did park there and didn’t see it, if you found the ice was there, if you did park next to it and saw and knowing your own physical situation, you should not have ventured across.

It is clear from a reading of the entire charge in the instant case that the jury was fully informed on all aspects of the legal duties of the parties, and that the legal premises set forth in appellants’ proposed points for charge were adequately covered. Therefore, the lower court’s failure to read points three and four to the jury did not prejudice the appellants.

Judgment affirmed.

      . Act of April 28, 1978, P.L. 202, No. 53, § 10(89), as amended, Act of October 5, 1980, P.L. 693, No. 142, § 222(a), 42 Pa.C.S.A. § 7102(a) provides:
      Comparative negligence
      (a) General rule—In all actions brought to recover damages for negligence resulting in death or injury to person or property, the fact that a plaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff or his legal representative where such negligence was not greater than the causal negligence of the defendant or defendants against whom recovery is sought, but any damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff.

      . Due to our finding that assumption of risk was not involved in the instant case, we need not determine the significance that proof of that defense would have in an action governed by the Comparative Negligence Act.

      . A plaintiff would be held to have assumed the risk under this definition where he attended a baseball game, knowing that the ball park management did not provide screened-in bleachers to protect him from fly balls. See, e.g., Schentzel v. Philadelphia National League Club, 173 Pa.Super. 179, 96 A.2d 181 (1953).

      . A plaintiff would be considered to have assumed the risk where he used a product, knowing it was defective, and was aware of the potential harm he could suffer as a result of the defect. See, e.g., Phillips v. Allen, 427 F.Supp. 876 (W.D.Pa.1977); Ferraro v. Ford Motor Co., 423 Pa. 324, 223 A.2d 746 (1966).

      . In Pritchard v. Liggett & Myers Tobacco Co., 350 F.2d 479 (3d Cir.1965), the Court of Appeals for the Third Circuit, interpreting Pennsylvania law, divided assumption of risk into two categories:
      Assumption of risk in its primary and strict sense involves voluntary exposure to an obvious or known danger which negates liability. Under this concept, recovery is barred because the plaintiff is assumed to have relieved the defendant of any duty to protect him... Assumption of risk in its secondary sense is ordinarily synonymous with contributory negligence and involves a failure to exercise reasonable care for one’s own safety. Under this concept, recovery is barred because of plaintiff's departure from the standard of reasonable conduct____

        Id. at 484 (citations omitted). See also, 35 A.L.R.3d 230, 268 (1971).

      . The appellants’ proposed charge number four, taken from Restatement (Second) of Torts, § 343A(1), comment b (1965), consisted of the following:
      The word ‘known’ denotes not only knowledge of the existence of the condition or activity itself, but also appreciation of the danger it involves. Thus the condition or activity must not only be known to exist, but it must also be recognized that it is dangerous and the probability and gravity of the threatened harm must be appreciated. ‘Obvious’ means that both the condition and the risk are apparent and would be recognized by a reasonable man, in the position of the visitor, exercising ordinary perception, intelligence and judgment.


author: CERCONE, President Judge:

text:
    456 A.2d 1017
    COMMONWEALTH of Pennsylvania, Appellant, v. Willie Lee BRIDGEMAN.
    Superior Court of Pennsylvania.
    Submitted Jan. 5, 1981.
    Filed Feb. 18, 1983.

      Steven Goldblatt, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Victor J. DiNubile, Jr., Philadelphia, for appellee.
    Before CERCONE, President Judge, and WIEAND and HOFFMAN, JJ.
   CERCONE, President Judge:

This is an appeal by the Commonwealth from a suppression order entered by the court below. The Commonwealth has averred that the suppression order substantially handicaps its case against appellee on burglary charges, and has asserted that because of this blow to its case that this Court has jurisdiction to hear its appeal. We find that the appeal is properly before us and proceed to its merits.

The procedural history of the case, brief as it is, is as follows. Appellee was arrested in the early morning hours of October 2, 1979 in the East Falls section of Philadelphia by Officer Jeffrey Miller, with the assistance of another officer. At the time of his arrest appellee was the passenger in a vehicle driven by one Robert Lawrence. Appellee was charged with burglary, as well as with, theft, unauthorized use of an automobile and criminal conspiracy. Appellee was duly arraigned, a preliminary hearing held and a timely motion to suppress the evidence filed. The suppression motion was heard January 28, 1980. At the close of the hearing the suppression court made findings of fact and conclusions of law pursuant to Rule 323(i) of the Pennsylvania Rules of Criminal Procedure. Those findings of fact and conclusions of law read in their entirety:

FINDINGS OF FACT
No. 1. On October second 1979 about 3:50 a.m. Officer Jeffery Miller, Badge No. 7080, was proceeding west on Warden Drive, Philadelphia, while conducting patrol duty.
No. 2. While driving he observed a copper colored station wagon approximately of the year 1977-1978 coming down a driveway in the 3400 block of Warden Drive.
No. 3. The station wagon was occupied by two Negro males.
No. 4. The area was well lighted.
No. 5. Officer Miller grew up from the East Falls section of Philadelphia. He has done patrol duty in this sector for at least two years and he drives past this block almost every day.
No. 6. Officer Miller testified that to his knowledge there were not any Black families living in the 3400 block of Warden Drive.
No. 7. Officer Miller did not testify that he, personally, knew that there were not any Black families in the 3400 block of Warden Drive.
No. 8. He has seen this station wagon in the East Falls section and in the driveway of 3423 Warden Drive on prior occasions.
No. 9. As the station wagon left the driveway, Officer Miller followed it and stopped it at Vaux Street and Midvale Avenue in Philadelphia.
No. 10. He called the license number into the police radio and also called for backup.
No. 11. Officer Miller approached the station wagon and asked the driver, Robert Lawrence, for a driver’s license and owner’s card. Defendant Willie L. Bridgeman was seated in the front passenger seat.
No. 12. The driver and the Defendant Willie L. Bridgeman did not produce any owner’s card.
No. 13. While standing in the street by the station wagon and questioning the two occupants of the vehicle, Officer Miller observed articles in the vehicle, that is, a TV set and clock in the rear seat and a clear glass jar containing quarters in the front seat.
No. 14. Officer Miller then asked the two occupants to step out of the vehicle.
No. 15. Defendant Willie L. Bridgeman and the driver, Robert Lawrence, were placed in the patrol wagon and transported to 3423 Warden Drive.
No. 16. The front screen on the porch of 3423 Warden Drive was cut, and the occupant of the residence, David Kurtz, was awakened.
No. 17. David Kurtz said the station wagon and the articles found inside of it were his.
CONCLUSIONS OF LAW
No. 1. Stopping an automobile and detaining its occupants constitutes a seizure under the Fourth Amendment of the United States Constitution and must be reasonable.
No. 2. Stopping an automobile and detaining its occupants for the purpose of checking the driver’s license and the vehicle registration is reasonable under the Fourteenth Amendment where there is articulatable [sic] and reasonable suspicion that either the vehicle or its occupants are subject to seizure for violation of the law.
No. 3. In this case there was not sufficient evidence to establish a reasonable suspicion that the occupants of the station wagon had committed a violation of law.

