text:
    544 A.2d 450
    BELL FUEL CORPORATION v. Anthony CATTOLICO, Jr., Appellee.
    Superior Court of Pennsylvania.
    Argued Feb. 4, 1988.
    Filed June 10, 1988.
    Reargument Denied Aug. 5, 1988.

      Barry M. Klayman, Philadelphia, for appellant.
    Joseph A. Venuti, Jr., Philadelphia, for appellee.
    Before BECK, KELLY and JOHNSON, JJ.
   BECK, Judge:

This is an appeal from an order of the trial court denying appellant Bell Fuel Corporation’s request for a preliminary injunction against its former employee, appellee Anthony Cattolico, Jr. Bell sought a preliminary injunction to restrain Cattolico from soliciting Bell’s customers, using or disclosing Bell’s confidential business information and retaining Bell’s confidential business records in alleged violation of the law of unfair competition and the terms of Cattolico’s employment agreement with Bell. In pertinent part, the employment agreement provides as follows:

Employee covenants and agrees that Employee will not, during the term of his employment or thereafter, for any reason or purpose whatsoever, use for Employee’s personal benefit, or disclose, communicate or divulge to, or use for the benefit, direct or indirect, of any person, firm, association or company other than the Company, any information as to business methods, business policies, procedures, techniques, research or development projects or results thereof, trade secrets, knowledge and processes used or developed by the Company, any addresses of customers of the Company, data on or relating to past, present or prospective customers of the Company or any other confidential information relating to or dealing with the business operations or activities of the Company, made Employee or learned or acquired by Employee while in the employ of the Company. Employee acknowledges that such confidential information is the sole and exclusive property of the Company and maintenance of the confidentiality thereof is essential to the Company’s ability to conduct its business.
Employee covenants and agrees that Employee will not, during the term of Employee’s employment or thereafter, contact or solicit customers of the Company except on behalf of the Company or solicit employees to leave the-Company.
[Upon termination of employment, employee will] [deliver to the Company any and all records, contracts, lists of names or other customer data and any other papers which have come into Employee’s possession by reason of Employee’s employment with Company or which Employee holds for the Company, irrespective of whether or not any of said items were prepared by Employee, and Employee shall not retain memoranda or copies of any of said items.

The procedural history of this matter can be briefly stated as follows. On July 17, 1987, Bell contemporaneously filed a Complaint in Equity and a Petition for Special and Preliminary Injunction alleging breach of the restrictive covenant and seeking enforcement thereof as well as damages. The Petition was supported by an affidavit of William A. Selvagn, Sales Manager of Bell and Cattolico’s supervisor. On that date, Judge Diaz issued a Rule to Show Cause why the preliminary injunction should not issue, returnable on July 21, 1987. Actually, the so-called hearing on the preliminary injunction was not conducted until July 28, 1987, before a different judge.

At the hearing, counsel for appellee handed to the court and opposing counsel appellee’s Response to the Petition for Special and Preliminary Injunction, accompanied by an affidavit of appellee. The trial court then elicited from counsel opening remarks and soon reached the conclusion that the court might be able to resolve the preliminary injunction matter on either “summary judgment or demurrer” since counsel for appellee raised several arguments in support of entry of judgment for appellee as a matter of law. Therefore, the trial court decided that although it would allow the testimony to begin and to continue until shortly before the end of that hearing day, the court would then hear argument on the issues that might entitle Cattolico to denial of the injunction as a matter of law. The court did not make clear exactly what procedural posture it would then consider the matter to be in. The court merely stated that it considered the arguments loosely to be either in support of a demurrer or a motion for summary judgment. The court committed itself to rendering decision on those issues by the following day. The court specifically stated that in so deciding, it would limit its consideration to only the Petition and Response and supporting affidavits and memoranda of law. It would not consider any testimony elicited at the hearing.

The court then allowed Bell to call its first witness, Cattolico, who was called as on cross. After the examination of Cattolico was complete, the court heard oral argument on what it then called appellee’s “motion for summary judgment” and terminated the hearing pending decision on the motion. The next day, the court rendered its written decision granting what it called “summary judgment” to appellee and denying appellant’s Petition for Preliminary Injunction. The court found as a fact that:

1. Cattolico was employed by Bell on September 17, 1981 and, ancillary to that employment, entered into a covenant not to compete and/or divulge which “inter alia prohibited him from contacting or soliciting customers” of Bell except on behalf of Bell either during or after his employment, and which contained no territorial or time limitations.
2. Cattolico voluntarily terminated his employment with Bell on June 16, 1987, went to work for a competitor of Bell and contacted customers of Bell to solicit their business for his new employer.

The court made the following conclusions of law:

1. The covenant not to compete, which fails to specify time or territorial limits, is void as unreasonable in that it imposes an unconscionable restraint on appellee’s ability to pursue his occupation.
2. The covenant may not be modified because it is unreasonable on its face.
3. Appellee did not divulge any trade secrets of Bell’s.
4. Appellant is not entitled to an injunction because it has failed to demonstrate a right to relief which is clear and free from doubt.

A trial court has broad discretion in granting or denying a preliminary injunction. We will reverse such a decision only if the trial court abused its discretion or committed a palpable legal error. Merrill Lynch, Pierce, Fenner & Smith v. Moose, 365 Pa.Super. 40, 47, 528 A.2d 1351, 1355 (1987) (citing, inter alia, Unionville—Chadds Ford School District v. Rotteveel, 87 Pa.Commw. 334, 336-7, 487 A.2d 109, 111 (1985)). We must uphold the trial court’s decision if it can be sustained on “any apparently reasonable ground.” Id.; John G. Bryant Co., Inc. v. Sling Testing and Repair, Inc., 471 Pa. 1, 369 A.2d 1164 (1977); Sidco Paper Co. v. Aaron, 465 Pa. 586, 351 A.2d 250 (1976); Air Products and Chemicals, Inc. v. Johnson, 296 Pa.Super. 405, 442 A.2d 1114 (1982); Boyd v. Cooper, 269 Pa.Super. 594, 410 A.2d 860 (1979).

The trial court must not grant a preliminary injunction unless the petitioning party has satisfied the following rigorous standard:

[Fjirst, that is is necessary to prevent immediate and irreparable harm which could not be compensated by damages; second, that greater injury would result by refusing it than by granting it; and third, that it properly restores the parties to their status as it existed immediately prior to the alleged wrongful conduct____ Even more essential, however, is the determination that the activity sought to be restrained is actionable, and that the injunction issued is reasonably suited to abate such activity. And unless the plaintiffs right is clear and the wrong is manifest, a preliminary injunction will not generally be awarded____

City of Philadelphia v. District Council 33, 112 Pa. Commw. 90, 535 A.2d 231, 236 (1987) (quoting New Castle Orthopedic Associates v. Burns, 481 Pa. 460, 464, 392 A.2d 1383, 1385 (1978)); Albee Homes, Inc. v. Caddie Homes, Inc., 417 Pa. 177, 181, 207 A.2d 768, 770 (1965).

Appellant first argues that the proper determination of this appeal depends in part on a clear understanding of the procedural posture of the case. We agree that the procedural aspect of this case is significant. Appellant contends that in fact, the trial court granted appellee a demurrer, not summary judgment, to appellant’s Petition for Preliminary Injunction, and that our review must, therefore, be governed by the standards applicable to review of a demurrer. Accepting this argument, we would take every well-pleaded fact in appellant’s petition as true, accept all reasonable inferences therefrom, but draw our own conclusions of law. Gekas v. Shapp, 469 Pa. 1, 364 A.2d 691 (1976). Appellee counters that we should focus our attention instead on Equity Rule 1531, which states:

In determining whether a preliminary or special injunction should be granted and whether notice or a hearing should be required, the court may act on the basis of the averments of the pleadings or petition and may consider affidavits of parties or third persons or any other proof which the court may require.

