author: HESTER, Judge:

text:
    666 A.2d 1091
    Dr. Alexander BUNT, Jr., as Trustee for Christian Medical Center Defined Benefit Pension Plan, Campus Medical Center, Appellant v. PENSION MORTGAGE ASSOCIATES, INC., Francis J. Regan, Jr., and Jeffrey Williams. Dr. Alexander BUNT, Jr., as Trustee for Christian Medical Center Defined Benefit Pension Plan, Campus Medical Center, Appellant v. Francis J. REGAN, Jr., and Jeffrey Williams, Individually and T/A Williams Financial Group, Robert G. Welch, Esquire, Individually and T/A Robert G. Welch, P.C. and Intrepid I Services, Inc., T/A Intrepid I.
    Superior Court of Pennsylvania.
    Argued Aug. 1, 1995.
    Filed Oct. 24, 1995.

      David Zicherman, Philadelphia, for appellant.
    William G. Halligan, Media, for appellees.
    Before BECK, SAYLOR and HESTER, JJ.
   HESTER, Judge:

Dr. Alexander Bunt, Jr., in his capacity as trustee for Christian Medical Center Defined Benefit Pension Plan, Campus Medical Center (the “Plan”), appeals the April 26, 1994 decision of the trial court to dismiss two actions based on the fact that they are pre-empted by the Employee Retirement Income Security Act (“ERISA”), 29 U.S. §§ 1001, et seq., and that pursuant to that statute, Pennsylvania lacks jurisdiction. We affirm.

Two separate actions are at issue herein. Appellant instituted both actions in his capacity as trustee of the Plan. In 1989, appellant instituted the first action against Pension Mortgage Associates, Inc., Francis J. Regan, Jr., and Jeffrey Williams. In 1992, appellant instituted the second action against Mr. Regan, Mr. Williams, Williams Financial Group, Robert G. Welch, Esquire, Robert G. Welch, P.C., and Intrepid I Services, Inc., t/a Intrepid I. The defendants collectively are the appellees. Both actions concern the fact that appellees allegedly advised appellant to invest the Plan assets in investment vehicles which suffered losses.

In the 1989 complaint, appellant alleges the following. Since January, 1986, the individual defendants have been employed to administer the Plan, have been employed as investment fund managers, and have directed fund investments. In 1989, the individual defendants recommended that Plan assets be placed in a real estate mortgage which they said would be financially safe. The mortgage was to yield an annual return of eleven percent and was secured with 118 acres of real estate in New Jersey. The defendants prepared a mortgage participation agreement for the transaction, and appellant liquidated Plan assets to invest $162,025.68 in the mortgage investment vehicle. The individual defendants received a finder’s fee for the investment, and in addition, the corporate defendant, in which the two individual defendants own a controlling interest, received interest income on the mortgage principal. Appellant alleges in the complaint that he received only two interest payments from this venture and has not received any return of his principal.

As relief, appellant requests that the corporate defendant be dissolved, the mortgage agreement be rescinded, sanctions authorized under ERISA be imposed, an accounting be ordered, all transactions between the Plan and the corporate defendant be set aside, all money forwarded to the corporate defendant be reimbursed to the Plan, all outstanding debts due the Plan under the mortgage agreement be paid, and lost profits be refunded.

In the 1992 action, appellant alleges the following. Mr. Regan and Mr. Williams were responsible for the investment of Plan assets and administration of the Plan. In addition, Mr. Welch was hired to assist in the administration of the Plan and investment of Plan assets. The individual defendants collusively induced appellant to execute certain investment contracts and transfer $644,030.58 from the Plan to investments in nine entities, including Intrepid I Services, Inc. Appellant never was told that Mr. Williams and Mr. Welch were officers, directors, and controlling shareholders in that corporation. Appellant also was not informed that Mr. Williams received a commission on the foregoing investment, which was shared with the other two individuals.

The investments did not perform as represented by the defendants, and in June, 1990, appellant received notice that one of the nine entities filed for bankruptcy. In the 1992 action, appellant again requests return of the Plan investments and remedies similar to those requested in the 1989 action.

The two actions were consolidated. After the pleadings were closed and discovery was conducted and upon motion by appellees, both actions were dismissed due to the operation of ERISA. This appeal followed.

Congress has the power to pre-empt state law as well as state causes of action pursuant to the supremacy clause of the United States Constitution. U.S. Const.Art. VI, cl. 2. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992); Gingold v. Audi-NSU-Auto Union, A.G., 389 Pa.Super. 328, 567 A.2d 312 (1989). State law can be pre-empted by federal legislation either explicitly in the statute itself or implicitly. In the latter case, preemption will be found if the state law is in actual conflict with the federal law or if federal regulation of the area at issue is so comprehensive that the inference is created that Congress intended to occupy the entire area of law. Cipollone v. Liggett Group, Inc., supra; see also Heiple v. C.R. Motors, Inc., 446 Pa.Super. 310, 666 A.2d 1066 (1995).

At issue in this case is ERISA’s express pre-emptive provision, 29 U.S.C. § 1144 (emphasis added):

(a) Except as provided in subchapter (b) [] of this section, the provisions of this subchapter and subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan ...
(c) For purposes of this section:
(1) The term “State law” includes all laws, decisions, rules, regulations, or other State action having the effect of law, of any State....
(2) The term “State” includes a State, and political subdivisions thereof, or any agency or instrumentality of either, which purports to regulate, directly or indirectly, the terms and conditions of employee benefit plans covered by this subchapter.

Section 1144 is included in subchapter I of ERISA. This subchapter expansively governs reporting and disclosure requirements for all employee benefit plans, the substantive provisions that must be included in employee benefit pension plans, funding requirements for employee benefit pension plans, fiduciary responsibility and fiduciary liability provisions applicable to employee benefit plans, and administrative and enforcement provisions. Among the enforcement provisions is 29 U.S.C. § 1132 (emphases added), which regulates jurisdiction and provides in relevant part:

Except for actions under subsection (a)(1)(B) of this section, the district courts of the United States shall have exclusive jurisdiction of civil actions under this subchapter brought by the Secretary or by a participant, beneficiary, or fiduciary. State courts of competent jurisdiction and district courts of the United States shall have concurrent jurisdiction of actions under subsection (a)(1)(B) of this section.

Subsection (a)(1)(B) confers concurrent state jurisdiction only with respect to civil actions brought by participants or beneficiaries and is not applicable herein.

Furthermore, portions of ERISA included in subchapter I involve extensive regulation of fiduciaries. Those provisions outline the duties of fiduciaries, the standards of care applicable to them, and transactions they are not permitted to perform. See 29 U.S.C. §§ 1101-1114 (part 4 of subchapter I of subtitle B of ERISA — Fiduciary Responsibility). Especially pertinent to this case is 29 U.S.C. § 1109, which provides in relevant part:

(a) Any person who is a fiduciary with respect to a plan who breaches any of the responsibilities, obligations, or duties imposed upon fiduciaries by this subchapter shall be personally liable to make good to such plan any losses to the plan resulting from each such breach, and to restore to such plan any profits of such fiduciary which have been made through use of assets of the plan by the fiduciary, and shall be subject to such other equitable or remedial relief as the court may deem appropriate, including removal of such fiduciary. A fiduciary may also be removed for a violation of section 1111 of this title.

Where, as here, Congress has considered the issue of pre-emption and has included a provision addressing the issue, then that provision is to be used as the controlling indication of Congress’s intent with regard to the viability of state law. Cipollone v. Liggett Group, Inc., supra. Where the language is broad, it must be given that effect and will not be given a restrictive reading. Cipollone v. Liggett Group, Inc., supra. ERISA’s language is broad, and the Supreme Court has ruled specifically that the provision was intended to pre-empt any state law that relates to an employee benefit pension plan; it is not necessary that the law conflict with a substantive provision in ERISA to be pre-empted. Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983). If the substantive remedies provided by state law cover the same remedies provided in ERISA, the state law is pre-empted. Id. Section 1109 provides a remedy to the Plan for the actions of appellees which are contained in these complaints. ERISA therefore pre-empts these actions.

Furthermore, the jurisdictional provision of ERISA mandates that all actions by or against a Plan, except those specified, are to be brought in federal court. These are not actions subject to concurrent state jurisdiction as they were not brought by a participant or beneficiary to recover a benefit due under the terms of a plan, to enforce rights under a plan, or to clarify rights to future benefits. These are actions instituted by a Plan to recover bad investments. Thus, we do not have subject matter jurisdiction, even if appellant’s state claims are considered to survive ERISA’s pre-emption provision. See Goldberg v. Coplan, 277 Pa.Super. 47, 419 A.2d 653 (1980).