The instant case quite clearly falls within the purview of the Fourth and Fourteenth Amendments and their proscription against unreasonable searches and seizures. U.S. Constamend. IV, amend. XIV. See Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949). Cf., Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Moreover, because the case initially involved the investigatory stop of the occupants of a moving automobile, it implicates the well-known case of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and its progeny, as well as the holdings of the Pennsylvania Supreme Court in Commonwealth v. Murray, 460 Pa. 53, 331 A.2d 414 (1975) and Commonwealth v. Fassett, 496 Pa. 529, 437 A.2d 1166 (1981). Cf., Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). And see, Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed. 612 (1972).

In Commonwealth v. Murray, supra, Justice Nix, writing for six of the seven justices (Justice Pomeroy concurred in the result) set out the applicable law thusly:

Where individuals proceeding in an automobile are forced to interrupt their travel at police direction, such action clearly amounts to a seizure of those individuals and the basis for that stop must meet Fourth Amendment standards. Traditionally, we have held that a seizure is not unreasonable under the Fourth Amendment where probable cause exists at the time of that seizure... The decisions of the United States Supreme Court and this Court have defined probable cause as being present where the facts and circumstances within the knowledge of the arresting officer and of which he has reasonable trustworthy information were sufficient to warrant a man of reasonable caution and belief to conclude that the suspect had committed or is committing a crime...
The United States Supreme Court in [Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ] and in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), has suggested that even in the absence of probable cause there may be, under certain circumstances, justification, for a limited intrusion upon the privacy of an individual... However, these decisions have made it clear that to justify the intrusion the police officer must be able to point to specific and articulable facts which taken together with rational inferences from those facts reasonably warranted the intrusion... Thus, it is also clear that an investigative stop of a moving vehicle to be valid must be based upon objective facts creating a reasonable suspicion that the detained motorist is presently involved in criminal activity.

Id. 460 Pa. at 60-61, 331 A.2d at 417-418.

The “specific and articulable facts” on which Officer Miller made his decision to stop the automobile in which appellant was riding are these: At 4:00 a.m., an officer who had grown up in the neighborhood and had patrolled the area for the past two years, observed two black males pulling a station wagon out of a driveway. The officer had often seen the car both parked in that driveway and being driven in the neighborhood. He was also aware that to the best of his knowledge, no blacks lived in that house or even on that block. The lateness of the hour coupled with the officer’s knowledge of the people comprising the neighborhood raised the reasonable suspicion of unauthorized use. The officer was thus justified to take the limited step of stopping the car to check license and registration to confirm pr deny that reasonable suspicion.

After the appropriate and limited stop, the subsequent steps of the search cannot seriously be challenged. Neither the driver nor appellant could produce an owner’s card or a reasonable explanation. A TV set, clock, and large, jar of quarters were sitting on the car seats in plain view through the car windows. The officer was thus justified to ask -the occupants out of the car to investigate further whether the goods were stolen. See Commonwealth v. LeSeuer, 252 Pa.Superior Ct. 498, 382 A.2d 127 (1977) (examining stereo equipment during stop); Commonwealth v. Ellis, 233 Pa.Superior Ct. 169, 335 A.2d 512 (1975) (taking adding machine during stop). Upon seeing other household goods piled in the car, combined with the earlier circumstances, the officer could properly take appellant and the driver back to the house where he had first seen the car. When he saw the porch screen cut, and heard the homeowner’s report that the goods similar in nature to those found in the car were missing from his home the officer had probable cause for arrest. Accordingly, because the initial stop and subsequent search were justified, we reverse the lower court’s suppression order and remand the case for trial.

Reversed and remanded for proceedings not inconsistent herewith. Jurisdiction relinquished.

      . 18 Pa.C.S. § 3502.

      . The Commonwealth’s brief contains the following statement of jurisdiction:
      The jurisdiction of this Court is invoked pursuant to the Judicial Code, P.L. 586, No. 142, § 2, 42 Pa.C.S.A. § 742.

       The lower court order granting defendant’s motion to suppress the proceeds of the burglary with which defendant is charged will substantially handicap the Commonwealth in its prosecution of defendant. Therefore, this Commonwealth appeal is properly before the Court. Commonwealth v. Wrona, 442 Pa. 201 [275 A.2d 78] (1971); Commonwealth v. Bosurgi, 411 Pa. 56 [190 A.2d 304, cert. denied 375 U.S. 910, 84 S.Ct. 204, 11 L.Ed.2d 149] (1963); Commonwealth v. Martz, 259 Pa.Superior Ct. 201 [393 A.2d 787] (1978).

      . 18 Pa.C.S. §§ 3921 (theft), 3928 (unauthorized use of an automobile), 903 criminal conspiracy.

      . See, e.g. Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969); Commonwealth v. Jones, 474 Pa. 364, 378 A.2d 835, cert. denied, 435 U.S. 947, 98 S.Ct. 1533, 55 L.Ed.2d 546 (1977); Commonwealth v. Vassiljev, 218 Pa.Superior Ct. 215, 275 A.2d 852, (1971); Commonwealth v. King, 247 Pa.Superior Ct. 443, 372 A.2d 908 (1977).

      . In Fassett, supra the Pennsylvania Supreme Court reversed this Court’s earlier ruling in the same case, reported under the same name at 260 Pa. Superior Ct. 323, 394 A.2d 573 (1978), on grounds not presented to this Court when the appeal was before us. The Supreme Court’s determination of the case turned on the illegal seizure of appellant in violation of his Fourth Amendment rights, and his trial counsel's ineffectiveness in failing to move to suppress the evidence gleaned from the illegal seizure. See Commonwealth v. Fassett, 496 Pa. 529, 532 n. 2, 437 A.2d 1166, 1168 n. 2 (1981).

      . In Commonwealth v. Fassett, 496 Pa. 529, 532, 437 A.2d 1166, 1168 (1981) Justice Flaherty, writing for a unanimous Supreme Court, had occasion to quote this exact passage from Justice Nix’s opinion in Commonwealth v. Murray, supra.


author: CERCONE, President Judge: McEWEN, Judge,

text:
    456 A.2d 1021
    WILLIAM HARTER AND CLEAVER BROOKS, A DIVISION OF AQUA-CHEM, INC., Appellants, v. Miriam A. YEAGLEY, Executrix of the Estate of Frederick A. Yeagley, Deceased, and Metropolitan Edison Company, a Corporation, And the Unit Crane and Shovel Corporation, A Corporation.
    Superior Court of Pennsylvania.
    Argued Nov. 17, 1981.
    Filed Feb. 18, 1983.
    Petition for Allowance of Appeal Denied Dec. 12, 1983 & Jan. 16, 1984.