Pa.R.Civ.P. 1531(a).

Appellee argues that we should construe the trial court’s action in deciding this matter based solely on the pleadings and two affidavits as merely an exercise of the trial court's ability under this rule to decide a preliminary injunction matter using whatever proof the court has or needs. Thus, appellee appears to assert that a trial court has the discretion to schedule a hearing but then terminate it when the defendant’s opening remarks suggest that there may be a legal bar to entry of the injunction, to refuse to hear the evidence, and then to render a final decision denying the preliminary injunction based on the court’s perception of the facts based only on the pleadings and two affidavits. On appeal, appellee asks us to assume the facts to be not only as the trial court found them, but also as asserted in its Response and supporting affidavit, despite the fact that many of the factual allegations in appellee’s documents are disputed by Bell.

Although the analysis of both parties is wrong, we find the appellee to have strayed further from the true path than has appellant.

We are unable precisely to categorize the trial court’s action here as either the grant of a demurrer or summary judgment. Given the preliminary nature of the proceeding we are reviewing, we doubt whether either term is, in fact, appropriate. In any event, the trial court cannot be construed to have granted a demurrer to appellee since the court considered factual affidavits and a responsive pleading, whereas a demurrer responds only to the initial pleading and to the respondent’s averment that the facts in the initial pleading are true but do not state a cause of action. However, it is equally clear that the trial court did not follow the procedure for granting summary judgment because the record reveals that appellee never actually submitted such a motion and, thus, appellant had no opportunity to respond thereto. Pa.R.C.P. 1035. Moreover, in this case there is no doubt that given the conflicting averments in the Petition, Response and affidavits, there were material facts in dispute. For example, Cattolico denied ever having signed the employment agreement on which Bell based its claim. Thus, summary judgment could not possibly be granted.

What the trial court actually appears to have done is to have assumed and found certain of the relevant facts to be as Bell alleged. For example, it found that Cattolico had signed the agreement and that its terms were as Bell asserted. It then determined that based on those facts alone, Bell was not entitled to a preliminary injunction based on the restrictive covenant in the agreement because it was unreasonable and unenforceable as a matter of law. As to this issue, we agree with the trial court that no evidentiary hearing was required for it to be able to decide whether, as a matter of law and as if on demurrer, accepting all the facts pertinent to this issue to be as Bell averred, the covenant was void on its face. We differ with the trial court, however, as to its legal conclusion that on those facts, the covenant was void and unmodifiable.

As to the other the pertinent issues, namely whether Bell was entitled to a preliminary injunction to protect its confidential business information even outside of the restrictive covenant and to a return of its confidential business records, the court made no findings of material fact, but did draw the factual conclusion that Cattolico had not divulged any of Bell’s trade secrets and that no injunction on that ground would issue.

The procedure used by the trial court makes appellate review difficult. It cannot be categorized under our rules of procedure. In any event, we conclude that under the circumstances of this case, it was necessary for the court to hold a full evidentiary hearing on the preliminary injunction petition as contemplated by the prior order of Judge Diaz in this matter. The result of the trial court’s action was a premature adjudication of one of the crucial issues in this matter, i.e., whether Bell had a right to a preliminary injunction enjoining Cattolico from using or divulging any of Bell’s confidential business information even in the absence of an enforceable restrictive covenant. The trial court’s failure to conduct a hearing to obtain the factual information necessary to reach a decision on this issue resulted in its determining that no such protection would be afforded Bell before Bell had an opportunity to attempt to demonstrate the precise nature of the information that Cattolico had, the circumstances under which he obtained it, the significance of that information in Bell’s industry and the harm Bell would suffer if the information was used or divulged. As will become clear in our further discussion below, all of this information is of central importance to a determination of whether a preliminary injunction was warranted.

We agree with appellee that there is no absolute right to a hearing on a preliminary injunction. Franklin Decora tors, Inc. v. Hende-Jon Furniture Showrooms, Inc., 339 Pa.Super. 449, 489 A.2d 246 (1985). However, it is equally true that the decision whether to hold a hearing is committed to the discretion of the trial court and will be reversed where that discretion is abused. Id., 339 Pa.Superior Ct. at 451, 489 A.2d at 247. Moreover, our rules and our case law clearly indicate that a hearing is customarily held and is the preferred procedure. It is the rare preliminary injunction that can correctly be denied without a hearing and no preliminary injunction can be granted and continued without a hearing, whether before or after the initial grant. Pa.R.C.P. 1531; Goodrich-Amram 2d, Standard Pennsylvania Practice, Vol. 5, at 267; Soja v. Factoryville Sportsmen’s Club, 361 Pa.Super. 473, 522 A.2d 1129 (1987).

There are numerous cases where the trial court has utilized a procedure substantially like that employed here, cutting short a previously scheduled hearing on a preliminary injunction and refusing the injunction as a matter of law, where our appellate courts have found the decision to be premature and have reversed and remanded for a full evidentiary hearing. See, e.g., Allegheny County v. Milk Control Commission, 417 Pa. 22, 207 A.2d 838 (1968) (determination that injunction should be refused because plaintiff had adequate remedy at law should have been made only after evidentiary hearing; denial of preliminary injunction reversed and remanded for hearing); Boyd v. Cooper, 269 Pa.Super. 594, 410 A.2d 860 (1979). See also Pubusky v. D.M.F., Inc., 428 Pa. 461, 239 A.2d 335 (1968) (court reverses premature grant of preliminary injunction before completion of scheduled hearing).

Since our review of the record before us has convinced us that the premature termination of the hearing by the court below led it to commit legal error in the determination of one crucial issue, i.e., Bell’s right to protection of its confidential business information outside of the covenant, we are required to reverse and remand for an evidentiary hearing. As to the other issue determined by the court, regarding the enforceability and modifiability of the covenant itself, since we find that the court erred in finding the covenant void on its face and unmodifiable, we must also reverse and remand for consideration of whether an appropriately limited injunction to enforce the covenant is otherwise warranted.

I. Enforcement and Modification of Restrictive Covenant

Bell’s first ground for requesting a preliminary injunction is the present and threatened future violation by Cattolico of the restrictive covenant in his employment agreement. This covenant is found in paragraph two of the agreement and provides:

Employee covenants and agrees that Employee will not, during the term of Employee’s employment or thereafter, contact or solicit customers of the Company except on behalf of the Company or solicit employees to leave the Company.

The standard for enforcement of a restrictive covenant has often been stated as follows:

The law in this Commonwealth for more than a century has been that in order to be enforceable a restrictive covenant must satisfy three requirements: (1) the covenant must relate to either a contract for the sale of goodwill or other subject property or to a contract for employment; (2) the covenant must be supported by adequate consideration; and (3) the application of the covenant must be reasonably limited in both time and territory. Maintenance Specialties v. Gottus, 455 Pa. 327, 331, 314 A.2d 279, 281 (1974) (Jones, C.J., concurring); Jacobson & Co. v. International Environmental Corp., 427 Pa. 439, 235 A.2d 612 (1967); Capital Bakers, Inc. v. Townsend, 426 Pa. 188, 231 A.2d 292 (1967); Barb-Lee Mobile Frame Co. v. Hoot, 416 Pa. 222, 206 A.2d 59 (1965); Morgan’s Home Equipment Corp. v. Martucci, 390 Pa. 618, 136 A.2d 838 (1957). See also Restatement of Contracts § 515(e) (1932).

Piercing Pagoda, Inc. v. Hoffner, 465 Pa. 500, 506-7, 351 A.2d 207, 210 (1976).