In the face of this, appellant raises what can be condensed into three arguments: 1) the incorrect standard of review was employed by the trial court; 2) the complaints are not preempted by ERISA since they do not state causes of action arising under ERISA but instead state valid causes of action under Pennsylvania law; and 3) the trial court was without jurisdiction to decide this issue because the motions to dismiss were filed with the trial court itself rather than with the prothonotary and are not included in the certified record on appeal.

Appellant’s first argument is that the trial court erred in failing to treat the motions to dismiss as motions for judgment on the pleadings or as summary judgment motions since discovery had been taken and the pleadings closed. He then continues that when the correct standard is utilized, it is clear that the trial court erred in failing to review the facts in the light most favorable to him. Appellant then follows this with an argument that the state causes of action are not preempted because they do not arise under ERISA and are valid state claims.

However, whether the complaints set forth valid state causes of action is irrelevant. The issue is whether what may or may not be “valid” claims are pre-empted under section 1144’s language. Meanwhile, appellant has failed to refer us to a single case on federal pre-emption. Even more egregious, appellant does not cite the pre-emption and jurisdictional provisions of ERISA. Instead, he continues by stating how each cause of action is a valid state claim and how the claims are not ones “arising under ERISA.” Appellant’s brief at 16. He then conclusorily argues that the trial court therefore erred in concluding that these actions are barred by ERISA. Appellant cites no legal authority for his proposition that these actions are not barred by ERISA.

Pa.R.A.P. 2119(a) (emphasis added) provides in relevant part that the argument shall be “followed by such discussion and citation of authorities as are deemed pertinent.” Rule 2119 contains mandatory provisions. regarding the contents of briefs. We have held consistently, “Arguments that are not appropriately developed are waived. Nimick v. Shuty, 440 Pa.Super. 87, 100, 655 A.2d 132, 138 (1995); Smith v. Penbridge Associates, Inc., 440 Pa.Super. 410, 427, 655 A.2d 1015, 1024 n. 12 (1995).” Gallagher v. Sheridan, 445 Pa.Super. -, -, 665 A.2d 485, 487 (1995) (footnote omitted) (emphasis added).

It is the appellant who has the burden of establishing his entitlement to relief by showing that the ruling of the trial court is erroneous under the evidence or the law.’ Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800 (1984). Where the appellant has failed to cite any authority in support of a contention, the claim is waived. Gallagher v. Sheridan, supra; see also Hercules v. Jones, 415 Pa.Super. 449, 609 A.2d 837 (1992) (where appellant presented a position without elaboration or citation to case law, we declined to address phantom argument).

Appellant raises arguments that are not relevant and then conclusorily presents the only pertinent argument, ignoring the correct legal standards. We note the following with respect to his argument that the motions were improperly treated as motions to dismiss. The allegations are not in dispute; we can accept fully all the allegations contained in the complaints about appellees’ fraudulent acts. That is not the issue in this appeal. However the complaint is viewed and whether the motions are treated as ones to dismiss, as ones for judgment on the pleadings, or as ones for summary judgment, appellant cannot ignore the substantive issue herein. That issue is whether these cases are pre-empted and whether these actions are subject to the mandatory federal jurisdictional provisions of ERISA. The complaints here “relate to” a pension plan subject to the provisions of ERISA; the actions were not instituted by plan beneficiaries. Appellant’s arguments do not refute this conclusion; the trial court will be affirmed.

Appellant’s related argument is that if the record is viewed in the light most favorable to him, ERISA does not pre-empt the actions for the following reasons. Appellant alleged in his complaints that the individual defendants were fiduciaries within the meaning of ERISA. Those defendants denied that they were fiduciaries. Then, after appellees moved to dismiss the actions based on ERISA, appellant elected to argue that they were fiduciaries. Appellant argues that since the record viewed in the light most favorable to him establishes that the defendants are not fiduciaries under ERISA, ERISA does not apply.

Again, appellant misapprehends the law. This Plan is an employee benefit pension plan within the meaning of ERISA. This is true whether or not appellees are fiduciaries with respect to the Plan. ERISA, as interpreted by the previously-cited law, has made the regulation of pension plans exclusively a federal concern. ERISA expresses Congressional desire that all plans subject to its provisions be subject to uniform rules and that people who deal with ERISA plans be subject to consistent liability. Shaw v. Delta Air Lines, Inc., supra; Goldberg v. Caplan, supra.

Thus, whether the defendants are fiduciaries must be determined by federal courts under uniform federal law. Whether appellees are subject to liability for their actions as those actions impact on this ERISA-covered plan, as clearly provided in ERISA, must be analyzed in a federal court according to uniform federally-developed law. Whether an individual’s actions render him a fiduciary is to be subject to uniform interpretation and not vary according the state where the plan was created. Fiduciaries are not to be subject to conflicting liability under various state laws.

We next address appellant’s claim that the trial court was without jurisdiction to decide the matter because the motions to dismiss were filed with it rather than with the prothonotary. There is no case holding that a trial court does not have jurisdiction to entertain a motion handed to it. Appellant has confused a jurisdictional argument with a waiver argument.

Our law is that if appellate resolution of an issue is dependent upon materials not provided in the record, it is deemed waived. See, e.g., Commonwealth v. Muntz, 428 Pa.Super. 99, 630 A.2d 51 (1993). In this case, however, appellees’ motions to dismiss are not necessary for us to resolve the issue. Our disposition of whether these actions are pre-empted requires only an examination of the complaints and reference to relevant law.

As a practical matter, if we would reverse on this procedural ground, the only result would be a waste of judicial resources. The motions merely would be re-filed, the cases dismissed again, the appeals filed again, and briefs ordered again. This follows because subject-matter-jurisdiction issues cannot be waived.

Thus, appellant cannot avoid the fact that his entitlement to relief requires that he address the substantive issues presented herein. Appellant has chosen to ignore the substantive issues by misstating the law and ignoring applicable precedent. We therefore affirm.

Order affirmed.

      . A third action instituted by appellant also was dismissed but the propriety of that dismissal is not before us.

      . We note that there is no dispute that the plan is an employee benefit pension plan within the meaning of section 3(2)(A) of ERISA, 29 U.S.C. § 1002(2)(A).

      . This is a savings clause, not at issue herein, that relates to insurance regulation.

      . The term "state law” has been construed to include all common law as well as statutory causes of action permitted under state law. Cipollone v. Liggett Group, Inc., supra.

      . Appellant asks that we remand this case so that the trial court can consider whether to transfer this action to federal court. Issues not raised in the trial court may not be considered on appeal. Reilly by Reilly v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204, 489 A.2d 1291 (1985); see also Tartar v. Linn, 396 Pa.Super. 155, 578 A.2d 453 (1990). Appellant never raised the issue of transfer in the trial court, see reproduced record at 186a-204a, and may not now raise it on appeal.


source: Caselaw Access Project

author: CIRILLO, Judge:

license: Public Domain

text:
    666 A.2d 1096
    Theresa COSTELLO, Appellant, v. Martin COSTELLO and Linda Werner.
    Superior Court of Pennsylvania.
    Argued Sept. 21, 1995.
    Filed Oct. 26, 1995.

      Mary A. Scherf, Philadelphia, for appellant.
    Before CIRILLO, TAMILIA and HOFFMAN, JJ.
   CIRILLO, Judge:

Paternal Grandmother Theresa Costello (Grandmother) appeals from an order awarding her primary physical custody of her grandchild, Kevin, and awarding partial custody of Kevin to her son, Martin Costello (Father). We vacate and remand.

Father filed a petition to confirm custody against Kevin’s mother, Linda Werner (Mother). Mother apparently had a serious drug problem. On the day the custody matter was listed for trial, Mother failed to appear, and custody was. confirmed in Father.

Grandmother petitioned for custody of the child. She asserted that Kevin had been living with her since 1990, and that Father was homeless and had both drug and alcohol addictions. Additionally, Mother filed a petition requesting partial custody. The trial court consolidated the outstanding petitions of Mother and Grandmother and a hearing was scheduled. Grandmother appeared at the hearing; Mother and Father did not. Custody was confirmed in Grandmother without prejudice to either parent. Approximately one month later, the court granted Grandmother a temporary ex parte Protection From Abuse order against Father.