      R. Burke McLemore, Jr., Harrisburg, for appellants.
    Robert I. Cottom, Reading, for Yeagley and Metropolitan, appellees.
    Christian S. Erb, Jr., Harrisburg, for The Unit Crane and Shovel, appellee.
    Before CERCONE, President Judge, and McEWEN and HOFFMAN, JJ.
   CERCONE, President Judge:

Appellee, Miriam A. Yeagley (hereinafter Yeagley), plaintiff below, brought an action in trespass and assumpsit for injuries to, and the death of, Frederick A. Yeagley, her husband. Yeagley alleges that her husband’s death occurred while he was assisting a crane operator in moving metal boiler shells. It is asserted that the metal outrigger of the crane came into contact with an overhead high voltage transmission line owned by Metropolitan Edison Company (hereinafter Met Ed), which caused Frederick A. Yeagley to be electrocuted. Yeagley, Executrix of the Estate of Frederick A. Yeagley, deceased, instituted suit against Met Ed and the Unit Crane and Shovel Corporation on various theories of negligence, strict liability and breach of warranty.

Met Ed filed a complaint on various theories of liability joining as additional defendants, William Harter (Harter), co-employee of decedent who was operating the crane at the time of the unfortunate occurrence, and Cleaver-Brooks, a division of Aqua-Chem, Inc., the employer of the decedent.

The additional defendants filed preliminary objections in the nature of a demurrer to Met Ed’s complaint; they contended that their joinder as additional defendants was barred by the Pennsylvania Workmen’s Compensation Act. Specifically, Cleaver-Brooks, decedent’s employer, objected that its joinder, even for purposes of enabling a court and jury to affix the comparative negligence of all parties, was barred by § 303(b) of the Workmen’s Compensation Act, Act of December 5, 1974, P.L. 782, No. 263 (77 P.S. 481(b)). Additional defendant, William Harter, objected to his joinder as co-employee of decedent Yeagley, both on the grounds of Section 303(b) of the Workmen’s Compensation Act and Section 205, of the same Act, which was added August 24, 1963, P.L. 1175, No. 496 § 1 (77 P.S. § 72).

The lower court rejected the contentions of the additional defendants and dismissed their preliminary objections. While the court recognized that an employer may not be joined as a defendant by reason of the 1974 amendment to the Workmen’s Compensation Act, it concluded that the employer and co-employee could be joined for the limited purpose of permitting the jury to determine the employer’s percentage of liability, if any, under the Pennsylvania Comparative Negligence Act, Act of July 9, 1976, P.L. 586, No. 142, as amended, 42 Pa.C.S.A. § 7102.

The lower court certified its interlocutory order as involving a controlling question of law to which there is substantial ground for difference of opinion and represented that an immediate appeal from its order may materially advance the ultimate termination of the matter. We entertained the appeal. 42 Pa.C.S.A. § 702(b); Pa.R.A.P., Rule 312.

Appellants in this case, the additional defendants Harter and Cleaver-Brooks, urge us to reverse the order of the lower court and to hold that an employer and/or co-employee may not be joined as additional defendants even for the limited purpose of enabling the jury to determine the comparative negligence of all parties to the transaction. We agree and therefore, reverse and remand.

We are guided in our disposition of this case by Heckendorn v. Consolidated Rail Corp., 293 Pa.Superior Ct. 474, 439 A.2d 674 (1981), application for permission to appeal to the Supreme Court granted, April 27, 1982. That case affirmed the lower court’s denial of joinder of an employer as an additional defendant for purposes of ascertaining the employer’s share of liability under the Comparative Negligence Act since Section 303 of the Workmen’s Compensation Act provided for the employer’s immunity from suit.

In Heckendorn, this Court reviewed Section 303 of the Workmen’s Compensation Act and the interpretation given to it by relevant precedent. Section 303 provides:

(a) The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes, his legal representative, husband or wife, parents, dependents, next of kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined in section 301(c)(1) and (2) or occupational disease as defined in section 108.
(b) In the event injury or death to an employe is caused by a third party, then such employe, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to receive damages by reason thereof, may bring their action at law against such third party, but the employer, his insurance carrier, their servants and agents, employes, representatives acting on their behalf or at their request shall not be liable to a third party for damage, contribution, or indemnity in any action at law, or otherwise, unless liability for such damages, contributions or indemnity shall be expressly provided for in a written contract entered into by the party alleged to be liable prior to the date of the occurrence which gave rise to the action.

This Court held that the Workmen’s Compensation Act precluded any and all causes of action against the employer where the injury was caused by a third party. We wrote:

An employer’s liability for an industrial accident is limited to an amount determined by the Workmen’s Compensation Act. If he assumes that liability, there can be no cause of action against him for negligence; and he cannot be made a party to his employee’s common law action for negligence against a third person.
Heckendorn, supra, 293 Pa.Superior Ct. at 477, 439 A.2d at 675.

Additionally, in Heckendorn, the Court found that this principle of an employer’s immunity was not affected by the enactment of the Comparative Negligence Act of 1978. In Heckendorn as in the instant case, the defendant seeking to join the employer argued that the Comparative Negligence Act impliedly repealed Section 303(b) of the Workmen’s Compensation Act and allowed for joinder for the purposes of apportioning liability. The Comparative Negligence Act provides:

(a) General rule.—In all actions brought to recover damages for negligence resulting in death or injury to person or property, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff or his legal representative where such negligence was not greater than the causal negligence of the defendant or defendants against whom recovery is sought, but any damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff.
(b) Recovery against joint defendant; contribution.— Where recovery is allowed against more than one defendant, each defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of his causal negligence to the amount of causal negligence attributed to all defendants against whom recovery is allowed. The plaintiff may recover the full amount of the allowed recovery from any defendant against whom the plaintiff is not barred from recovery. Any defendant who is so compelled to pay more than his percentage share may seek contribution.

A review of the second paragraph of the statute persuades us, as it did the Heckendorn Court, that recovery is allowed against more than one defendant in a ratio of the amount of his causal negligence to the amount of causal negligence attributed to all defendants against whom recovery is allowed. However, Heckendorn held that an employer is one against whom recovery can neither be sought nor allowed. “A cause of action against the employer has been obliterated.” Heckendorn 293 Pa.Superior Ct. at 480, 439 A.2d at 678. See also Ryden v. Johns-Manville Products, 518 F.Supp. 311, 316 (W.D.Pa.1981) and Hamme v. Dreis and Krump Mfg. Co., 716 F.2d 152 (3rd Cir.1982). Therefore, the Comparative Negligence Act does not permit joinder of an employer as an additional defendant, even for the limited purpose of apportioning liability.

The Heckendorn case was relied upon by this Court in the en banc decision, Kelly v. Carborundum, 307 Pa.Superior Ct. 361, 453 A.2d 624 (1982). Kelly involved the identical issue of the attempted joinder of an employer both as an additional defendant and also as an involuntary plaintiff, for the sole purpose of apportioning liability under the Comparative Negligence Act. The lower court in Kelly refused to permit joinder of the employer by either procedure. This court affirmed the trial court’s order.

Moreover, we direct the defendants and all who are of the opinion that such a resolution is unfair to non-employer defendants, to seek a change in the Workmen’s Compensation Act through the legislature, wherein such power properly lies. As in Kelly, we are required to follow those cases which have held all causes of action against an employer to be obliterated, with the exception of workmen’s compensation benefits.