In this appeal, we are concerned only with the third requirement, i.e., reasonableness. Although all restrictive covenants are subject to the reasonableness standard, a restrictive covenant that fails to meet this prima facie standard of enforceability is not necessarily void. Our Supreme Court has stated,

... where the covenant imposes restrictions broader than necessary to protect the employer, we have repeatedly held that a court of equity may grant enforcement limited to those portions of the restrictions which are reasonably necessary for the protection of the employer.

Sidco Paper Co. v. Aaron, 465 Pa. 586, 595, 351 A.2d 250, 254 (1976) (citing, inter alia, Jacobsen & Co. v. International Equipment Corp., supra; Barb-Lee Mobile Frame Co. v. Hoot, supra (“The man who wildly claims that he owns all the cherry trees in the country cannot be denied protection of the orchard in his backyard.”)). Case law empowers Pennsylvania courts to grant artial enforcement of an overbroad covenant either by excising offensive portions of the covenant or by adding language. Id., 465 Pa. at 596, 351 A.2d at 255. In other words, a court of equity may not only remove an offensive term, but may supply a new, limiting term and enforce the covenant as so modified. This unique power to modify the parties’ contract in the restrictive covenant context arises from the general equity powers of the court. Barb-Lee Mobile Frame Co. v. Hoot, 416 Pa. at 224-25, 206 A.2d at 54. In order to do equity between the parties by balancing the interest of the employee in his occupation and of the employer in his established business, the court must have the flexibility to award the employer reasonable protection, although not all the protection for which he may have contracted.

The sole exception to the foregoing rule of modification and enforcement is found in Reading Aviation Service v. Bertolet, 454 Pa. 488, 311 A.2d 628 (1973), the case relied upon by the trial court in refusing to enforce the covenant in the instant matter. In Reading, the covenant provided that both during employment and at all times thereafter, the employee could not be active in or assist any business competitive with the employer’s. The court held this covenant void on its face and refused even limited enforcement thereof, stating that such an overbroad covenant imposed an unconscionable burden on the employee by excluding him from pursuing his chosen occupation and was far more restrictive than necessary to protect the employer. Id., 454 Pa. at 493, 311 A.2d at 630. As later interpreted by the Supreme Court in Sidco Paper Co. v. Aaron, 465 Pa. 586, 351 A.2d 250 (1976), Reading prohibits the enforcement of any covenant that is so broad as to evidence an intent by the employer either to oppress the employee or foster a monopoly, both of which are illegitimate purposes. Id., 465 Pa. at 599, 351 A.2d at 257.

In applying these principles to the case before us, of central significance is the question of what actually constitutes the covenant in this case. Cattolico argues that all of the agreement reproduced above is a restrictive covenant subject to the standard of reasonableness and that the covenant, as so defined, is so unreasonable as to be unenforceable under Reading Aviation. Cattolico argues that the covenant is unreasonable because it contains no territorial or temporal limitations on its face and, thus, imposes an unconscionable restraint on Cattolico’s ability to pursue his occupation while far exceeding Bell’s need for protection. As appellee describes the covenant in its appellate brief:

[the covenant prohibits Cattolico] not only during the course of his employment but “thereafter” into eternity “for any reason or purpose whatsoever” from using any information obtained by him while working for Bell to the benefit of anyone anywhere ... and specifically enjoins the divulging of “any names and addresses of past, present or prospective customers of [Bell] ...” In paragraph [2] of the employment contract, Cattolico is forbidden again during the term of his employment with Bell and “thereafter” from contacting or soliciting customers of Bell ... [it] bars Cattolico from contacting not only present customers of Bell but also any past, future or prospective customer which includes every potential resident or commercial establishment in need of fuel in an amorphous and undefined area....

Brief for Appellee at 17-18.

The foregoing quoted language reveals that appellee’s argument is based not only on a misapprehension as to what portion of the agreement actually is a restrictive covenant subject to the reasonableness standard, but also on a misapprehension of the law of restrictive covenants.

In actuality, only paragraph 2 of the agreement can be construed as a restrictive covenant to be tested for reasonableness. Only paragraph 2 prohibits Cattolico from directly competing with Bell by soliciting or contacting Bell’s customers. The remaining portions of the agreement are not non-compete agreements. The remaining portions are a confidentiality or non-disclosure agreement and a return of records agreement. Both protect the property rights of Bell in its business information.

Thus, the restrictive covenant that Bell sought to enforce in this case merely prohibited Cattolico from soliciting or contacting Bell’s “customers”. The sweeping restriction on the use of Bell’s confidential information appearing in paragraph one of the agreement, which restricts the use of information regarding “past, present and prospective” customers, is not subject to the reasonableness standard. As we will much more fully discuss hereafter, an employer is entitled to protection of its confidential information to the extent that the information is of such a character as to be protectible under the common law of unfair competition or agency. Spring Steels, Inc. v. Molloy, 400 Pa. 354, 162 A.2d 370 (1960); Morgan’s Home Equipment Corp. v. Martucci, supra. This protection is afforded with or without a covenant addressing the subject. If the parties do execute an agreement that expressly provides such protection, it is not limited by the reasonableness criteria applicable to a restrictive covenant.

Having defined the actual covenant as being simply this restraint on solicitation of customers and employees, we may now proceed to review the reasonableness, i.e., enforceability of that covenant.

It is clear that the covenant contains no express temporal or geographic limitations. However, we find that the only proper and reasonable construction of the covenant reveals an implied geographic limitation. Since the covenant only prohibits Cattolico from soliciting customers (its prohibition of employee solicitation not being at issue here), and does not generally restrain Cattolico from engaging in any other activity or in any business that is competitive with Bell, the actual geographic scope of the covenant is easily determined to be the territory in which Bell’s actual customers are located. Although we cannot define this territory based on the record before us, which contains no list of customers, the trial court certainly can make this determination simply by receiving the appropriate evidence on remand. If this geographical limitation is not overly broad, then the court can simply enforce it. If it is too broad, the court can modify the agreement to provide a more reasonable geographical limitation.

The fact that the trial court was able to construe this covenant as being inherently geographically limited in scope argues forcefully against a finding that the covenant is void as unreasonable on its face. In a highly analogous situation, the Supreme Court reached a similar conclusion. In Plunkett Chemical Co. v. Reeve, 373 Pa. 513, 95 A.2d 925 (1953), the Court addressed the enforceability of a general restriction on a former employee’s competitive activities which had no express geographical limit. The Court determined that the covenant was nevertheless reasonable when given a “reasonable construction.” Taking into account all of the circumstances of the case, as we must in the matter sub judice, the Plunkett Court found that because the employee in question had a defined sales territory during his employment, the parties could be held to have actually intended to restrain his post-employment activities only in the same territory. Id., 373 Pa. at 515-17, 95 A.2d at 926-27. See also John G. Bryant Co. v. Sling Testing & Repair, Inc., 471 Pa. 1, 369 A.2d 1164 (1977).

Applying this principle of construction to the instant case, it is even easier to find the covenant to be reasonably limited in geographic scope than it was in Plunkett, since the covenant here is not a general restraint at all and applies by its very terms only to solicitation of Bell’s actual customers. Thus, unlike the Plunkett Court, we need not refer to the factual situation at the time of the execution of the covenant to supply a geographic limitation based on our perception of the parties’ intent. We need only read the covenant itself to ascertain the clear intent of the parties to restrict only one of Cattolico’s activities, which by its very nature could only take place in the geographic area where Bell’s customers are located.

Given this inherent geographic limitation, coupled with the fact that the covenant restricts only one activity, we view the trial court’s finding of a sufficient analogy between this case and Reading Aviation to be legal error. Although the trial court has not given us the benefit of its legal analysis in the form of an opinion supporting its conclusions of law, we can only conclude that it saw Reading as per se preventing the enforcement of the restrictive covenant in this case. In fact, Reading merely requires us to refuse to enforce any covenant that is manifestly unreasonable in light of the employer’s needs and is excessively burdensome to the employee in pursuing his occupation. Thus, the question is overall reasonableness, to be judged against the employer’s needs and the impact on the employee. In the instant case, the impact on the employee is limited to the inability directly to lure away Bell’s customers. If Cattolico wishes, he may set up shop next door to Bell in a directly competitive business or he may work for any of Bell’s competitors. He simply may not solicit Bell’s customers or use of disclose Bell’s protectible confidential business information. Thus, the covenant is not prima facie unreasonable within the holding of Reading Aviation.