Father requested a custody hearing, at which Father, Grandmother, and Grandmother’s counsel were present. During the hearing, Father voluntarily relinquished primary physical custody of Kevin to Grandmother. The court granted Father’s request for partial custody. The parties worked with the court (on the record) and decided upon acceptable times for Kevin to spend with Father. The trial court’s order provided:

Primary physical custody of child Kevin is awarded to Theresa Costello, paternal grandmother. Father to have partial custody on Wednesday from 5 p.m. to 8 p.m. Paternal Grandmother will take the child to his soccer game and Father will attend and take him after the game. Father also to have the child every Saturday and Sunday, Saturday from 9 a.m. to 7 p.m. Drop off at Nativity Church and Sunday from 9 a.m. to 8 p.m. Pick up and return on Sundays to take place at curb side. Relist in six (6) months for review.

Grandmother attempted to file a petition to modify the court’s order. The Custody Intake Department refused, stating that the case was to be relisted in six months, and that the case had only been in court one week earlier. Grandmother filed a notice of appeal to this court.

The following issues have been presented for our consideration:

(1) Did the trial court abuse its discretion in failing to make a complete record from which a determination of Kevin’s best interests could be made before entering a partial custody order for Father?
(2) Did the trial court err by violating 23 Pa.C.S.A. § 5303(a) when it entered a partial custody order in conflict with a valid, existing PFA order under which Father was prohibited from having contact with the child?

In child custody matters, this court is guided by the following standard of review:

The scope of review of an appellate court reviewing a child custody order is of the broadest type; the appellate court is not bound by the deductions or inferences made by the trial court from its findings of fact, nor must the reviewing court accept a finding that has no competent evidence to support it.... However, this broad scope of review does not vest in the reviewing court the duty or the privilege of making its own independent determination.... Thus, an appellate court is empowered to determine whether the trial court’s incontrovertible factual findings support its factual conclusions, but it may not interfere with those conclusions unless they are unreasonable in view of the trial court’s factual findings; and thus, represent a gross abuse of discretion.

Kaneski v. Kaneski, 413 Pa.Super. 173, 604 A.2d 1075 (1992) (citing McMillen v. McMillen, 529 Pa. 198, 602 A.2d 845 (1992)).

Grandmother argues that the record did not contain sufficient evidence concerning Father’s behavior, ie., the circumstances surrounding the PFA order, and Father’s history of drug and alcohol problems. We agree.

In the context of a child custody case a trial court must ensure that a full and complete record is created when a decision as important as the welfare of a child is at issue. Tettis v. Boyum, 317 Pa.Super. 8, 463 A.2d 1056 (1983).

As we have cautioned the lower courts time and time again, in order to assess the best interests and general welfare of the child or children, it is the duty of the trial judge to make the fullest possible inquiry in custody actions. Commonwealth ex rel. Cox v. Cox, 255 Pa.Super. 508, 388 A.2d 1082 (1978); Commonwealth ex rel. Ashfield v. Cortes, 210 Pa.Super. 515, 234 A.2d 47 (1967). All pertinent facts and circumstances surrounding the contesting parties must be fully explored and developed. Sipe v. Shaffer, 263 Pa.Super. 27, 396 A.2d 1359 (1979). The hearing judge should consider the character and fitness of the respective parties, the type of home they can offer, [and] their ability to financially provide for the child. Gerald G. v. Theresa G., 284 Pa.Super. 498, 502, 426 A.2d 157, 159 (1981), quoting Commonwealth ex rel. Leighann A. v. Leon A., 280 Pa.Super. 249, 252, 421 A.2d 706, 708 (1980).

Moore v. Moore, 535 Pa. 18, 25, 634 A.2d 163, 167 (1993) (emphasis added) (quoting Tettis, 317 Pa.Super. at 23, 463 A.2d at 1064); see also Lambert v. Lambert, 409 Pa.Super. 552, 566, 598 A.2d 561, 568 (1991). It is axiomatic that the paramount concern in child custody proceedings is the best interest of the child. McMillen, supra.

In order to ensure that the best interests of the child will be served, the appellate court will engage in a comprehensive review of the record.... Thus, while it will defer to the [trial] court’s findings of fact, the appellate court will not be bound by the deductions and inferences made by the trial court.... Where the record is incomplete or the opinion of the [trial] court is inadequate, the case will be remanded.

Gerald G. v. Theresa G., 284 Pa.Super. 498, 501-04, 426 A.2d 157, 159-60 (1981) (citations omitted).

Our review of the testimony indicates an inadequate record with regard to the PFA order. Specifically, Father testified that the PFA order was a result of him spitting on his sister. The trial court pursued Father’s explanation with this inquiry: “Did this incident have anything to do with Kevin[?] ... Was he involved? Was he injured by you or anything like that?” Father responded “no.” There was no further testimony on the subject of the PFA. Additionally, the fact that Father had a PFA order entered against him was not mentioned in the trial court’s opinion. Similarly, the record contains scant information with regard to Father’s drug and alcohol treatment programs. Details were not provided. In fact, Father alleged that he had been “clean” for some time, yet also admitted to having a drink the week before the hearing. The trial court has not provided this court with a record upon which a custody award, albeit a partial custody award, could properly be based. Tettis, supra; Moore, supra. We, therefore, remand for a full hearing to consider the circumstances underlying the PFA order, and for a more complete inquiry into Father’s drug and alcohol problems and/or treatment.

On remand, we suggest, without directing, that the trial court consider fashioning an award of visitation, as opposed to partial custody. If an order of visitation is decided upon, a full hearing on remand is still necessary, considering the applicable standard for parental visitation. “[T]he appropriate standard to apply when presented with the issue of parental visitation is whether the parent suffers from mental or moral deficiencies which pose a grave threat to the child.” Green v. Sneeringer, 431 Pa.Super. 66, 69, 635 A.2d 1074, 1076 (1993) (citing In re Damon B., 314 Pa.Super. 391, 460 A.2d 1196 (1983); Commonwealth ex rel. Peterson v. Hayes, 252 Pa.Super. 487, 381 A.2d 1311 (1977)); see Commonwealth ex rel. Sorace v. Sorace, 236 Pa.Super. 42, 344 A.2d 553 (1975) (parent should seldom be denied right to visit with his child, but when severe mental or moral deficiency constitutes threat to child’s welfare, visitation rights may be denied to parent who manifests such condition); Scarlett v. Scarlett, 257 Pa.Super. 468, 390 A.2d 1331 (1978) (visitation may be limited or denied in a custody case only where a parent has been shown to suffer from severe mental or moral deficiencies that constitute a grave threat to the child).

Order vacated and remanded. Jurisdiction relinquished.

      . Mother did not appear, nor did she forward an explanation of her whereabouts.

      . Pursuant to Pa.R.C.P. 1915.1(b), " ‘partial custody' means the right to take possession of a child away from the custodial person for a certain period of time[,]” and " ‘visitation’ ” means the right to visit a child, but does not include the "right to remove the child from the custodial person’s control.” Pa.R.C.P. 1915.1(b).


author: BECK, Judge:

text:
    666 A.2d 1099
    Susan E. SPRENKEL and Robert C. Sprenkel, Appellants, v. CONSOLIDATED RAIL CORPORATION.
    Superior Court of Pennsylvania.
    Argued June 22, 1995.
    Filed Oct. 27, 1995.

      Michael Kelly, Harrisburg, for appellants.
    Craig J. Staudenmaier, Harrisburg, for appellee.
    Before ROWLEY, President Judge, and BECK and KELLY, JJ.
   BECK, Judge:

Appellants Susan E. Sprenkel and Robert C. Sprenkel brought this action to recover damages for injuries suffered by Susan Sprenkel when her automobile collided with a freight car belonging to appellee Consolidated Rail Corporation (“Conrail”). The trial court sustained preliminary objections in the nature of a demurrer filed by appellee, and dismissed appellants’ lawsuit. We determine that the “Occupied Crossing Rule” survives to shield the defendant railroad from liability in this negligence action.

In this appeal from the dismissal of an action based on preliminary objections, we must determine whether, accepting all material facts pleaded in the complaint and all reasonable inferences therefrom, the law permits recovery. Baker v. Magnetic Analysis Corp., 347 Pa.Super. 188, 500 A.2d 470 (1985). The complaint establishes the following relevant facts. At about 7:00 p.m. on February 16, 1992, Susan Sprenkel was driving her car southbound on State Route 2016. The weather was rainy and foggy, and it was dark; the headlights on Sprenkel’s vehicle were on. As Sprenkel approached Route 2016’s intersection with appellee’s railroad tracks, she saw no lights, reflective devices, flares, mechanical barriers or flagmen to warn her that a train was on the tracks. There was no warning whistle. At this time, a Conrail freight train, pulling several “hopper” cars, was on the tracks passing through the crossing at a very slow speed. Sprenkel drove her vehicle into the side of one of the hopper cars as it passed through the crossing, sustaining severe injmies. Sprenkel filed this lawsuit alleging that Conrail was negligent in failing to warn of the presence of its train on the crossing.