Finally, the lower court likewise dismissed the preliminary objections of co-employee, William Harter, under the same reasoning as it applied to the employer, that is, that both the Workmen’s Compensation Act and . the Comparative Negligence Act may be interpreted harmoniously to allow for joinder merely to reduce Met Ed’s percentage share of causal negligence. The Workmen’s Compensation Act provides in Section 205, added August 24, 1963, P.L. 1175, No. 496 § 1 (77 P.S. § 72):

If disability or death is compensable under this act, a person shall not be liable to anyone at common law or otherwise, on account of such disability or death for any act or omission occurring while such person was in the same employ as the person disabled or killed, except for intentional wrong.

The second part of Section 303 of the Workmen’s Compensation Act, referred to above, prohibits joinder of a fellow employee as well as of his employer in an action against a third party defendant. Thus, the rationale advanced on behalf of immunity from suit of the employer applies with equal force to immunity of a co-employee.

For all of the above reasons, the order of the lower court is reversed. This case is remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

McEWEN, J., files a dissenting statement.

McEWEN, Judge,

dissenting:

I most respectfully dissent for all of the reasons that I have earlier expressed in a dissent to the majority opinion in the cases of Leonard v. Harris Corp., 290 Pa.Super. 370, 434 A.2d 798 (1981), and Kelly v. Carborundum, 307 Pa.Super. 361, 453 A.2d 624 (1982).

      . Also submitted for our consideration was the amicus curiae brief of the Pennsylvania Trial Lawyers Association.

      . No mention is made in the lower court’s opinion of the joinder of co-employee, William Harter; however, his preliminary objections were also dismissed.

      . “This section, it has been said, manifested a broad legislative intent to bar the joinder of an employer as an additional defendant.” Heckendom 293 Pa.Superior Ct. at 477, 439 A.2d at 675. See cases cited note 6 infra.

      . See also, Leonard v. Harris Corp., 290 Pa.Superior Ct. 370, 434 A.2d 798 (1981), wherein this court affirmed the lower court’s denial of a manufacturer’s petition to join the employer as an additional defendant on the basis of the Workmen’s Compensation Act. This court noted the express language of the Act barring the employer from liability in any manner.

      . For an analysis of a parallel, judicially created change in liability of employers, see The Dual Capacity Doctrine: Piercing the Exclusive Remedy of Worker’s Compensation, 43 U.Pitt.L.Rev. 1013 (1982).

      . Cf. Tsarnas v. Jones & Laughlin Steel Corp., 488 Pa. 513, 412 A.2d 1094 (1980) (Workmen’s Compensation Act provision that third party whose negligence is responsible, in part, for injury suffered by employee protected by Act, may not, in suit brought by employee against him, join employer as additional defendant creates exception to general right to contribution from joint tort-feasors and prevents third party from otherwise seeking contribution or indemnity from employer, even though employer’s own negligence may have been the primary cause of the injury); Bell v. Koppers Co., Inc., 481 Pa. 454, 392 A.2d 1380 (1978) (Section 303 of Workmen’s Compensation Act has ‘obliterated’ the common law cause of action against the employer and foreclosed the adjudication of liability on the part of the employer.) Arnold v. Borbonus, 257 Pa.Superior Ct. 110, 390 A.2d 271 (1978) (Section 303 of Workmen’s Compensation Act manifested a broad legislative intent to bar joinder of an employer as an additional defendant); Hefferin v. Stempkowski, 247 Pa.Superior Ct. 366, 372 A.2d 869 (1977) (Workmen’s Compensation Act bars joinder of employer as additional defendant in action by employee against third party.)

      . See Apple v. Reichert, 443 Pa. 289, 278 A.2d 482 (1971) (Section 205 of Workmen’s Compensation Act protects all co-employees in all situations where negligent conduct of one employee may cause injury to a fellow employee, provided only that the injury in question is one that is compensable under the Act.)


author: BROSKY, Judge: WIEAND, Judge,

text:
    456 A.2d 1025
    Charles H. GEYER, Sr., Appellant, v. Hilda B. GEYER.
    Superior Court of Pennsylvania.
    Argued Dec. 1, 1981.
    Filed Feb. 18, 1983.

      Bonnie D. Menaker, Harrisburg, for appellant.
    Herbert A. Schaffner, Harrisburg, for appellee.
    Before BROSKY, WIEAND and MONTEMURO, JJ.
   BROSKY, Judge:

On December 31, 1980, the court granted Charles H. Geyer, Sr.’s, appellant’s, divorce and retained jurisdiction of the case with respect to attorney’s fees, costs of the proceeding, division of marital property and alimony. ■ The master appointed by the court conducted a hearing and made recommendations with which the parties complied except the recommendation as to alimony. The court entered the following order:

And now, May 19, 1981, after hearing, the plaintiff’s exceptions to the Master’s Report relative to alimony are hereby dismissed and the Defendant is awarded alimony in the amount of Fifty Dollars ($50.00) per week effective January 1, 1981 until such time as Defendant attains her 65th birthday.

On appeal, Mr. Geyer argues that the lower court in determining the right to and amount of alimony, failed to consider the marital property received by Mrs. Geyer as part of the equitable distribution of the couple’s assets. He also contends that the duration of alimony payments ordered by the lower court is in violation of Section 501(c). Finally, Mr. Geyer argues that the alimony awarded is excessive.

We must first consider what is the scope of review of alimony awards. In our recent opinion in Remick v. Remick, 310 Pa.Super. 23, 456 A.2d 163 (1983), we said that under the new Divorce Code, alimony orders should be reviewed only for an abuse of discretion and not broadly, as is the actual decree in divorce (at 29-30). President Judge Cercone explained in Remick, id., at 30, that

While this Court is very much concerned with orders affecting the property rights of the parties to a marriage on the support of the children from that union, our concern in those, essentially monetary judgments is not as paramount as it is with the decision ruling on the status of the marriage or custody of the children.

Because our review of the record and trial court opinion indicates that the court may not have considered all of the circumstances pertinent to an alimony award, we reverse and remand.

In determining the amount of alimony to be paid to Mrs. Geyer, the master considered the following evidence:

1. Mrs. Geyer’s net earnings are approximately three-fifths that of Mr. Geyer.

2. That Mr. Geyer is 61 years of age and that Mrs. Geyer is 60 years of age.

3. That both parties appeared to the master to be in good health without any apparent disabilities. Mr. Geyer confirmed the master’s observation when he stated he was in good health.

4. On retirement at age 62, Mr. Geyer’s income from “Social Security” and his company pension will be between $790 and $923 a month. His retirement benefits would be increased if he would work until he was age 65. He has been employed by his present employer for 39 years.

On retirement at age 65, Mrs. Geyer’s total retirement income from “Social Security” and her employee’s pension would be $571 per month. She has been employed by her present employer for six years, having been a housewife up to that time.

5. The master had before him no evidence of any expectancies or inheritances of the parties.

6. The parties have been married approximately 42 years.

7. Mrs. Geyer being the homemaker for most of the parties’ marriage enabled Mr. Geyer to work full-time at his job, thereby increasing his earning power.

8. During the years the parties lived together both contributed substantially to the marriage, the wife as a homemaker and the husband as the breadwinner and general handyman.

9. Mr. Geyer has had an ongoing relationship with another woman during the time of the marriage.

10. Mr. Geyer will receive approximately twenty-eight thousand dollars ($28,000) from the division of the marital property and Mrs. Geyer will receive approximately twenty-nine thousand five hundred dollars ($29,500).