We reverse the trial court’s conclusion that the covenant is void on its face and unmodifiable. We remand for the conduct of a hearing to ascertain whether Bell can otherwise fulfill the requirements for the grant of a preliminary injunction and, if it can, for the fashioning of an injunction appropriately limited in time and geographic scope.

II. Protection of Confidential Information.

In addition to seeking enforcement of the restrictive covenant prohibiting direct solicitation of customers, Bell also sought protection of its confidential business information, largely consisting of customer information, by way of preliminary injunction against the use or disclosure thereof. This is the subject of paragraph one of the agreement reproduced above. It is also loosely the subject of paragraph three, regarding return of actual confidential records allegedly taken by Cattolico upon his resignation from Bell’s service.

As to this issue, the trial court drew a single conclusion of law. Although the court found that Cattolico had solicited Bell’s customers, thus presumably using the allegedly confidential information as to the names and addresses of those customers, as well perhaps as other information regarding them, the court nevertheless concluded that “Cattolico’s actions further did not result in the divulging of any particular trade secrets of Bell and thus, were not violative of principles of agency or unfair trade practices law.” It cited Morgan’s Home Equipment v. Martucci, supra, in support.

As we have indicated above, it is as to this issue that the trial court’s use of a hybrid and undefined procedure led it to error in rendering a premature adjudication based on insufficient facts. As a summary review of the law applicable to protection of confidential information will reveal, in the present posture of this case, there are clearly disputed material facts as to Bell’s right to a preliminary injunction to protect its allegedly confidential information. The trial court was, therefore, wrong to determine this issue by concluding, based solely on denials and allegations of fact contained in Cattolico’s Response and affidavit, that Cattolico had not and, impliedly, would or could not use or divulge any of Bell’s protectible business information.

Pennsylvania law provides an employer the right to the protection of its confidential information under certain defined circumstances. MacBeth-Evans Glass Co. v. Schnelbach, 239 Pa. 76, 86 A. 688 (1913). Generally, the information must be a particular secret of the employer, not a general secret of the trade, and must be of peculiar importance to the conduct of the employer’s business. Given the existence of such confidential information, the legal right to protection may arise either from an express covenant protecting the secret or may be implied from the confidential relationship between the employer and employee in which the information was conveyed. Id. See also Felmlee v. Lockett, 466 Pa. 1, 351 A.2d 273 (1976).

Customer information in particular may be subject to such protection. The seminal case defining and explaining such protection'ls Morgan’s Home Equipment, cited by the trial court. There, the Supreme Court opined:

In many businesses, permanent and exclusive relationships are established between customers and salesmen. The customer lists and customer information which have been compiled by such firms represent a material investment of employers’ time and money. This information is highly confidential and constitutes a valuable asset. Such data has held to be property in the nature of a ‘trade secret’ for which an employer is entitled to protection, independent of a non-disclosure contract, either under the law of agency or under the law of unfair trade practices.
We agree that confidential customer data are entitled to protection as a trade secret within the meaning of the MacBeth-Evans rule.

Morgan’s Home Equipment, 390 Pa. at 623, 136 A.2d at 842. See also Van Products Company v. General Welding & Fabricating Company, supra; Sidco Paper Co. v. Aaron, supra.

Of course, whether customer information is protected depends upon whether the information involved in the particular case fulfills the general standard for protection as outlined in MacBeth-Evans and numerous like cases. Where the information is not a particular secret belonging to the employer, developed through its efforts or investment, and of value to the continuation of the employer’s business, no protection is afforded. For example, in Carl A. Colteryahn Dairy, Inc. v. Schneider Dairy, 415 Pa. 276, 203 A.2d 469 (1964), the court refused to afford the employer protection of certain dairy delivery route listings because it found that the lists themselves were not a particular secret, being common knowledge and easily discoverable, and that the underlying customer relationships were actually developed and preserved by the former employees themselves. Id., 415 Pa. at 281-83, 203 A.2d at 472-73. The Court distinguished the customer information at issue in Morgan’s Home Equipment,which had received protection, because it was highly confidential and because the customer relationships were developed at high cost to the employer and were of great continuing importance to his business. Id., 415 Pa. at 284, 203 A.2d at 473. The Colteryahn Court also noted the existence of confidentiality agreements covering the customer data in Morgan’s Home Equipment which were absent in Colteryahn and noted that the "... presence of a non-disclosure covenant would be indicative of the confidential nature of the data protected ...” Id., 415 Pa. at 283 n. 6, 203 A.2d at 473 n. 6; Morgan’s Home Equipment, 390 Pa. at 625 n. 5, 136 A.2d at 843 n. 5 (non-disclosure covenant does not create right to protection, but is evidence of confidential nature of data involved); Air Products and Chemicals, Inc. v. Johnson, 296 Pa.Super. 405, 442 A.2d 1114 (1982) (confidentiality agreement is evidence of confidential relationship between parties). See also Spring Steels, Inc. v. Molloy, supra (customer lists not protected where easily discoverable or found in trade directories); Agra Enterprises, Inc. v. Brunozzi, 302 Pa. Super. 166, 448 A.2d 579 (1982) (customer lists that are publicly available are not particular secrets of the employer entitled to protection).

In the instant case, Bell alleged that in the course of Cattolico’s employment, he was privy to large amounts of Bell’s customer and other business information, and that this information was confidential and of value to Bell in its particular industry. It also offered the confidentiality agreement as evidence of the secret nature of the information and of the existence of a confidential relationship with Cattolico as to that information. Cattolico responded that he was not privy to confidential information, and that in the fuel supply business such information was readily known by competitors. Apparently accepting Cattolico’s version of the facts, the trial court found no trade secrets had been, or presumably could be, used or divulged by Cattolico.

This conclusion was clearly error in light of the close factual analysis that needed to be made prior to determining this issue. The trial court did not have, based solely on the Petition, Response and conflicting affidavits, a sufficient basis to conclude as a matter of law that Cattolico had not and could not divulge or otherwise use protectible customer or other information of Bell’s which had been disclosed to Cattolico in the course of a confidential relationship. It is entirely possible that, given the chance to present its evidence at a full hearing, Bell could have fully substantiated its pleaded assertion that its information met the standard set forth in MacBeth-Evans and Morgan’s Home Equipment, that Cattolico was in possession of that information as a result of a confidential relationship between he and Bell, and that Cattolico had or threatened to cause Bell irreparable harm through the use or disclosure thereof.

The trial court’s denial of a preliminary injunction to protect Bell’s allegedly confidential business information is reversed. We remand for the conduct of a full hearing on this issue.

Reversed and remanded for further proceedings consistent with this Opinion. Jurisdiction is relinquished.

      . This is an appeal as of right from an interlocutory order pursuant to Pa.R.A.P. 311(a)(4).

      . Although Cattolico admitted only to having signed an agreement not to divulge confidential information and stated that he "did not recall” having signed the agreement reproduced above, the trial court found as a fact that Cattolico had signed an agreement "not to divulge and/or compete.” Since this is the title of the agreement reproduced above, we assume that the trial court meant to find that Cattolico signed that agreement and we premise our analysis of this case, as the trial court appears to have done, on that assumption.