Appellee Conrail filed preliminary objections in the nature of a demurrer, arguing that the “Occupied Crossing Rule” precluded appellants’ negligence action. Briefly stated, the rule provides that a railroad whose train is actually on and moving over a crossing owes no duty to warn the approaching highway traveler; the mere presence of the train in the crossing in front of the driver is sufficient warning. Yolton v. Pennsylvania R.R. Co., 368 Pa. 429, 84 A.2d 501 (1951). See also Hogg v. Bessemer & Lake Erie R.R. Co., 373 Pa. 632, 96 A.2d 879 (1953); Cella v. Pennsylvania R.R. Co., 364 Pa. 82, 70 A.2d 638 (1950); Everetts v. Pennsylvania R.R. Co., 330 Pa. 321, 198 A. 796 (1938); Scarborough v. Lewis, 359 Pa.Super. 57, 518 A.2d 563 (1986), rev’d, in part on other grounds, 523 Pa. 30, 565 A.2d 122 (1989). Appellants opposed the preliminary objections. Holding that Conrail owed no duty to warn of the presence of its train in the crossing, the lower court sustained appellee’s preliminary objections and dismissed the Sprenkels’ action.

Appellants argue that the occupied crossing rule is obsolete in the face of the enactment of the Comparative Negligence Act, 42 Pa.C.S § 7102. The Comparative Negligence Act changed the law with respect to contributory negligence, which previously was a complete bar to a plaintiffs cause of action as a matter of law. Appellants argue that, with the elimination of the contributory negligence bar, the occupied crossing rule is also obsolete. Appellants essentially argue that the occupied crossing rule barred lawsuits by injured plaintiffs who collided with trains that were directly in front of them because these plaintiffs were contributorily negligent as a matter of law, and thus barred from suing the defendant railroad company in a negligence action. Appellants argue that under comparative negligence, because a plaintiffs negligence is not a complete bar to a tort action, the occupied crossing rule no longer survives.

This argument has appeal, particularly because the relevant decisions regarding the occupied crossing rule were issued well before the enactment of the Comparative Negligence Act. In addition, we have found no cases decided under similar facts that confirm the vitality of the occupied crossing rule since the contributory negligence bar was removed. However, we are not free to change the law in this area where the seminal cases were decided, although long ago, by the Pennsylvania Supreme Court.

We are bound particularly because the supreme court has decided against a plaintiff under facts almost identical to those in this case. For example, in Yolton v. Pennsylvania R.R. Co., supra, the court decided that a plaintiffs inability to see a train occupying a crossing due to darkness, fog and an oncoming car’s headlights did not create ultrahazardous conditions that would activate a duty to warn on the part of the defendant railroad. Under such circumstances, the occupied crossing rule was applied to bar the plaintiffs action. Id. See also Wink v. Western Maryland Ry., 116 Pa.Super. 374, 176 A. 760 (1935) (plaintiff cannot recover where he collided with train in crossing in fog and he could not see train until it was too late). Our law is clear that the railroad has a superior right of travel over its crossings, and in the absence of exceptional danger or ultrahazardous conditions at the crossing, no flagman or safety gates are required. Wilson v. Pennsylvania R.R. Co., 421 Pa. 419, 219 A.2d 666 (1966).

More importantly, the enactment of the Comparative Negligence Act does not change the well established rule that negligence cannot be found where the law does not impose a duty. Williams v. Lewis, 319 Pa.Super. 552, 466 A.2d 682 (1983). It is clear that under our cases, the defendant railroad did not have a duty to warn highway travelers of the presence of trains moving through crossings. We are constrained to agree with the conclusion reached in several other jurisdictions that the change in contributory negligence law has no effect on the rule holding that railroads have no duty to warn of the presence of trains that already occupy a crossing. See, e.g., Benjamin v. Atchison, Topeka & Santa Fe R. Co., 225 Ill.App.3d 608, 167 Ill.Dec. 737, 588 N.E.2d 378 (1992) (comparative negligence law does not change conclusion that where there is no duty on part of railroad to warn of occupied crossing there can be no negligence; poor visibility does not create “special circumstances”); Dunn v. Baltimore & Ohio R. Co., 127 Ill.2d 350, 130 Ill.Dec. 409, 537 N.E.2d 738 (1989) (as in Kansas and Iowa defendant railroad should not have duty to guard against negligence of others, despite Comparative Negligence Act); Deaver v. Missouri Pacific R. Co., 968 F.2d 19 (10th Cir. June 16, 1992) (applying Oklahoma law) (even with comparative negligence law, plaintiff still must show that the defendant was negligent; under occupied crossing doctrine defendant has no duty and therefore there is no negligence to compare). Cf. Ritter v. Merenda, 606 N.Y.S.2d 956, 159 Misc.2d 863 (1993) (under comparative negligence standard, occupied crossing rule no longer exists).

It probably would require a relatively small effort on the part of a railroad to place reflectors or other minimal lighting systems on the sides of its cars in order to offer some additional warning to the approaching highway traveler. However, while requiring such precautions on certain “vehicles”, our relevant statutes expressly exclude from these requirements “devices used exclusively on rails or tracks.” 75 Pa.C.S. §§ 102; 4301-4308. Under these circumstances, any change in the law in this area must come either from the legislature or our supreme court, which has perpetuated the occupied crossing rule. For these reasons, we affirm the trial court’s dismissal of appellants’ action.

Order affirmed.

      . Sprenkel’s husband also made a derivative claim for loss of consortium which was dismissed along with Sprenkel’s action.

      . In their opposition to the preliminary objections, and also in their filing with this court, appellants included certain documents regarding the occupied crossing rule, including an expert’s report on visibility. Obviously, these exhibits are outside the record and are not proper for review on preliminary objections or on appeal from the grant of dismissal thereon. Mellon Bank, N.A. v. Fabinyi, 437 Pa.Super. 559, 650 A.2d 895 (1994). Appellees have filed an Application to Strike these matters from the record and a request for attorneys’ fees incurred in filing their application. We note that the trial court clearly stated that the documents were not proper for his review on preliminary objections, and presumably did not consider them in making his determination. Likewise, we have not considered these improper materials in determining this appeal. We deny appellee’s application for attorneys' fees, however, as the instant application was unnecessary; it is clear that our courts are not permitted to consider appellants' improper filing.

      . The Comparative Negligence Act provides in pertinent part:
      (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 .,. where such negligence was not greater than the causal negligence of the defendant or defendants against whom recovery is sought....
      42 Pa.C.S. § 7102(a).

      . Appellee points to Scarborough v. Lewis, supra, decided in 1986, after the Comparative Negligence Act's enactment in 1976, as proof that the Comparative Negligence Act did not abrogate the occupied crossing rule. In Scarborough, which involved injuries to a minor plaintiff who jumped on and off a moving train, this court confirmed in dicta that once a train has entered a crossing its presence is sufficient warning to those intending to use the crossing, and no further duty to warn is owed. Id. at 74, 518 A.2d at 573. However, we note that the cause of action in Scarborough accrued prior to the effective date of the Comparative Negligence Act, and it therefore was not applicable.

      . Railroads do, however, have a duty to warn of approaching trains. Johnson v. Pennsylvania R.R. Co., 399 Pa. 436, 160 A.2d 694 (1960); Sanders v. Pennsylvania R.R. Co., 336 Pa. 424, 9 A.2d 413 (1939); Mussari v. Lehigh Valley R. Co., 149 Pa.Super. 85, 25 A.2d 763 (1942). In addition, railroads have been held liable where they violated a statute prohibiting their standing still on railroad tracks, as they were negligent per se. Coleman v. Dahl, 371 Pa. 639, 92 A.2d 678 (1952); Blaskey v. Pennsylvania R.R. Co., 138 Pa.Super. 465, 10 A.2d 891 (1940); 18 Pa.C.S. § 6907.


author: DEL SOLE, Judge:

text:
    666 A.2d 1103
    Leonard WEISENBERG, Abe A. Morris, and John Runge t/a New Mount Royal Towers Partnership a Pennsylvania General Partnership, Appellee, v. MOUNT ROYAL ASSOCIATES, a Pennsylvania Limited Partnership, Estate of George Bickley, Jr., Deceased, an Individual and General Partner, Adam Kauffman, an Individual and General Partner, Ronald Reichman, an Individual and General Partner, Appellee. (Two Cases) Appeal of MOUNT ROYAL ASSOCIATES, a Pennsylvania Limited Partnership and Ronald Reichman, an Individual and General Partner, Appellant. Appeal of Adam KAUFFMAN, an Individual and General Partner, Appellant.
    Superior Court of Pennsylvania.
    Argued May 24, 1995.
    Filed Oct. 31, 1995.