In reaching his conclusions, the master stated that he considered that the difference in the earning capacity of the parties was based on the fact that the husband was able to work full time over many years at a job thereby working himself up to a good paying position. The wife was, for the most part during the marriage, confined to homemaker duties and thereby unable to develop for herself a career of long standing which, at this point in her life, would culminate in better pay than she now commands.

After heáring Mr. Geyer’s exceptions to the Master’s Report relative to alimony, the exceptions were dismissed, and bn the 19th day of March, 1981, the court awarded alimony in the amount of fifty dollars ($50) per week effective January 1, 1981 until such time as Mrs. Geyer attains her 65th birthday.

Our General Assembly has provided for alimony at 23 P.S. 501 which reads in relevant part as follows:

(a) The court may allow alimony, as it deems reasonable, to either party, only if it finds that the party seeking alimony:
(1) lacks sufficient property, including bút hot limited to any property distributed pursuant to Chapter 4; to provide for his or her reasonable needs; and
(2) is unable to support himself or herself through appropriate employment.
(b) In determining whether alimony is necessary, and in determining the nature, amount, duration, and manner of payment of alimony, the court shall consider all relevant factors including:
(1) The relative earnings and earning capacities of the parties.
(2) The ages, and the physical, mental and emotional conditions of the parties.
(3) The sources of income of both parties including but not limited to medical, retirement, insurance or other benefits.
(4) The expectancies and inheritances of the parties.
(5) The duration of the marriage.
(6) The contribution by one party to the education, training or increased earning power of the other party.
(7) The extent to which it would be inappropriate for a party, because said party will be custodian of a minor child to seek employment outside the home.
(8) The standard of living of the parties established during the marriage.
(9) The relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment.
(10) The relative assets and liabilities of the parties.
(11) The property brought to the marriage by either party.
(12) The contribution of a spouse as homemaker.
(13) The relative needs of the parties.
(14) The marital misconduct of either of the parties during the marriage; however, the marital misconduct of either of the parties during separation subsequent to the filing of a divorce complaint shall not be considered by the court in its determinations relative to alimony.

The directives found in each of the subsections quoted above, when read separately, are clear. Subsection (a) directs that alimony shall be awarded only if the party seeking alimony lacks sufficient property to provide for his or her reasonable needs and is unable to support himself or herself through appropriate employment. Subsection (b) directs that if upon consideration of the fourteen enumerated factors (in addition to any other relevant factors) the court finds it necessary, alimony shall be awarded.

Mr. Geyer complains that the lower court failed to consider the marital property received by Mrs. Geyer from equitable distribution in determining whether she could provide for her reasonable needs.

Section 501(a) includes in the property of a spouse any property distributed pursuant to Chapter 4 of the Divorce Code.

Chapter 4 of the Code concerns equitable distribution. 23 P.S. 401 et seq. The trial court does not discuss any facts involving the money received by Mrs. Geyer after equitable distribution. The Master’s Report merely recites that Mr. Geyer shall receive $28,000 from equitable distribution and Mrs. Geyer $29,500. Under these circumstances, we are unable to say that the lower court abided by the law as provided in 23 P.S. 501(a)(1). In so doing, the court abused its discretion.

Contained in appellant’s argument that the lower court did not give proper consideration to the distribution of marital property is the claim that appellee’s “reasonable needs” do not include making provision for the future. We do not agree. The master found from a reading of Mrs. Geyer’s “income and expense statement” that she is meeting her current expenses from her current income. Her budget is one without frills; one without any item for vacation, entertainment, lunch expense or provisions for replacement of her 15-year old automobile. There is no provision for savings to provide for future contingencies such as illness and to supplement her retirement which will be less than that of Mr. Geyer. Mrs. Geyer will have to secure other living quarters to replace the marital residence which was recommended to be divided as marital property. Mrs. Geyer indicated in her testimony that an apartment will cost her a minimum of $200 per month. Her preseri't living expenses in the marital house as shown on her “income and expense statement,” includes mortgage of $60 per month, insurance of $8.15 a month, realty taxes of $32.50 a month and maintenance expenses of $73.52 a month for a total of $174.17 so that her expenses for living quarters will increase by at least $25 per month. Accordingly, the master found that Mrs. Geyer lacked sufficient property and income to provide for her “reasonable needs.”

The parties were in their early sixties when the order was entered. Their periods of gainful employment were obviously coming to an end. To claim that Mrs. Geyer’s reasonable needs are met if she can sustain life on a day to day basis while she is working is to ignore the realities of the situation. She will almost surely be unable to work in a very few years. If her resources are such that her daily needs consume all of her money, she will be unable to meet those needs when she retires. We find no error in the conclusion of the lower court that the reasonable needs of a 61 year old person include the need to acquire some measure of financial security upon retirement.

On remand, the lower court is to consider the effect of the equitable distribution on appellee’s “reasonable needs.”

We turn now to the appellant’s claim that the order that he make alimony payments to Mrs. Geyer until her 65th birthday violates Section 501(c).

We are convinced that the General Assembly intended by enacting Section 501 to provide for economic justice to be met according to the actual needs and ability of the parties to pay. This goal requires that Section 501 be applied in a nonmechanical manner. Clearly, the legislature intended that a reasonable and compassionate result be reached.

The trial court explained in its opinion that it agreed with the master’s conclusion that Mrs. Geyer’s age and lack of skills will adversely affect her earning capacity and make it impossible for her to provide for the future.

While the trial court does not specifically refer to the statute, it is clear to us that it considered the mandate of Section 501(c) which provides in pertinent part,

unless the ability of the party seeking the alimony to provide for his or her reasonable needs through employment is substantially diminished by reason of age, physical, méntal or emotional condition ... or other compelling impediment to gainful employment ... [the order will be limited in duration].

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

It is true that Mrs. Geyer is not unable to find employment. Nevertheless, the lower court concluded, we believe properly, that the employment she can find is limited by her age and minimal skills. Therefore, her “ability to provide for her reasonable needs” is diminished by those factors. We find no error in the duration of the order.

Accordingly, we reverse the order of the trial court as to the alimony award and remand to that court for proceedings consistent with this opinion at which it shall determine whether alimony shall be awarded and if so in what amount. Given our disposition of the afore-discussed issues, we will not discuss whether the award was excessive. Jurisdiction is not retained by this court.

WIEAND, J., files a dissenting statement.

WIEAND, Judge,

dissenting:.

I respectfully dissent. I find it unnecessary to remand this cause to the trial court for consideration of additional factors. My review of the record persuades me that the trial court did give due consideration to those factors mandated by statute and thereafter entered an award of alimony that was eminently fair and reasonable. Finding no abuse of discretion, I would affirm that order.


author: ROWLEY, Judge:

text:
    456 A.2d 1029
    Kirk HALL v. The GOODMAN COMPANY and Sears, Roebuck and Co. and Alfred Mestichelli. Appeal of the GOODMAN COMPANY. Kirk HALL v. Alfred MESTICHELLI and Granite Run Mall, Inc., and Sears, Roebuck and Co. Appeal of GRANITE RUN MALL, INC.
    Superior Court of Pennsylvania.
    Argued May 4, 1982.
    Filed Feb. 18, 1983.