      . Appellee also asserts that appellant has waived its right to object to the procedure used by the trial court because it did not object to the court’s rendering a preliminary decision as to whether the injunction should be denied as a matter of law when the court announced it would do so at the hearing. This is clearly without merit. At the hearing, the trial court never clarified exactly what it was doing. It did not clearly state whether it was deciding a demurrer, and would accept the facts as appellant represented them, or deciding a summary judgment motion, and would only hold for appellee if it found no material facts in dispute.
      How we can expect appellant to object in precisely the correct fashion to a procedure even we cannot categorize? What appellant did at the hearing was to present its argument that appellee should not prevail because there was no absolute legal impediment to the grant of a preliminary injunction appearing on the basis of the documents then before the trial court. In so arguing, appellant clearly assumed that the trial court would not deny the preliminary injunction by accepting as true representations of material fact in appellee’s affidavit which appellant disputed. Appellant assumed, correctly, that the trial court would either take as true the facts as pleaded in the Petition and determine whether any of the asserted grounds for relief were barred as a matter of law or, as to any issue the resolution of which depended on disputed facts, that the court would refuse appellee a decision as a matter of law and would proceed to receive the necessary evidence. We will not charge appellant with having waived an objection to the trial court following a procedure which was never fully described and which was both unanticipated and incorrect.

      . In analyzing the enforceability of the covenant, i.e. its reasonableness, we note that we are focussing on the first prong of the standard for a preliminary injunction which requires the petitioner, here Bell, to demonstrate that its right to relief in the underlying action is clear. See City of Philadelphia v. District Council 33, and other authorities cited, supra. Since the trial court in the instant matter focussed only on this aspect of the preliminary injunction request, and denied relief on that ground alone, we need not consider on this appeal whether Bell also satisfied the remaining requirements of irreparable injury, lack of adequate remedy at law, and greater injury resulting from denial of injunction than from grant thereof. Since we find error in the trial court’s finding, at a stage equivalent to demurrer, that Bell’s right to relief was not sufficiently clear, on remand the trial court will need to consider these remaining elements, to the extent that appellee has properly challenged them in its Response to the Petition for Preliminary Injunction.

      . Bell appears to concede that paragraph 2 of the agreement, regarding customer solicitation, is a restrictive covenant subject to the test of reasonableness. We, therefore, are not confronted with the task of deciding that issue. Were we asked to do so, however, we note that the status of such a limited restriction, which goes only to the limited activity of direct solicitation of customers, and which does not generally inhibit an employee from engaging in his former employer’s business anywhere or at any time, is not free from doubt. We find at least the suggestion in Morgan’s Home Equipment, supra, that such a covenant is merely an adjunct means of protecting the employer's confidential customer information and, therefore, is not a general non-compete which must fail if not reasonable or subject to modification and limited enforcement. We find this suggestion in the fact that the Morgan Court enforced employment agreements which prohibited three activities — disclosure of confidential information, solicitation of customers, and general competition with the former employer. In doing so, the Court applied the reasonableness criteria only to the general restraint on competition, and enforced the confidential information and customer solicitation restrictions under the common law of unfair competition with no reliance on the existence of a reasonable covenant restricting those activities. The Court viewed the prohibition on customer solicitation as merely another way of protecting the employer’s valuable and confidential customer information. Id., 390 Pa. at 626, 136 A.2d at 843. Thus, the Court’s only inquiry was whether the customer information itself was of the type that meritted common law protection, with or without a covenant providing such protection.

      . Bell sought enforcement of the covenant against customer solicitation only for a period of two years. On remand, the court must consider whether this or some other time period is appropriate. Since we have found the covenant not to be void as unreasonable on its face, the trial court’s power to so modify the covenant as to time is clear. Sidco Paper Co. v. Aaron, supra; Robert Clifton Associates, Inc. v. O’Connor, 338 Pa.Super. 246, 487 A.2d 947 (1985); Alexander & Alexander, Inc. v. Drayton, 378 F.Supp. 824 (E.D.Pa.), aff’d mem., 505 F.2d 729 (3d Cir.1974).

      . The trial court did not rule on Bell’s request for the return of its confidential records, which Cattolico allegedly had taken and failed to return. On remand, this issue should also be determined.

      . Despite our narrow review of a trial court’s determinations as to the appropriateness of a preliminary injunction, there is no question but that we have the power to reverse a clearly erroneous conclusion of law, such as that drawn by the trial court on this issue and the issue regarding the enforceability of the restrictive covenant discussed above. See Van Products Company v. General Welding and Fabricating Company, 419 Pa. 248, 213 A.2d 769 (1965) (on review of grant of injunction in context of protection of confidential business information, appellate court has power to review chancellor’s conclusions, whether they be of fact or law, since they are merely result of chancellor’s reasoning from facts and law).


source: Caselaw Access Project

author: CIRILLO, President Judge: KELLY, Judge, ROWLEY, Judge,

license: Public Domain

text:
    544 A.2d 462
    COMMONWEALTH of Pennsylvania v. Patricia Ann CARBONE, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 28, 1987.
    Filed June 15, 1988.

      Kevin J. Rozich, Johnstown, for appellant.
    David J. Flower, Assistant District Attorney, Somerset, for Com., appellee.

      Before CIRILLO, President Judge, and CAVANAUGH, BROSKY, ROWLEY, OLSZEWSKI, DEL SOLE, KELLY, POPOVICH and JOHNSON, JJ.
   CIRILLO, President Judge:

Patricia Carbone appeals from a judgment of sentence entered in the Court of Common Pleas, Somerset County, following her conviction for first-degree murder. We reverse and remand.

Carbone raises several issues regarding the sufficiency of the evidence. She claims the Commonwealth failed to prove malice beyond a reasonable doubt and failed to disprove self-defense beyond a reasonable doubt. Therefore, she maintains that the evidence was insufficient to support a conviction for murder in the first degree. Carbone also claims that the presence of the decedent’s widow at the prosecution table throughout voir dire and trial was inherently prejudicial.

The well-established standard for reviewing a sufficiency claim on appeal from a conviction was recently stated by our supreme court:

[WJhether, viewing the evidence in the light most favorable to the Commonwealth [as verdict winner], and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to find every element of the crime beyond a reasonable doubt.... The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by wholly circumstantial evidence____ Moreover, in applying the above test, the entire trial record must be evaluated and all evidence actually received must be considered.... Finally, the trier of fact, while passing upon the credibility of witnesses and the weight to be afforded the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986) (quoting Commonwealth v. Harper, 485 Pa. 572, 576-577, 403 A.2d 536, 538-539 (1979) (citations omitted)).

With these principles in mind, we commence our review of the evidence. Patricia Carbone, age thirty-one, was charged with first-degree murder, third-degree murder, and voluntary manslaughter. She admitted stabbing the decedent, Jerome Lint, but claimed self-defense. According to her testimony, Carbone was walking alone along Route 56 near Windber on Saturday evening, June 9, 1984. She had some free time before her boyfriend was to call so she decided to visit some friends who lived one-fourth mile away. She walked because she had no title for her car. Carbone stated that a small car going her direction slowed down, pulled in front of her and stopped. The car lights went off and the passenger door opened. Carbone walked toward the car. Thinking she would be offered a ride, she bent over and looked into the open door to acknowledge the person and decline the offer, which she did. The driver of the car told her “a nice-looking girl shouldn’t be out walking.” She continued walking and heard the car door shut. The man then pulled his car in front of her and again opened the car door. Thinking there was no danger, she leaned down again looking into the door intending to tell him that she did not need a ride when he “yanked hold of my hair,” and pulled her onto the seat, half in and half out of the car. She experienced both terror and shock, and feared being dragged along the road. She begged him to let her go. As the car began drifting she pulled her legs off the ground and closed the door. When the door closed, he let go of her hair. She tried to talk to him, to “reach him on a human level ... to get through to him and get him to change his mind and let me go.” When he stopped in a remote and heavily wooded area, she got out of the car and ran. Lint chased her and she lost one of her shoes. While she was running, she reached into her purse for a utility knife. She pulled out her hairbrush by mistake and dropped it. She then pulled out the knife. Lint tackled her and she stabbed him because she feared he would rape and possibly kill her. Her testimony indicated that she stabbed the victim more than one time because he refused to stop his assault. When he ceased his attempts, he stood up. Carbone then saw headlights and ran toward them.