      David A. Scotti, Pittsburgh, for Mount Royal Associates & Ronald Reichman.
    Alan J. Davis, Philadelphia, for Adam Kauffman.
    Amy Greer, Pittsburgh, for Weisenberg, Morris & Runge.
    Before WIEAND, DEL SOLE and CERCONE, JJ.
   DEL SOLE, Judge:

Before us are related appeals taken following a jury trial and subsequent decision by the trial court granting a motion for judgment notwithstanding the verdict. A judgment in the amount of $746,268.49 was ultimately entered in favor of the plaintiffs from which defendants, Mount Royal Associates and Ronald Reichman, filed an appeal at docket number 2207 PGH 94, and defendant, Adam Kauffman, filed an appeal at 2208 PGH 94.

Plaintiffs brought an action against Mount Royal Associates, a limited partnership, and certain named individuals, who either had served, or were serving as general partners. Plaintiffs sought to recover for non-payment of a promissory note executed in connection with the sale of an apartment complex in the amount of $600,000.00. In the second count of their amended Complaint plaintiffs asserted that the defendants breached an agreement made in connection with the sale and purchase, not to permit any • mortgages, judgments or other liens to be placed against the property, except those which already existed, until the note was satisfied. The defendants filed a Counterclaim alleging that their discovery of certain latent defects in the property constituted a breach of warranties contained in the Agreement of Sale and Purchase, for which damages were demanded.

A jury trial was held and at its conclusion the court granted plaintiffs’ motion for a directed verdict as to both Counts I and II of Plaintiffs’ Complaint. The jury considered the matter of the Counterclaim and ultimately awarded defendants $67,000. However, subsequent to the filing of post-trial motions, the court granted a Judgment N.O.V. in favor of the plaintiffs on the defendants’ counterclaim. These appeals followed.

Appeal at 2207 Pgh 94

An appeal taken by Mount Royal Associates and Ronald Reichman challenges the court’s award of Judgment N.O.V., the directed verdict on Count II of the Complaint and a number of other evidentiary matters. They specifically break down their argument into the following, claims:

A. The trial court improperly granted plaintiffs motion for judgment notwithstanding the verdict on defendants’ counterclaim, ignoring defendants’ evidence of plaintiffs’ liability
B. The trial court erred by refusing to give defendants permission to present their counterclaim damages against plaintiffs.
1. Plaintiffs waived any objections to the specificity of defendants’ counterclaim.
2. The trial court erred by failing to enforce the agreement of counsel
3. The trial court erred by refusing defendants’ request to amend its counterclaim to include the disputed matter.
4. The trial court erred in not granting the defendants’ request for a continuance.
C. The trial court erred in its rulings concerning the admission of documents from the City of Pittsburgh, and the United States Department of Housing and Urban Development.
D. The trial court erred in granting a directed verdict to plaintiffs on Count II of their Complaint.
E. The trial court erred in impermissibly presuming harm from proof of breach of amendment of the agreement of sale and by shifting the burden of proof to defendants to show that no harm occurred.
F. The trial court improperly permitted attorney Ronald Siegel to testify as an expert witness, even though he was not listed as an expert and no report was attached to plaintiffs’ pre-trial statement.

First, we will address the matter of the trial court’s decision to grant a Judgment N.O.V. on the counterclaim. Appellants’ counterclaim was based upon a theory that the sellers breached the Agreement of Sale and Purchase. Appellants focus on the following language of the agreement:

Seller has no knowledge of any defective condition, structural or otherwise, in the building or other improvements on the property.

Appellants sought to establish that the seller concealed a known defect, rusted beams. The jury accepted Appellants position that the plaintiff, Leonard Weisenberg, had actual knowledge of the damaged underground beams, however, the trial court concluded that the evidence offered at trial did not support that finding. The court ruled that there was nothing in the record which, even if believed, would demonstrate actual knowledge.

In support of their position that there was concealment of a known defect, Appellants point to the testimony of Frank Brace, a structural engineer. Mr. Brace was hired by Appellants to inspect the property. He testified that the grade of the soil beneath the structure was higher than was indicated on the original drawings, which created a humid atmosphere around certain steel beams. This condition caused beams to rust and deteriorate.

Appellants also point to the testimony of Daniel Stefanovich, who was hired to perform architectural services in connection with certain repair work the Appellees wished to have done at the time they purchased the apartment building from the original owner. Mr. Stefanovich admitted that steel beams embedded in dirt could rust and fail and advised the court that Mr. Weisenberg would have been told if there were steel support beams which were buried in dirt. Mr. Weisenberg, in his testimony, admitted to being present during renovation work, but denied noticing if any steel was buried in dirt.

This testimony does not support Appellants’ conclusion that Appellee, Mr. Weisenberg, had actual knowledge of damaged underground beams. Mr. Weisenberg testified that he had no knowledge of any defective condition at the site at the time he sold the property to Appellants, and that any deficiencies or defects on the property were coi rected prior to the sale. Mr. Stefanovich, who did testify that Weisenberg would be advised of problems, also testified that he was so advised and that all defects or deficiencies which were identified were repaired. There is nothing in the record which would indicate that Mr. Weisenberg observed himself, or was told of any defective condition which went uncorrected. Because there was not sufficient evidence to sustain the verdict, even after granting Appellants the benefit of every reasonable inference which could be drawn from the evidence, we affirm the trial court’s decision to grant Judgment N.O.V. on Appellants’ counterclaim. Ingrassia Construction Company, Inc. v. Walsh, 337 Pa.Super. 58, 486 A.2d 478 (1984).

The matters raised by Appellants which are listed as B, 1-4 and C, each concern either damages related to the counterclaim, the court’s evidentiary rulings regarding documents admitted at trial, or discretionary rulings concerning the counterclaim. Because we have agreed with the trial court’s decision ruling that there was insufficient evidence offered to support the counterclaim, it becomes unnecessary for us to discuss these matters.

Appellants next raise a question of whether the trial court erred in granting a directed verdict to Appellees on Count II of their Complaint. Count II contained allegations that Appellants breached the Amendment to the Agreement of Sale and Purchase when they permitted liens and/or mortgages to be placed on the Property prior to the payment of the obligation under the Note. Appellants argue that a jury question was created when Appellees failed to produce the original document. They also assert that the jury should have been asked to consider whether the document was a closing document and to resolve a conflict in the language between the Note and the Amendment.

We find no merit to Appellants’ claim because the record demonstrates that there was no conflicting evidence which should have gone to the jury and that the decision to enter a directed verdict was proper. See Beary v. Pennsylvania Electric Company, 322 Pa.Super. 52, 469 A.2d 176 (1983). Appellants offered no evidence to contradict testimony that the Amendment was negotiated by the parties to provide security to Appellees for an unsecured debt, and that it was executed at the closing. Further, there was no real dispute as to authenticity of the document. The originals could not be produced by either side, and an executed copy was provided from the file maintained by the counsel who represented Appellees at the closing.

Regarding the claim that a conflict existed between the language of the Note and the Amendment which should have been resolved by the jury, we note that Appellants have offered a mere four sentence argument with regard to this claim. Without reference to either document, Appellants claim that they conflict because the Amendment prohibited Defendants from placing or causing to be placed any liens against the property while the Promissory Note prohibited Plaintiffs from making any claim against the subject property. According to Appellants’ reasoning: “The Amendment would then only serve the purpose of protecting an unsecured interest in a piece of property that the Plaintiffs are prohibited from using as a basis to have the Note paid.” Appellants’ Brief at 56. The trial court found this argument to be “an absurd contention.” N.T. at 1009. The court stated: “there’s no way that any sensible reading of this rider bars them [Appellees] forever from getting a judgment which would eventually become a lien against the property.” Id. at 1011. Upon review we find no fault with the court’s ruling.

Appellants next argument, which also concerns the court’s ruling with respect to Count II of the Complaint, is equally without merit. Appellants assert that the court erred by impermissibly presuming harm from a breach of the Amendment of the Agreement of Sale. They argue that Appellants were wrongly weighed with the responsibility of showing that no harm occurred. Appellants maintain that the burden should not shift to the defendant until the plaintiff has presented evidence of damages. Fetzer v. Vishneski, 399 Pa.Super. 218, 582 A.2d 23 (1990).