      Kathleen M. Turezyn, Media, for appellants.
    Arnold Justin Bennett, St. Davids, for appellees.
    Before SPAETH, ROWLEY and CIRILLO, JJ.
   ROWLEY, Judge:

These are consolidated appeals from two separate orders of the Court of Common Pleas of Delaware County entered on January 23, 1981, in the above-captioned cases sustaining preliminary objections filed by Sears, Roebuck and Company (Sears) and dismissing Sears as an additional defendant in each of the actions. Both The Goodman Company (Goodman) and Granite Run Mall, Inc. (Granite) have filed appeals in their respective cases with this Court in response to those orders. The appeals filed by Goodman and Granite were consolidated for oral argument and are now before us for review. For the reasons found below, we affirm the trial court’s order in the appeal brought by Goodman (appeal No. 440), and reverse the trial court’s order in the appeal brought by Granite (appeal No. 441).

History of the Case

Kirk Hall, an employee of appellee Sears, slipped and fell on an icy parking lot at the Granite Run Mall (the Mall) in Delaware County on January 24, 1978. Sears was a tenant of the Mall and rented space for its store under the terms of a written lease entered into on February 11, 1972, with appellant Granite, a corporation and alleged nominal title holder of the shopping complex. Appellant Goodman, a sole proprietorship owned by Murray Goodman, purportedly operated the Mall on Granite’s behalf. The precise relationship between Granite and Murray Goodman was never specifically stated in the pleadings, although Murray Goodman is consistently referred to as the “beneficial owner” of the Mall property said to be held in Granite’s name.

On December 6, 1979, Kirk Hall filed the first of two complaints in trespass to recover damages for the injuries he allegedly sustained as a result of his January, 1978 fall. In his December 6, 1979 complaint, Hall averred that Goodman owned, maintained and had control over the parking lot adjacent to the Mall complex where he claimed he fell and was injured. In response to Hall’s complaint, Goodman filed an answer in which it denied ownership, control or maintenance over the parking lot, and in turn averred that ownership of the property in question was held by Granite, with maintenance or control over the same being the responsibility of Granite or Hall’s employer, Sears. After having filed its answer to Hall’s complaint, Goodman then proceeded to file complaints to join as additional defendants Sears and Alfred Mestichelli, a snow removal contractor. Attached to Goodman’s complaint against Sears as exhibits were Hall’s complaint against Goodman and Goodman’s answer to Hall’s complaint.

In its complaint against Sears, Goodman alleged that Sears was, obligated, under Paragraphs 25.2, 25.3 and 25.4 of its lease for space in the Mall with Granite, “to remove all snow and ice on” the premises where Hall fell. Goodman also alleged that Sears had agreed in that lease in Paragraphs 31.1, 31.2 and 31.3 to indemnify Granite against Hall’s claims. Attached to Goodman’s complaint was ostensibly that portion of the lease between Sears and Granite where those paragraphs appeared. In its prayer for relief found at the end of the complaint to join, Goodman made the following demand: “WHEREFORE, the Goodman Company, Inc. demands judgment against Sears Roebuck and Company for any sums which the Defendant, Granite Run Mall, Inc. may be forced to pay the Plaintiff.” (emphasis added). Goodman worded its demand in this fashion even though Granite was not a defendant in the action begun on December 6, 1979, and even though Goodman was not a corporation and Goodman and Granite, by Goodman’s own averment in its answer to Hall’s complaint, were not the same entity.

In response to Goodman’s complaint, Sears filed preliminary objections in the nature of a demurrer pursuant to Pa.R.C.P. No. 1017(b)(4) alleging that it could not be joined in the December 6, 1979 action under a theory of indemnity since there was no written agreement between it and Goodman. Attached to a memorandum of law filed by Sears in support of its preliminary objections were those portions of the lease agreement between it and Granite which had not been attached to Goodman’s complaint and which delineated the parties to the lease as comprising only Sears and Granite. Sears asserted in its preliminary objections that § 303 of the Pennsylvania Workmen’s Compensation Act prohibited joinder of an employer for indemnity in an action by an employee against a third party unless a written agreement expressly providing for such indemnity existed between the employer and the third party. Because no such agreement had been signed by Goodman and Sears, Sears maintained that it could not be joined as a matter of law in Hall’s suit for damages against Goodman. Goodman subsequently filed an answer to Sears’ preliminary objections averring that the mere fact that the lease contained only Granite and Sears’ names was an inconsequential “technicality,” and that Goodman was a known and intended third party beneficiary of that lease. The trial court sustained Sears’ preliminary objections and dismissed Sears as an additional defendant evidently agreeing with Sears’ reasoning rather than that of Goodman.

On January 14, 1980, Kirk Hall began the second of his two actions in trespass to recover damages for the injuries he allegedly sustained as a result of his January 1978 fall, naming as defendants Alfred Mestichelli, the snow removal contractor, and Granite. In this second action Hall alleged, as he had done in the complaint against Goodman, that Granite owned, maintained and had control over the parking lot where he purportedly fell. Granite, like Goodman, subsequently filed a complaint to join Sears as an additional defendant, along with an answer to Hall’s complaint and a cross-claim against Mestichelli. In attempting to join Sears and hold it jointly or severably liable for Hall’s damages, Granite relied on the provisions found in the written lease between the parties, attaching as exhibits to the complaint against Sears Hall’s complaint against it, the answer filed by it in response to Hall’s complaint, and a portion of the lease agreement between it and Sears. It was Granite’s assertion that under the terms of the lease Sears had the specific responsibility of caring for the parking lot with respect to accumulations of snow and ice, as well as a clear obligation to indemnify or hold Granite harmless for any damages assessed against it for Sears’ failure to perform said duties.

In response to the allegations found in Granite’s complaint, Sears filed preliminary objections which were entitled: “PRELIMINARY OBJECTIONS PURSUANT TO PA. R.C.P. 1017(b)(5).” Under that general heading, Sears divided its preliminary objections into three sets of numbered paragraphs. The first set of numbered paragraphs carried no subtitle and immediately followed the general heading noted above. The second set of numbered paragraphs carried the subtitle “FIRST MISJOINDER OF CAUSE OF ACTION” and alleged misjoinder of a trespass and assumpsit action. The third set of numbered paragraphs carried the subtitle “SECOND MISJOINDER OF ACTION,” and raised the defense of Sears’ immunity from suit as Hall’s employer under the Workmen’s Compensation Act. In the untitled first set of numbered paragraphs, Sears, while acknowledging the lease between it and Granite, alleged that under the language of Paragraph 31.2 the indemnity provision of the lease was not binding if “the occurrence pursuant to which a claim was made was (i) actually due to or actually contributed to by the negligent or intentional act or negligent omissions of the other party [Granite], its agents, employees or independent contractors____” It was Sears contention that the work that was done by the snow removal contractor, Mestichelli, caused or contributed to the accident that was the basis for the claim being made by Hall, that Mestichelli was the employee, agent or servant of Granite, and that Granite, because of its relationship with Mestichelli, had no right of indemnity against Sears under Paragraph 31.2 of the lease. In support of that assertion, Sears attached to its preliminary objections an invoice from Mestichelli to Granite, an invoice from Granite to Sears, and a letter from Sears to Granite which discussed the billing procedure for the snow removal.