The Commonwealth’s witness, Mr. Varner, testified that while he was driving with his family they were flagged down by a woman standing in the middle of the road with a knife in one hand and a purse in the other, “screaming over and over ‘He’s going to kill me, help me, let me in the car please.’ ” When Mr. Varner told her he would not let her in the car because of the knife, she “stabilized” and he allowed her to rid^ on the hood of his car. He dropped her off at the nearest house, which belonged to Mr. and Mrs. Boyer.

Mr. and Mrs. Boyer also testified for the Commonwealth. Mr. Boyer testified that while he and his wife were on the front porch, Carbone came running from around the back of the house. He asked what was wrong, and she replied that she had punched her boyfriend in the nose. Carbone testified that she did not want to tell the Boyers the truth for fear they would abandon her, as the Varners had. Mr. Boyer stated that Carbone was not screaming or crying when she approached the porch, but appeared frightened. Mrs. Boyer testified that Carbone was upset and badly shaken. Mrs. Boyer invited Carbone in the house and noticed that she was wearing only one shoe. She took Carbone to the bathroom to rinse the blood from her blouse and skirt. She asked Carbone if she wanted to call a friend or the police, but she replied that she just wanted to go home to Windber. Mrs. Boyer offered to take her home. When they got in the car, Carbone asked to return to the scene for her shoe. When they arrived, Carbone stared at Lint’s car parked in the distance and said, “He must be looking for me.” Frightened, Mrs. Boyer quickly turned her car around and left the scene.

Mr. Nadonely, Carbone’s boyfriend, also testified on behalf of the Commonwealth. He testified that Carbone seemed nervous and uncomfortable when he talked to her on the telephone. He arrived at Carbone’s apartment at approximately 11:30 p.m. that night and they went to a bar about fourteen miles away. Nadonely stated that while they were there, Carbone left the table several times for the bathroom and later told him she had been vomiting. Car-bone was pale and her face was swollen. Nadonely took her home at her request. She told Nadonely that someone had tried to rape her and she stabbed him. Carbone was “really upset” so he did not press her for a detailed explanation. He told her that she should call the police, but as far as he knew she had not done so. The next day, Carbone accompanied him to a motorcycle charity event. On their way, Carbone asked Nadonely to stop at the scene so she could retrieve her lost shoe and hairbrush. They saw Lint’s parked car and Carbone expressed surprise that it was still there. They got out of their car, leaving the doors open “because we [were] afraid, you know, he might be coming back for the car or something.” They found Carbone’s hairbrush about forty yards from Lint’s car. Carbone showed her boyfriend where the man had knocked her down in the weeds, which were “all knocked over and busted up.” They did not see her shoe and did not go close to the car or see anything in it. They left and Nadonely again told her that she should call the police, but he did not want to “push her,” and that “maybe she should come over and stay at my house so this guy don’t come after her, you know, her and Amy [Carbone’s daughter], to protect them.” Nadonely further testified that Carbone told him she stabbed the man because “he wouldn’t let her alone ... just kept coming after her. She tried to get away.” Nadonely also stated that on Monday there were bruises on Carbone’s thighs and buttocks.

Mrs. Stiles, a friend of Carbone’s, also testified for the Commonwealth. She stated that she spoke with Carbone on Sunday at the motorcycle event, and that Carbone told her somebody had tried to rape her and she stabbed him in the arm, that he did not stop, so she stabbed him again with a knife from her kitchen which she had with her because she was walking alone and felt insecure.

Mrs. Marcinko, Carbone’s neighbor, also testified for the Commonwealth. Mrs. Marcinko cared for Carbone’s daughter on Saturday. Carbone came for her daughter on Sunday, and they talked. The witness testified that Carbone appeared calm and said she would like to tell her something and “not to say anything, that she had stabbed someone the night before and she thought she had killed him” and asked what she should do about it. The witness really did not believe her, but told her to call the police. The witness also stated that Carbone told her the man had “forced her into the car and tried to rape her, that’s why she stabbed him.”

State Police Officer Goldstrom also testified for the Commonwealth. He arrived at the scene on Monday at 8:40 p.m. when it was still daylight. He observed Mr. Lint’s body in the car, which was in the driver’s seat slumped toward the passenger seat. He found a woman’s white canvas shoe two to three feet from the right rear bumper of the car, and a few drops of blood outside the driver’s door of the car “as if someone had been standing there and they dropped.” Officer Goldstrom also stated that there were smudges of blood on the inside of the driver’s door and that the body had a puncture wound just behind and under the left arm but no other wounds were then noticed.

Police Officer Marshall testified on behalf of the Commonwealth. His testimony generally confirmed that of Officer Goldstrom, but added that he gathered eight stones from the scene found near the driver’s door on the ground that appeared to have human blood on them.

Dr. Williams, a pathologist, also testified for the Commonwealth. He testified that he had performed the autopsy and that the decedent had stab wounds on his trunk and abdomen, and other wounds which were essentially superficial. The specific cause of death was a wound to the heart. He stated that in his opinion very few persons have any period of physical activity after such a wound to the heart. Dr. Williams stated that the decedent was 5'9" tall and weighed 165 pounds, and that the body was well-developed and well-nourished with adequate musculature. On cross-examination, Dr. Williams testified that the opening and closing of a car door does not require enormous energy and is not an absolute impossibility with such a wound; that a person with such a wound could be capable of some activity but it is uncertain as to what that activity could be.

Officer Goldstrom, recalled, testified that he interviewed Carbone at her parents’ home on Tuesday, June 12. She agreed to answer questions without counsel. Officer Goldstrom subsequently placed Patricia Carbone under arrest for criminal homicide.

Lint’s brother and brother-in-law also testified on behalf of the Commonwealth. They indicated that they found Lint’s body in a sitting position in his car. There was blood on the driver’s door and on the ground outside the driver’s side of the car. They also testified that they went to the remote area because he was known to have frequented the spot before.

The decedent’s wife, Mrs. Lint, also testified for the Commonwealth. She stated that the spot where her husband’s body was found was one of his favorite stopping points.

The Commonwealth’s evidence also indicated that Patricia Carbone and Jerome Lint did not know each other. Following trial, the jury convicted Patricia Carbone of first-degree murder.

After a careful review of the entire trial record, we conclude that the Commonwealth failed to meet its burden of proving every element of first-degree murder beyond a reasonable doubt. First-degree murder is statutorily defined as an “intentional killing.” 18 Pa.C.S. § 2502(a). An “intentional killing” is defined as follows: “Killing by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing.” 18 Pa.C.S. § 2502(d). A willful, deliberate, and premeditated killing is one where the actor had the specific intent to bring about the death of the victim. Commonwealth v. Meredith, 490 Pa. 303, 416 A.2d 481 (1980); Commonwealth v. Moore, 473 Pa. 169, 373 A.2d 1101 (1977).

Appellant Carbone claims self-defense. Thus, in addition to proving an intentional killing beyond a reasonable doubt, the. Commonwealth must also show beyond a reasonable doubt that the killing was not in self-defense. Commonwealth v. Hinchcliffe, 479 Pa. 551, 552, 388 A.2d 1068, 1069 cert. denied, 439 U.S. 989, 99 S.Ct. 588, 58 L.Ed.2d 663 (1978).