While we do not disagree with Appellants statement of the law, we do disagree with their assessment of the case. Presented before the court was evidence that Appellants had expressly agreed not to permit mortgages or liens to be placed against the Property unless the Promissory note was paid, that the $600,000 Note was not paid and that liens were placed on the property. By virtue of this fact, the liens had a prior recorded security interest and they would be senior to any judgment obtained on the Note. From this information it was proper for the court to conclude that Appellees demonstrated that they had been damaged in an amount equal to the amount of the unpaid Note and to require Appellants to demonstrate otherwise. The court by this action with respect to Count II did not allow a separate recovery for Appellees. The court’s ruling with respect to both Counts I and II permitted Appellees to recover the amount due them on the Note, plus interest.

The final question presented in this appeal concerns the testimony of Ronald Siegel, Appellee-Weisenberg’s counsel at the closing. Appellants contend that he was wrongly allowed to testify as an expert witness even though he was not listed as such and no expert report was attached to Appellees pre-trial statement.

At trial Attorney Siegel was asked to describe the closing, who was present, what documents were executed. Appellants, however object to the following statement made by Siegel, which they characterize as a legal opinion on the legal effect of the amendment on the Agreement of Sale and Purchase:

Well, it was our position that under the circumstances we would be an unsecured creditor, and if there were liens or mortgages placed on the property, then those liens or mortgages would knock us down another notch in terms of a chance of recovering any assets.

N.T. 2/2-12/93 at 460.

Appelleés counter with the argument that the testimony was an explanation for what Siegel hoped to accomplish for his clients and what the intent of the parties was when they entered into the agreement. They maintain that Siegel never was asked, nor did he volunteer, to render his legal opinion as to whether the instruments executed legally accomplished the goals of his client. The trial court accepted this reasoning and stated:

But the only reason its pertinent here is to show that, yes, at the time of closing in this attorney’s view that document had a purpose, and what was that purpose. This is the purpose.

Id. at 430.

The court also noted that the jury could later learn from the court what the documents meant as a matter of law. Id. Under these circumstances we find no error with the conclusion that Attorney Siegel’s testimony did not constitute a legal opinion, and we find no abuse of discretion on the part of the trial court in allowing this testimony to be heard by the jury.

In conclusion we find no merit to the issues presented in this appeal and we affirm the Judgment of the court.

Appeal at 2208 Pgh 1994

By means of this appeal Appellant, Adam Kauffman, seeks to have reviewed the trial court’s decision refusing to vacate a directed verdict against him. The court rejecting his claim that he was not personally responsible because he was not a general partner at the time a Promissory Note was executed on behalf of the partnership.

The Property at issue was sold in 1982 to Mount Royal Associates, a limited partnership. At that time the general partner was George Bickley, Jr. On behalf of the partnership Mr. Bickley executed an agreement to pay $1.6 million dollars, which included an unsecured $600,000 promissory note. The Note stated that it was “due and payable on the eight anniversary of settlement. [October 29, 1990]” Provisions regarding prepayment of the Note were also included.

After the death of Mr. Bickley, Kauffman became the general partner on June 13, 1988. On October 24, 1990 Kauffman executed a document entitled “Certificate of Amendment — Limited Partnership” withdrawing as the general partner and appointing Ronald Reichman as the general partner. It was filed with the Commonwealth on November 2, 1990.

As stated in discussion with the appeal brought at No. 2207 Pgh 1994, plaintiffs instituted suit when the Note was not paid by the Partnership on or before October 29, 1990. After the court directed a verdict in favor of the plaintiffs on counts I and II and against Kauffman individually, as well as the other defendants, Kauffman filed post-trial motions. He requested that the court vacate the directed verdict against him since he was not a general partner at the time the Note was executed. The trial court rejected this request.

At the heart of this issue is an interpretation of the Partnership Code, particularly § 8329. 15 Pa.C.S.A. § 8329. It provides:

§ 8329. Liability of incoming partner
A person admitted as a partner into an existing partnership is liable for all the obligations of the partnership arising before his admission as though he had been a partner when the obligations were incurred except that this liability shall be satisfied only out of partnership property.

The trial court was asked to answer the question of whether this section imposes liability on Kauffman which is to be satisfied only out of partnership property because the obligation on which it is founded arose before his admission, or whether the liability may be satisfied by his personal assets. The court accepted the later interpretation urged by Appellees. The court concluded that the obligation did not arise when the Note was made, but rather it “arose” on October 29, 1990, the date the Note was payable. On this date, Kauffman was a general partner and, according to the trial court’s reasoning, he became personally liable.

We cannot accept the trial court’s interpretation of § 8329. This provision was clearly designed to limit satisfaction of liability for any new partners who come into a partnership after the partnership has incurred an obligation. While these individuals remain liable for partnership obligations which arose before that person’s admission to the partnership, their liability can only be satisfied out of partnership property. In an effort to expand this liability under the facts of this case, Appellees argued to the trial court, that the debt in this case did not arise until it became due. The court accepted the reasoning that the obligation did not arise until this time since plaintiff had no right to seek payment or take any action under the Note until the date the Note became payable. The words of the statute, however, are clear and unambiguous. The statute does not speak in reference to a time when a debt becomes due, rather it specifically refers to obligations which arose before the partner’s admission. The obligation in this case arose when the partnership agreed to pay a fixed sum in return for the property. As of that date there was created an obligation on the part of the partnership. The fact that payment of this obligation was not due until a later date has nothing to do with the time when the obligation arose.

Appellant points out that the trial court’s interpretation of this statute would create an absurd result. We agree. A creditor, when deciding whether to extend credit to a partnership, ordinarily looks at the financial security of the partnership and the existing financial partners. The ability of future partners to satisfy the obligation cannot be contemplated and would play no part in the creditor’s decision. Further, acquiring new investors for a partnership would be much more difficult if they were not protected by the limited liability of § 8329. An individual would not want to expose themselves to personal liabilities for obligations which the partnership incurred before they joined the partnership.

In sum, we find the plain reading and purpose behind § 8329 to be clear and we conclude that Appellant, Adam Kauffman, cannot be held personally liable for payment of the obligation created by the partnership. For this reason we reverse the trial court’s order which allows any judgment against Appellant to be satisfied from assets other than partnership assets and we vacate the Judgment entered against him.

Judgment against Adam Kauffman, personally, vacated.

      . Kauffman's withdrawal as a general partner was not effective until November 2, 1990, the date the Certificate of Amendment was filed with the Commonwealth of Pennsylvania Department of State. See 15 Pa.C.S.A. § 8512(e).


author: JOHNSON, Judge.

text:
    666 A.2d 1108
    COMMONWEALTH of Pennsylvania. v. John T. HARVEY, Appellant.
    Superior Court of Pennsylvania.
    Filed Nov. 8, 1995.

      Terrence J. Marlow, Exton, for appellant.
    John W. Carroll, Assistant District Attorney, West Chester, for Commonwealth, appellee.
    Before KELLY, JOHNSON and CERCONE, JJ.
   JOHNSON, Judge.

In this appeal, we are asked to determine whether a witness’s testimony that he consumed a particular brand of beer, based upon the label of the container, constitutes inadmissible hearsay. In addition, we consider whether the Commonwealth may establish the alcohol content of a malt or brewed beverage by taking judicial notice that certain brands of such beverages are listed in the Pennsylvania Bulletin as containing at least 0.5% alcohol by volume. Because we find that there was no violation of the hearsay rule and that judicial notice was properly taken, we affirm the judgment of sentence.

Beginning in September 1990, John T. Harvey, then 46 years old, provided beer to numerous teenagers at his residence. Further, he required them to stay overnight at his home if they consumed any alcohol. Several minors testified that Harvey also provided them with marijuana. This activity continued until January 1992. In addition, one minor testified that, on two occasions Harvey asked him to sleep in his bed, and that Harvey sexually assaulted him on both occasions. Following a jury trial, Harvey was convicted of nine counts of selling or furnishing liquor or malt or brewed beverages to a minor, sixteen counts of corruption of minors, two counts of indecent assault, two counts of possession of a controlled substance (marijuana), and two counts of possession with intent to deliver a controlled substance (marijuana). The trial court sentenced him to a term of 10 to 23 months’ imprisonment. This appeal followed.

On appeal, Harvey raises the following contentions, which we have renumbered for purposes of review. Harvey argues that (1) the trial court erred in permitting minors to testify that they consumed Busch brand beer, (2) the evidence was insufficient to support his convictions for furnishing brewed or malt beverages to minors, and (3) the jury verdict sheet was prejudicially ambiguous and confusing.