In reply to Sears’ preliminary objections, Granite filed an answer to the objections, and, under a section entitled “New Matter,” made a motion to strike the objections pursuant to Pa.R.C.P. No. 1017(b), (c). In its answer, Granite denied that there was a misjoinder of trespass and assumpsit actions, and further denied Sears’ contention that it was statutorily immune from suit. While Granite admitted in its answer that the invoices attached to Sears’ preliminary objections were valid, it disputed Sears’ interpretation of the meaning to be drawn from them, as well as Sears’ interpretation of the indemnity provisions of the lease agreement. In its motion to strike, Granite characterized the unlabeled section of Sears’ preliminary objections as a demurrer and objected to it on the ground that it was a “speaking demurrer” which attempted, by virtue of the exhibits attached by Sears, to supply a fact missing in the complaint.

The trial court was not persuaded by Granite’s arguments and entered an order sustaining Sears’ preliminary objections. With respect to the indemnity issue, the trial court specifically held that Mestichelli was “the employee, agent or servant of Granite” and that Granite had no right to indemnity from Sears under the lease. Because Granite had no right to indemnity from Sears under the lease, the trial court held that, under the provisions of the Workmen’s Compensation Act, Sears, as Hall’s employer, could not be joined as an additional defendant. Likewise, the trial court held that any attempt by Granite to join Sears for the purpose of apportioning fault would also be barred by the Workmen’s Compensation Act. The trial court upheld Sears’ claim of statutory immunity and found that it was not liable in any fashion to the plaintiff.

On appeal to this Court appellants are represented by the same legal counsel. In their joint brief they raise two issues. Those issues are: 1) Whether an employer of a plaintiff who brings a personal injury suit against a defendant for negligence, may be joined as an additional defendant solely for the purpose of determining the percentage of negligence of the employer, if any, pursuant to the Pennsylvania Comparative Negligence Act?; and 2) Whether the trial court erred in ruling that Sears may not be joined as an additional defendant on appellants’ claim for indemnity?

I

The first issue raised by appellants was recently resolved by this court. In Kelly v. The Carborundum Company, 307 Pa.Super. 361, 453 A.2d 624 (1982), we held that the joinder of an employer in a case such as this, for the purpose of determining the employer’s percentage of negligence, is prohibited by § 303 of the Workmen’s Compensation Act. We pointed out that the Comparative Negligence Act did not impliedly overrule prior appellate decisions on the subject. This Court’s decision in Heckendorn v. Consolidated Rail Corporation, 293 Pa.Super. 474, 439 A.2d 674 (1982), was approved. “If an employer accepts the responsibility of providing worker’s compensation benefits, he cannot be solely or jointly liable to an employee for negligence. Similarly, he is not liable to a third party tortfeasor ... He is not a party whose negligence is to be included in the apportionment required by the Comparative Negligence Act”. Heckendorn v. Consolidated Rail Corporation, supra, 293 Pa.Superior at 481-482, 439 A.2d at 678. Therefore, the trial court correctly sustained Sears’ preliminary objection to its joinder on this ground.

II

The second issue raised on appeal is whether the trial court erred in upholding Sears’ argument that, under the terms of the lease between it and Granite, it could not be joined as an express indemnitor in either one of the two suits by Hall. In considering this issue, we will review the action of the trial court with respect to Goodman and Granite separately.

A

In the case involving Goodman, Sears raised its contention that it could not be joined as an express indemnitor by way of a preliminary objection in the nature of a demurrer. Sears alleged in its demurrer that it could not be joined as a matter of law since there was no written indemnity agreement between it and Goodman.

Initially we note the applicable standard of review is expressed in Donnelly v. DeBourke, 280 Pa.Super.Ct. 486, 489, 421 A.2d 826, 828 (1980) (citations omitted):
[WJhen considering preliminary objections in the nature of a demurrer, we accept as true all well-pleaded material facts in the complaint, as well as all inferences reasonably deducible therefrom ... [Preliminary objections should be sustained and a complaint dismissed only in cases that are clear and free from doubt, i.e., it must appear with certainty, that, upon the facts averred, the law will not permit recovery by the plaintiff.
See also Bickell v. Stein, 291 Pa.Super.Ct. 145, 149, 435 A.2d 610, 612 (1981).
A demurrer is an assertion that a complaint does not set forth a cause of action or a claim on which relief can be granted. Del Boring Tire Service, Inc. v. Barr Mach., Inc., 285 Pa.Super.Ct. 66, 426 A.2d 1143 (1981). A demurrer by a defendant admits all relevant facts sufficiently pleaded in the complaint, and all inferences fairly deducible therefrom, but not conclusions of law or unjustified inferences. Barto v. Felix, 250, Pa.Super.Ct. 262, 378 A.2d 927 (1977). In ruling on a demurrer, the court may consider only such matters as arise out of the complaint itself; it cannot supply a fact missing in the complaint. Linda Coal and Supply Co. v. Tasa Coal Company, 416 Pa. 97, 204 A.2d 451 (1964). Any doubt as to whether a demurrer should be sustained should be resolved against the moving party. Commonwealth, Dept. of Environ mental Resources v. Peggs Run Coal Co., 55 Pa.Commw.Ct. 342, 423 A.2d 765 (1980).

DeSantis v. Swigart, 296 Pa.Super. 283, 286, 442 A.2d 770, 771-772 (1982).

In its complaint to join Sears, Goodman relied solely on the lease between Sears and Granite and the indemnity clause found therein. Although Goodman admitted that the contract was between Sears and Granite, Goodman contended that, as the “beneficial owner” of the mall, it was a third party beneficiary of the contract and therefore had a right to enforce the indemnity clause against Sears. This argument is without merit.

Under § 303 of the Workmen’s Compensation Act it is clear that an employer may not be liable to a third party for indemnity unless such liability is expressly provided for in a written contract. It is undisputed that no writing exists which expressly provides for Sears’ indemnity of Goodman.

Furthermore, even in the absence of such clear statutory language, Goodman could not be considered a third party beneficiary of the lease. To be a third party beneficiary entitled to recover on a contract, such an intention of both parties to the contract must be indicated in the contract. The obligation to the third party must affirmatively appear in the contract itself. Bornstein & Son, Inc. v. R.H. Macy & Co., 278 Pa.Super. 156, 420 A.2d 477 (1980). In this case, no mention of Goodman is made anywhere in the lease agreement. Therefore, the order dismissing Sears as a party in the action against Goodman is affirmed.

B

In the case involving Granite, Sears raised its contention that it could not be joined as an express indemnitor by way of preliminary objections in an untitled set of numbered paragraphs found under the general heading “PRELIMINARY OBJECTIONS PURSUANT TO PA.R.C.P. 1017(b)(5).” In spite of the general title and its indication that the preliminary objections were being filed pursuant to Pa.R.C.P. No. 1017(b)(5), Granite interpreted this section as a demurrer. In its memorandum of law filed with the trial court, Sears used language which indicated that it considered itself as having demurred to Granite’s complaint. Although the trial court did not expressly say so in its opinion, it also apparently treated Sears untitled set of numbered paragraphs as a demurrer.