Carbone raises two distinct questions. First, she claims the Commonwealth failed to prove malice, a necessary element of first-degree murder, beyond a reasonable doubt. Second, she claims the Commonwealth failed to disprove self-defense beyond a reasonable doubt. Although we cannot find that the evidence establishes a justifiable killing as a matter of law, we are convinced that a malicious killing was not established.

In order for a willful or intentional killing to constitute murder, the Commonwealth must establish malice beyond a reasonable doubt. Commonwealth v. Thomas, 403 Pa. 553, 555, 170 A.2d 112, 113 (1961); Commonwealth v. Flax, 331 Pa. 145, 200 A. 632 (1938). The traditional definition of malice was set forth in Commonwealth v. Drum, 58 Pa. 9 (1868):

Malice is a legal term, implying much more. It comprehends not only a particular ill-will, but every case where there is wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured.

Id. at 15; see also Commonwealth v. Kersten, 333 Pa.Super. 343, 482 A.2d 600 (1984) (malice which may be inferred from attending circumstances in a homicide prosecution consists either of an express intent to kill or inflict great bodily harm, or of a wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty, indicating unjustified disregard for the probability of death or great bodily harm). The classic jury charge in Drum makes it preeminently clear that malice, whether express or implied, must be proven by the Commonwealth, and that it may be proven circumstantially:

The proof of the intention to kill, and of the disposition of mind constituting murder in the first degree, under the Act of Assembly, lies on the Commonwealth. But this proof need not be express or positive. It may be inferred from the circumstances. If, from all the facts attending the killing, the jury can fully, reasonably, and satisfactorily infer the existence of the intention to kill, and the malice of heart with which it was done, they will be warranted in so doing. He who uses upon the body of another, at some vital part, with a manifest intention to use it upon him, a deadly weapon____ must, in the absence of qualifying facts, be presumed to know that his blow is likely to kill; and, knowing this, must be presumed to intend the death which is the probable and ordinary consequence of such an act. He who so uses a deadly weapon without a sufficient cause of provocation, must be presumed to do it wickedly, or from a bad heart. Therefore, he who takes the life of another with a deadly weapon, and with a manifest design thus to use it upon him, with sufficient time to deliberate, and fully to form the conscious purpose of killing, and without sufficient reason or cause of extenuation, is guilty of murder in the first degree.

Drum, 58 Pa. at 16; see also Commonwealth v. Weinstein, 499 Pa. 106, 451 A.2d 1344 (1982); Commonwealth v. Buzard, 365 Pa. 511, 76 A.2d 394 (1950).

Thus it is well settled that the intentional use of a deadly weapon on a vital part of the body raises a permissible inference of malice. Hinchcliffe, 479 Pa. at 554, 388 A.2d at 1070. This inference has a dual purpose; it allows a jury to infer malice, Commonwealth v. Caye, 465 Pa. 98, 348 A.2d 136 (1975); Commonwealth v. Boyd, 463 Pa. 343, 344 A.2d 864 (1975), as well as a specific intent to kill, Commonwealth v. Toledo, 365 Pa.Super. 224, 529 A.2d 480 (1987); Commonwealth v. Crowson, 488 Pa. 537, 412 A.2d 1363 (1979).

The finder of fact is not required to ignore this inference merely because the defendant testifies that he did not intend to take a person’s life. Commonwealth v. Gidaro, 363 Pa. 472, 70 A.2d 359 (1950); see also Commonwealth v. Martinez, 499 Pa. 417, 453 A.2d 940 (1982); Commonwealth v. D’Ambro, 500 Pa. 303, 308 n. 5, 456 A.2d 140, 143 n. 5 (1983); Commonwealth v. Roberts, 496 Pa. 428, 437 A.2d 948 (1981). Here, the Commonwealth relies on that inference of malice to justify the verdict. The jury was not required to disregard the inference merely because Carbone testified otherwise. However, the Commonwealth’s reliance on the inference from the fact of the stabbing is misplaced under the facts of this case.

It is not disputed that Carbone stabbed Lint and caused his death. The question raised is whether the act was inspired by malice. In this case, the inference of malice that would normally arise from the use of a deadly weapon upon a vital part of the body of the deceased, absent further explanation, is negated by other evidence presented in this case by the Commonwealth. Commonwealth v. Caye, 465 Pa. at 101, 348 A.2d at 137 (1975).

The Commonwealth’s evidence showed that Carbone and Lint did not know each other; that Lint was driving and Carbone was on foot; that Lint was familiar with the remote area where his body was found, and, in fact, that it was one of his favorite stopping points; that immediately after the incident Carbone flagged down a car, seeking help and screaming that someone was going to kill her; that, following the incident, Carbone told numerous people that she stabbed a man because he tried to rape her.

An inference of malice cannot be accepted in a vacuum. The law infers or presumes from the use of a deadly weapon, in the absence of circumstances of explanation or mitigation, the existence of the mental element — intent, malice, design, premeditation, or whatever term may be used to express it — which is essential to culpable homicide. See Commonwealth v. Jones, 355 Pa. 522, 50 A.2d 317 (1947). See generally 40 Am.Jur.2d Homicide § 265 (1968). It is necessary to look at all of the Commonwealth’s evidence. In addition, the entire trial record must be evaluated, and all evidence actually received must be considered. Griscavage, supra; see also Commonwealth v. McGuire, 487 Pa. 208, 409 A.2d 313 (1979) (evidence, which negated inference of malice that would normally arise from defendant’s use of deadly weapon on vital part of body of victim, was insufficient to establish malicious killing beyond a reasonable doubt and thus did not support third-degree murder conviction); Commonwealth v. Heatherington, 477 Pa. 562, 385 A.2d 338 (1978) (in a prosecution for murder, evidence of provocation or self-defense tends to negate the malice required to prove murder); Commonwealth v. Jones, 355 Pa. 522, 50 A.2d 317 (1947) (absence of motive is evidence tending to disprove specific intent).

Carbone’s claim of self-defense placed upon the Commonwealth the burden to prove beyond a reasonable doubt defendant did not act in self-defense. To raise the homicide to the level of murder it is necessary to establish that the defendant intentionally did the act which resulted in the death and that she did so without justification or excuse. It is important to note that the concept of malice is inconsistent with self-defense. In order to meet its burden of proof on the element of malice in a murder prosecution, the Commonwealth must exclude self-defense beyond a reasonable doubt. Commonwealth v. Hinchcliffe, 479 Pa. 551, 552, 388 A.2d 1068, 1069, cert. denied, 439 U.S. 989, 99 S.Ct. 588, 58 L.Ed.2d 663 (1978). The existence of self-defense, or otherwise stated, the state’s failure to prove the absence of self-defense beyond a reasonable doubt, precludes the jury from fully, reasonably and satisfactorily inferring the existence of malice. Drum, 58 Pa. at 16.

In its opinion, the trial court systematically discounts the probative value of each item of the Commonwealth’s evidence tending to establish the absence of self-defense. The trial court plainly stated: “While we are satisfied that the foregoing items of evidence are insufficient to disprove self-defense, to them we must add the facts that defendant caused the death by intentional use of a deadly weapon on a vital part of decedent’s body, which complicates the equation and goes to the heart of the defense attack on the sufficiency of the evidence.” (emphasis added). Although the trial court believed that the Commonwealth had failed to disprove Carbone’s claim of self-defense beyond a reasonable doubt, it concluded that the common law inference of malice raised the evidence to a level sufficient to disprove self-defense. The trial court relied on Commonwealth v. Hinchcliffe, 479 Pa. 551, 388 A.2d 1068 (1978). After a thorough review of the record, we agree with the trial court’s conclusion that the Commonwealth did not disprove self-defense beyond a reasonable doubt; however, we find no basis for the court’s finding that the inference of malice raised the evidence rebutting self-defense to the level of “beyond a reasonable doubt.” The Commonwealth’s reliance on Hinchcliffe is misplaced under the facts of this case.