First, Harvey contends that the minors’ testimony that they consumed Busch beer was based on inadmissible hearsay. Specifically, Harvey asserts that the “Busch” label on the cans constituted inadmissible hearsay. Hearsay is defined as “an out-of-court statement offered in court to prove the truth of the matters therein.” Commonwealth v. Smith, 436 Pa.Super. 277, 285, 647 A.2d 907, 911 (1994). “The basis for rejecting hearsay evidence is its assumed unreliability because the declarant is not before the trier of fact and cannot be challenged as to the accuracy of the statement.” Commonwealth v. Rush, 529 Pa. 498, 504-05, 605 A.2d 792, 795 (1992). However, “ ‘[exceptions to the hearsay rule have been fashioned to accommodate certain classes of hearsay that are substantially more trustworthy than hearsay in general, and thus merit exception to the hearsay rule.’” Smith, supra, 436 Pa.Super. at 286, 647 A.2d at 911, quoting Commonwealth v. Haber, 351 Pa.Super. 79, 83, 505 A.2d 273, 275 (1986).

Harvey cites no authority, nor are we aware of any, which stands for the proposition that product names found on containers constitute inadmissible hearsay. However, courts in several other jurisdictions have concluded that product labels admitted to establish the ingredients of the product constitute hearsay. Nonetheless, even where testimony as to the contents of a container based upon the label was found to constitute hearsay, courts have held that product labels fell within an exception to the hearsay rule. For example, in In the Interest of T.D., 115 Ill.App.3d 872, 71 Ill.Dec. 20, 450 N.E.2d 455 (1983), the Appellate Court of Illinois was asked to consider whether the notation on the label of a glue container that listed the contents of the container constituted hearsay when offered to prove the truth of the matter asserted, i.e., that the glue contained a hazardous substance. In that case, a minor appealed his adjudication of wardship following a trial court’s finding that he illegally sniffed an intoxicating substance. At the hearing, a police officer read into evidence a portion of the label that appeared on a tube of glue confiscated from the minor. The label stated that the tube contained the ingredient Toluol, and it carried warnings not to breathe the vapors. Id. at 874, 71 Ill.Dec. at 21, 450 N.E.2d at 456. Defense counsel entered a hearsay objection to the reference to Toluol. The court overruled the objection and admitted the tube of glue into evidence.

On appeal, the minor asserted that because the officer had no personal knowledge regarding the manufacture of the tube or its contents, and because he read from the label in order to prove the identity of its contents, this evidence was inadmissible under the hearsay rule. While the court agreed that such evidence constituted hearsay, it found that an exception existed. First, the court reasoned that the notation on the label, as a statement by the manufacturer as to the contents of the product, “was an assertion of fact by an out-of-court declarant, offered in court by the State, to prove the truth of the matter asserted, i.e. that the glue contained Toluol.” Id. at 875, 71 Ill.Dec. at 21, 450 N.E.2d at 457. The court determined that when offered for this purpose, the notation on the label and the officer’s in-court reading of that notation were hearsay. Id. The court rejected the State’s contention that the label was admissible as an exception to the hearsay rule as a business record or a public document. Nevertheless, the court recognized that both federal and state statutes required that the tube of glue bear a label stating that it contained Toluol, a hazardous substance. Id. at 877, 71 Ill.Dec. at 23, 450 N.E.2d at 458. Therefore, the court held that “the trustworthiness of the label [was] beyond suspicion and though technically it [did] not meet the requirements for a business record, it should be an exception from the rule against hearsay.” Id. See also In re Michael G., 19 Cal. App.4th 1674, 24 Cal.Rptr.2d 260 (1993) (the label on a can of spray paint that listed toluene as an ingredient was admissible as an exception to the hearsay rule because labels were generally used and relied upon as accurate in the course of business).

In another case, the Missouri Court of Appeals determined that statements on the packaging of a needle and vacutainer representing that they were sterile, and statements on an antiseptic label stating that the antiseptic contained 10% iodine solution, constituted hearsay, but were admissible as an exception to the hearsay rule. Moore v. Director of Revenue, 811 S.W.2d 848 (Mo.Ct.App.1991). In Moore, the appellant was charged with driving under the influence of alcohol. At trial, the State introduced evidence concerning a blood analysis taken to determine the appellant’s blood alcohol content. By statute, Missouri requires proof that the person drawing blood for the purpose of determining its alcohol content used a sterile needle in performing that task. Id. at 850; Mo.Rev. Stat. § 577.029 (1986). In addition, Missouri requires proof that a nonalcoholic antiseptic was used to cleanse the skin prior to venipuncture. Id. The phlebotomist who performed the blood analysis testified that he cleansed the puncture site with a solution contained in a small glass vial, which was labeled “Betadine prep.” He further testified that, based upon its label, the vial contained 10% iodine solution and 90% water. The phlebotomist also testified that the needle and vacutainer used to draw the appellant’s blood were packaged and labeled as “sterile.” On appeal, the appellant argued that the trial court erred in admitting the results of his blood analysis because the phlebotomist’s testimony establishing that he followed the required procedures in drawing appellant’s blood was based upon inadmissible hearsay. The court held that the statements on the label and packaging in question were sufficiently reliable and trustworthy on their face to be considered an exception to the hearsay rule. Id. The court reasoned that to hold otherwise would

[require] an array of witnesses ... to establish qualitative analyses of substances as well as production control and packaging in order for the items to be admissible in evidence. At best, but for admitting labels as evidence of the identity and condition of items, gross inconvenience would occur. At worst, items requiring such testimony would, in all practicality, not be admissible because of the difficulty or impossibility in securing the presence of witnesses.

Id. Thus, the court affirmed the appellant’s conviction.

The above-cited cases are distinguishable from the present case. Had the Commonwealth relied upon the Busch label to establish the alcohol content of the beverage, such testimony would have fallen squarely within the dictates of In the Interest of T.D., In re Michael G., and Moore. However, here, the minors’ testimony was not offered to establish the contents of the container. Instead, the Commonwealth only asked the minors what brand of beer they consumed. N.T., January 12, 1993, at 133, 154-55; N.T., January 13, 1993, at 218-219, 253, 275, 470. In response, the minors stated that they drank Busch brand beer. Id. Clearly, this testimony does not establish anything other than the manufacturer of the beverage. Thus, we conclude that the present case is more analogous to U.S. v. Alvarez, 972 F.2d 1000 (9th Cir.1992), cert. denied, — U.S. -, 115 S.Ct. 215, 130 L.Ed.2d 143 (1994). In that case, the appellant possessed a firearm that was inscribed with the words “Garnika, Spain.” He argued that the inscription constituted hearsay when offered to prove where it was manufactured. The Ninth Circuit Court of Appeals considered a prior case, in which it held that a red tape imprinted with the appellant’s name and affixed to a briefcase containing a gun was not hearsay, “as it did not constitute an assertion ‘from which the truth of the matter asserted is desired to be inferred,’ but rather was a ‘mechanical trace’ and a type of circumstantial evidence not excludable under the hearsay rule.” Id. at 1004, quoting United States v. Snow, 517 F.2d 441 (9th Cir.1975). The Alvarez court then concluded that a manufacturer’s inscription on a firearm was similarly not a statement for purposes of the hearsay rule. Id. The court further noted that Federal Rule of Evidence 902(7) does not require extrinsic evidence of authenticity for inscriptions or labels which indicate workmanship, control, or origin. Id. Accordingly, the court concluded that “evidence consisting of a manufacturer’s inscription on a firearm [wa]s not an assertion subject to the hearsay rule.” Id.

We conclude that the Busch label in the present case is analogous to the inscription on the firearm. The minors’ testimony, which was based on the Busch label, served only to establish the name of the manufacturer. Therefore, we find that the label was not an assertion subject to the hearsay rule. Accordingly, we cannot find that the trial court committed any error of law in allowing the minors to testify that they consumed Busch beer at Harvey’s residence.

Next, Harvey contends that the evidence was insufficient to support his convictions for furnishing malt or brewed beverages to minors under 18 Pa.C.S. § 6310.1. He asserts that the Commonwealth failed to prove one element of this offense, namely, that the beverages contained the requisite percentage of alcohol by volume. In evaluating a claim that the evidence was insufficient to sustain a criminal conviction, “we must determine whether, viewing the evidence in the light most favorable to the' Commonwealth as verdict winner, together with all reasonable inferences therefrom, the trier of fact could have found that each and every element of the crimes charged was established beyond a reasonable doubt.” Commonwealth v. Kelley, 438 Pa.Super. 289, 296, 652 A.2d 378, 381 (1994). Moreover, issues of witness credibility “are solely within the province of the jury as trier of fact and ... will not be assailed on review by this [C]ourt.” Id. at 296, 652 A.2d at 382.

Section 6310.1 of the Pennsylvania Crimes Code, entitled Selling or furnishing liquor or malt or brewed beverages to minors, provides, in pertinent part, that

a person commits a misdemeanor of the third degree if he intentionally and knowingly sells or intentionally and knowingly furnishes, or purchases with the intent to sell or furnish, any liquor or malt or brewed beverages to a person who is less than 21 years of age.