Assuming that its objection was a demurrer, under our scope of review noted above it was improper for Sears to attach to its preliminary objections the invoice from Mestichelli to Granite, the invoice from Granite to Sears, and the letter from Sears to Granite, to support its allegation that Mestichelli was an agent, employee or independent contractor of Granite. It is well-settled that a demurrer cannot be a “speaking demurrer” and cannot be used to supply a fact missing in the complaint. Linda Coal & Supply Co. v. Tasa Coal Co., 416 Pa. 97, 204 A.2d 451 (1964); Goodrich-Amram 2d § 1017(b):ll. Therefore, we will not consider these exhibits attached by Sears.

If we do not consider the above-mentioned exhibits , the demurrer should have been overruled. By alleging the existence of a written lease between it and Sears which contained an indemnity clause, Granite placed itself within the exception of § 303 of the Workmen’s Compensation Act. It is well-settled that an employer may be joined as an additional defendant in a trespass action by an employee against a third party when the employer’s liability is based on an express agreement to indemnify the third party. Nechwedowich v. Great Atlantic & Pacific Tea Co., Inc., 300 Pa.Super. 152, 446 A.2d 275 (1982); Gallagher v. Transport Pool, Inc., 281 Pa.Super. 188, 421 A.2d 1212 (1980); Szemanski v. Vulcan Materials Co., 272 Pa.Super. 240, 415 A.2d 92 (1979). Therefore, under the facts as alleged in Granite’s complaint, Sears is not immune from suit under that Act.

The precise relationship between Mestichelli and Granite and/or Sears, as well as the proper interpretation of the indemnity clause in the lease, can only be determined after all the facts relating to those issues have been fully developed. Those issues certainly are not “free from doubt” at this time. Because Granite’s complaint clearly states a cause of action for indemnity against Sears, we will reverse the trial court’s order insofar as it sustained Sears’ demurrer to Granite’s claim for indemnity. The court erred in dismissing Granite’s complaint against Sears insofar as that complaint alleged that Sears was liable to indemnify Granite on plaintiff’s cause of action.

However, we reiterate that the question of whether Sears is actually liable under the indemnity clause in this particular case is not settled . Sears may still deny liability in an answer and raise the condition contained in paragraph 31.2 of the lease as a defense under “New Matter” if it chooses to do so. This issue of whether the indemnity clause applies in this case may then be determined either after the pleadings are completed or at trial.

The order of the trial court in the appeal at No. 440 Philadelphia, 1981 is affirmed. The order of the trial court in the appeal at No. 441 Philadelphia, 1981 insofar as it sustains Sears’ preliminary objection to its joinder as an additional defendant for the purpose of apportioning fault under the Comparative Negligence Act is affirmed; in all other respects the order is reversed. Cases remanded for further proceedings consistent with this opinion.

Jurisdiction is relinquished.

      . Because Goodman attached the complaint against it by Hall, as well as the answer it filed in response to Hall’s complaint, as exhibits to its complaint to join Sears, those pleadings, and the facts contained therein, are included in our review.

      . In the opening paragraph of its preliminary objections, Sears stated that the preliminary objections were being filed in response to "the complaint brought against it by Granite Run Mall.” In the heading above that opening paragraph, however, Sears indicated that the preliminary objections were being filed in response to "DEFENDANT GOODMAN’S COMPLAINT.” Because the caption on the pleading and the other references found therein verify that the preliminary objections were indeed being filed in response to Goodman’s complaint and not a complaint by Granite, we disregard the reference to Granite found in the opening paragraph.

      . Act of December 5, 1974, P.L. 782, No. 263, 77 P.S. § 481. Section 303 provides that an employer may be liable to a third party for damages, contributions, or indemnity if “liability for such damages, contributions or indemnity shall be expressly provided for in a written contract entered into by the party alleged to be liable prior to the date of the occurrence which gave rise to the action.”

      . The trial court did not discuss Goodman’s claim of a right to indemnity in its opinion submitted to this court pursuant to Pa.R.A.P. 1925.

      . Act of April 28, 1978, P.L. 202, No. 53, § 10(89), as amended, 42 Pa.C.S.A. § 7102. The first issue was raised only by Granite in the trial court.

      . Granite has waived on appeal any alleged error by the trial court with respect to Sears’ claim that Granite had improperly joined causes of action in trespass and assumpsit. No mention of this issue is contained in the statement of issues raised on appeal, nor was it argued or briefed before this Court. However, it is clear that that objection has no merit and, insofar as the trial court’s order sustained this objection, it erred.

      . The prohibition found in the Workmen’s Compensation Act of the joinder of an employer in a suit by an employee against a third party is, in reality, an immunity defense. Consequently, we are in doubt as to the procedural propriety of raising such an immunity claim by way of preliminary objection rather than in an answer and new matter. See Pa.R.C.P. No. 1030. Our Court in the past, however, has considered the merits of these claims when raised by way of preliminary objection, and therefore, we will do likewise. See Heckendorn v. Consolidated Rail Corporation, supra.

      . We note that the appellants have included a complete copy of the lease between Sears and Granite in their joint reproduced record.

      . In the case involving Goodman, Sears attached to its memorandum of law filed with the trial court in conjunction with its demurrer that portion of the lease between it and Granite which Goodman had neglected to attach to its complaint. Because it was clear from the face of Goodman’s complaint that no written contractual right of indemnity existed between it and Sears, we did not reach the issue of whether Sears’ submission of that portion of the lease was proper. However, if we had been confronted with that issue, we would have held that Sears’ annexation of that portion of the contract omitted in Goodman’s complaint was proper and valid. “[W]hen the plaintiff bases his cause of action on a written agreement, the defendant may attach the agreement to the preliminary objections, and it may be referred to for purposes of deciding a demurrer.” Satchell v. Insurance Placement Facility of Pennsylvania, 241 Pa.Super. 287, 292, 361 A.2d 375, 377 (1976).

      . Even if we did consider these exhibits, the relationship between Granite and Mestichelli is still not clear. For example, the entire body of the above-mentioned letter from Sears to Granite is as follows:
      Mr. Keith Kase Manager Granite Run Mall Media, Pa. 19063
      Dear Keith:
      Mr. Brucker and I have reviewed last year’s method of charging us for snow removal and your letter stating that there would be approximately 270 additional parking spaces this year. Since the convenience center parking will not be included in our snow removal cost, we agree with you that the 17% figure is a realistic one. When you bill our store for our 17% of the charge, would you please include a copy of the total charge. Thank you again for your assistance.
      Very truly yours, s/C.J. Martini C J. Martini Operating Supt.
      While the letter implies that there was another agreement between Sears and Granite concerning the responsibility for snow removal, it does not disclose the terms of that agreement. Consequently, even if we were to consider Sears’ exhibits, we cannot say that it is "clear” or "free from doubt” that the law would not permit recovery by Granite against Sears.

      . Unlike the situation in Potts v. Dow Chemical Co., 272 Pa.Super. 323, 415 A.2d 1220 (1979), this is not a case in which the pleadings clearly demonstrate that there is no duty to indemnify.