18 Pa.C.S. § 6310.1(a). Here, the jury was asked to consider whether the Commonwealth proved that Harvey served malt or brewed beverages to the minors. The Crimes Code defines malt or brewed beverages as “[a]ny beer, lager beer, ale, porter or similar fermented malt beverage containing 0.50% or more of alcohol by volume, by whatever name such beverage may be called.” 18 Pa.C.S. § 6310.6.

Our supreme court has stated that the “percentage of alcohol by volume is an element of the criminal offense charged under the Liquor Code for furnishing malt or brewed beverages to minors.” Commonwealth v. Tau Kappa Epsilon, 530 Pa. 416, 420, 609 A.2d 791, 793 (1992); 47 P.S. § 4-493(1). The definition of “malt or brewed beverages” is identical under both the Liquor Code and the Crimes Code. Compare 47 P.S. § 1-102 with 18 Pa.C.S. § 6301.6. Accordingly, we conclude that the Commonwealth must establish that beverages furnished to minors contained at least 0.5% alcohol by volume in order to sustain a conviction under 18 Pa.C.S. § 6310.1(a). See also Commonwealth v. Weller, 399 Pa.Super. 168, 581 A.2d 1390 (1990) (plurality), appeal denied, 531 Pa. 654, 613 A.2d 559 (1992).

In Tau Kappa Epsilon, supra, eleven fraternities challenged their convictions for furnishing beer to minors in violation of 47 P.S. § 4-493(1), because the Commonwealth did not prove the alcohol content of the beverages. In that case, no chemical analysis or other facts establishing the alcohol content of the beverages were introduced into evidence. Rather, a police investigator testified that when she attended various fraternity parties, she would approach the bar, request a beer, and take the beverage that was served. She stated that the beverages were poured from a tap system. The investigator further testified that she was familiar with the taste of beer, and that the liquids served to her tasted like and appeared to be beer. Our supreme court, however, stated that “[fjamiliarity with the taste and appearance of beer does not provide the certitude achieved by proper scientific analysis. The physical experience of drinking beer does not translate itself into an ability to ascertain what percentage of alcohol is contained in a liquid.” Id. 530 Pa. at 420-21, 609 A.2d at 791. In addition, the court took judicial notice that there are beverages for sale which have the appearance and flavor of beer, but do not contain the requisite amount of alcohol to constitute “malt or brewed beverages” as defined under the Liquor Code. Id. at 420 n. 2, 609 A.2d at 793 n. 2. As a result, the court held that the evidence was insufficient to sustain the fraternities’ convictions because the Commonwealth failed to prove beyond a reasonable doubt that the beverages contained at least 0.5% alcohol by volume. Id. In a footnote, the court indicated that, to sustain its burden of proof, “[t]he Commonwealth need only have preserved the evidence that its agents obtained or introduced evidence that demonstrated that the beverage served was identified as a beverage that contains the requisite percentage of alcohol by volume.” Id. at 421 n. 3, 609 A.2d at 794 n. 3.

In Commonwealth v. Williamson, 532 Pa. 568, 616 A.2d 980 (1992), a minor challenged his conviction for underage drinking because the Commonwealth failed to introduce evidence to prove that he had been drinking a malt or brewed beverage in violation of 18 Pa.C.S. § 6308. Specifically, he asserted that there was no evidence which established that he consumed a beverage containing 0.5% alcohol by volume. In that case, a police officer responded to a report that there was an underage drinking party in progress. Upon arriving at the scene, the officer observed a number of individuals fleeing from the area. The minor was standing next to his car, which had an open can of beer sitting on its hood. The officer also observed some kegs containing malt beverage nearby. The officer did not observe the minor drinking, but he detected the odor of beer on his breath. In considering whether this evidence was sufficient to establish the elements of underage drinking, the court reasoned:

There was no actual observation of the [minor] drinking, possessing, or transporting any alcoholic beverage. The record contains no evidence that [the minor] behaved in a way that exhibited any degree of intoxication. Nor does the record contain any evidence establishing the alcohol content of any beverage that [the minor] might have consumed. Further, there is a reasonable possibility that consumption of a nonalcoholic or very low-alcohol malt or brewed beverage accounted for the odor on [the minor]’s breath.

Id. at 571, 616 A.2d at 981 (1992) (citation omitted). Therefore, the court held that the evidence was insufficient to support the minor’s conviction. See also Commonwealth v. Erney, 212 Pa.Super. 174, 239 A.2d 818 (1968) (minors’ statements that they saw “beer” being served to others and that they were served “beer” was insufficient to prove beyond a reasonable doubt that the beverage served was a “malt or brewed beverage” under the statute).

In the present case, the Commonwealth did not introduce any chemical evidence to prove the alcohol content of the beverages. However, several minors testified that Harvey served them Busch and Busch Light beer. N.T., January 12, 1993, at 133, 154-55; N.T., January 13, 1993, at 218-219, 253, 275, 470. Subsequently, the following exchange took place:

MR. WIGGINS [Attorney for the Commonwealth]: Your Honor, at this time I’d ask you to take judicial notice of the Pennsylvania Bulletin Volume 22 Number 32 August 8th 1992 [at 4146-4155] under the heading Liquor Control Board Products Registered by Manufacturers as Malt or Brewed Beverages. These are malt or brewed beverages that are defined as any beer, lager beer, ale, porter or similar fermented malt beverage containing one half of one percent or more of alcohol by volume. The board intends to publish periodically additions to this list. I would ask you to take judicial notice that the following beers appear on this list, Busch and Busch Light, and I would ask you to take judicial notice that those two beers appear on the list and are on this list because they have been registered with the Liquor Board as having in excess of one-half of one percent of alcohol by volume.
THE COURT: All right. Mr. Marlowe?
MR. MARLOWE [Attorney for the defendant]: Your Honor, I would agree that these beers have been published in the Pennsylvania Bulletin.
* * * * * *
THE COURT: Ladies and gentlemen, the reason this is an important practice is — I should explain it to you. One of the statutes with which the defendant is charged with violating, I can’t remember the exact language, but furnishing or selling liquor or beer to minors. Under the liquor code, malt or brewed beverages is defined as any beer, lager beer, ale or porter or similar fermented malt beverage containing one half percent or more percent of alcohol by volume by whatever [name] such beverage may be called. So it is incumbent upon the Commonwealth to prove the alcoholic content of the beer in question, and that’s the reason why the Commonwealth offered this matter for judicial notice. I will take judicial notice and you may consider it as an established fact that the Pennsylvania Bulletin lists the beers which Mr. Wiggins has named as being registered with the Liquor Control Board as containing greater than point five percent of alcohol by volume.

N.T., January 14, 1993, at 692-94. This Court has stated that “[t]he careful use of judicial notice is especially important in criminal cases. A court may judicially notice an indisputable fact even though it establishes an element of a crime.” In Interest of D.S., 424 Pa.Super. 350, 356, 622 A.2d 954, 958 (1993). Further, “by statute, a trial court shall treat as evidence a factual proposition that is supported by reference to an appropriate governmental publication.” Id. at 358, 622 A.2d at 958. The Pennsylvania Bulletin is one such governmental publication. 45 Pa.C.S., § 506 (the contents of the Pennsylvania Bulletin shall be judicially noticed). Judicially noticed facts are treated as evidence, and, like any other evidence, they may be rebutted. Id. at 356, 622 A.2d at 957-58. However, in the present case, Harvey presented no such rebuttal evidence. Accordingly, we find that this case is distinguishable from Tau Kappa Epsilon, Williamson, and Erney, because, here, the Commonwealth presented evidence that the beverages in question contained the requisite percentage of alcohol content by volume. See also Weller, supra, 399 Pa.Super. at 171, 581 A.2d at 1391 (“Had the ... cans of beer been properly offered and received into evidence at trial, then the sufficiency of the evidence presented could not be questioned, as we could take judicial notice of the fact that Coors Lite beer is a malt or brewed beverage satisfying the statutory definition.”). Therefore, we conclude that the evidence was sufficient to sustain Harvey’s convictions for furnishing malt or brewed beverages to minors.

Finally, Harvey contends that the verdict form was prejudicially ambiguous on the two counts of indecent assault. However, Harvey has not directed this Court to any place in the record where he objected to the form of the verdict slip. As a general rule, a party’s failure to object to the verdict form constitutes waiver of that issue. James v. Nolan, 418 Pa.Super. 425, 614 A.2d 709 (1992). Thus, we find that this issue is waived.

Based upon the foregoing, we affirm the judgment of sentence.

Judgment of sentence AFFIRMED.