In that case, the defendant, Hinchcliffe, and Ross, the victim, were involved in selling drugs. Hinchcliffe wanted to terminate the illicit business relationship, and an argument ensued. Ross grabbed a short length of pipe and attempted to hit Hinchcliffe. Hinchcliffe was able to get the pipe out of Ross’s hand. Ross then grabbed a lamp and started to attack Hinchcliffe. Hinchcliffe diverted the lamp with the piece of pipe, and simultaneously struck Ross on the head. Ross fell to the floor and died a short time later. Hinchcliffe admitted planning to surreptitiously dispose of Ross’s body, claiming he did not think the police would believe him because he had a previous criminal record and because he was in violation of parole for having left the state of Ohio without permission.

Following a jury trial, Hinchcliffe was convicted of third-degree murder. On appeal, he argued that the evidence was insufficient to sustain a third-degree murder conviction and the Commonwealth failed to meet its burden of disproving self-defense beyond a reasonable doubt. The Pennsylvania Supreme Court disagreed, noting that the factfinder can draw a permissible inference of malice from the intentional use of a deadly weapon on a vital part of the victim’s body. The court stated that “[s]ince there was evidence from which a jury could at least reasonably infer malice, the Commonwealth has met its burden of proving beyond a reasonable doubt that Hinchcliffe did not act in self-defense.” Id., 479 Pa. at 557, 388 A.2d at 1071. Thus, the evidence in that case was sufficient as a matter of law to sustain the verdict.

Under the facts and circumstances of the case before us, the inference of malice is not warranted. In Hinchcliffe, as in almost every other case where malice has been inferred from the use of a deadly weapon upon a vital part of the body, other circumstances corroborated such malice and a jury could reasonably infer malice. See, e.g., Commonwealth v. Thornton, 494 Pa. 260, 431 A.2d 248 (1981) (after four hours of searching for victim, whom defendant knew, defendant approached victim with shotgun and from distance of five feet away shot him in back); Commonwealth v. McAndrews, 494 Pa. 157, 430 A.2d 1165 (1981) (defendant pressed muzzle of gun against victim’s cheek and pulled trigger; victim was paramour of defendant; defendant fled); Commonwealth v. Green, 493 Pa. 409, 426 A.2d 614 (1981) (wife inflicted multiple stab wounds on husband whom she suspected of being unfaithful); Commonwealth v. Bishop, 489 Pa. 96, 413 A.2d 1031 (1980) (defendant entered victim’s grocery store with firearm, pointed gun at victim and fired three times); Commonwealth v. Bricker, 458 Pa. 367, 326 A.2d 279 (1974) (defendant shot victim twice from two feet away, pushed victim from car and dragged body two hundred feet before it became dislodged); Commonwealth v. Jones, 355 Pa. 522, 50 A.2d 317 (1947) (defendant initiated altercation with his ex-girlfriend's current boyfriend, Hall; expressed desire to resume relationship with ex-girlfriend; admitted jealousy of her affection for Hall; and struck Hall and his ex-girlfriend with an iron bar across their heads); Commonwealth v. Harvey, 345 Pa.Super. 237, 498 A.2d 378 (1985) (defendant initiated struggle with the victim, his girlfriend, and strangled her with a purse strap; the struggle was witnessed by the woman’s son).

The case before us, strikingly dissimilar from the aforementioned, presents no such corroborating circumstances. The evidence in this case simply does not warrant an inference of malice, and therefore a verdict of any degree of murder is precluded. However, a verdict of voluntary manslaughter could have been sustained on the record before us. See 18 Pa.C.S. § 2503.

Where there is a claim of self-defense, the Commonwealth must establish one of the following elements beyond a reasonable doubt:

(1) that appellant did not reasonably believe it was necessary to kill in order to protect himself against death or serious bodily harm, or that appellant used more force than was reasonably necessary to save himself from death, great bodily harm, or the commission of a felony;
(2) that appellant provoked the use of force; or,
(3) that appellant had a duty to retreat and that retreat was possible with complete safety.

18 Pa.C.S. § 505(b)(2); see also Commonwealth v. Helm, 485 Pa. 315, 402 A.2d 500 (1979); Commonwealth v. Zenyuh, 307 Pa.Super. 253, 453 A.2d 338 (1982).

Based on the evidence presented, there appear to be only two plausible bases for rejecting Carbone’s claim of self-defense. First, it is conceivable that the jury may have concluded that Carbone’s belief that she was in danger of death, serious bodily injury, or rape was an unreasonable belief. If this was the basis for the conviction, the appropriate verdict would have been voluntary manslaughter. Caye, supra; Commonwealth v. Light, 458 Pa. 328, 326 A.2d 288 (1974). Second, the jury may have found that although Carbone may have reasonably believed she was about to be raped or killed, she nevertheless used excessive force by failing to warn Lint that she would use the knife. Here again, such a conclusion would have justified only a finding of voluntary manslaughter. Caye, supra; Commonwealth v. Carbonetto, 455 Pa. 93, 314 A.2d 304 (1974).

Based on the facts of record, a jury could possibly conclude that the killing was justifiable. However, the issues of whether Carbone’s belief was unreasonable and whether the force she used was excessive are questions for the factfinder.

Reversed and remanded for a new trial on the charge of voluntary manslaughter.

KELLY, J., files a dissenting opinion in which CAVANAUGH, J., joins.

ROWLEY, J., files a dissenting statement in which DEL SOLE, J., joins.

KELLY, Judge,

dissenting:

I respectfully dissent. I would find the evidence sufficient to sustain appellant’s conviction of murder in the first degree. However, I would find that the presence of the decedent’s widow at the counsel table of the Commonwealth requires a new trial. I state my reasoning briefly as follows.

I.

The majority concludes that a verdict of guilt to a charge of murder in the first degree may not be based solely upon the presumption which arises from the use of deadly force on a vital organ when a defendant asserts a claim of self-defense. I would not reach that issue, as I do not find it presented by the facts of the instant case. Succinctly, I find that the totality of the evidence was sufficient to sustain the verdict, and that the majority has failed to review the evidence in the light most favorable to the Commonwealth and give the Commonwealth the benefit of reasonable inferences arising from the evidence.

Appellant admitted stabbing the decedent with an 11-inch knife which she was carrying in her purse, but claimed that she did so in self-defense when the decedent attempted to abduct and sexually assault her. However, the details of appellant’s trial version of the incident were inconsistent with the details of various prior statements made by appellant, with physical evidence discovered at the scene, with the probable (but not certain) effect of the wounds inflicted on the decedent, and with the considerable opinion evidence presented as to the decedent’s reputation as a non-violent, law abiding, and happily married young man. Evidence also indicated that appellant had twice returned to the scene of the crime to remove evidence linking her to the crime, had otherwise acted in a calm, ordinary manner on the day following the incident, and had failed to report the incident to the police.

In its instructions to the jury, the trial court correctly explained:

When the actor uses a deadly weapon on the vital part of the body of another, you may regard that as an item of circumstantial evidence from which you may infer that the actor had the specific intention to kill required in first-degree murder. Notice I said ‘you may.’ You don’t have to. You may think it doesn’t show an intention to kill when you wrap it up and consider it with all of the circumstances in the case.
The Commonwealth contends that the evidence here supports a finding of malice-of intentional malice-as is required in first-degree murder, that there is no mitigation, there is no justification; and the defense contends that the evidence does not warrant a finding of such malice because the defendant was lawfully justified in acting in self-defense.

(N.T. 4/4/85 at 10). Thus, the jury was specifically instructed to consider “all the circumstances of the case” before deciding whether appellant acted with “malice” and was not invited to find malice based solely upon the use of a deadly weapon on a vital organ.

The jury was free to believe all, part, or none of the evidence presented and to draw reasonable inferences arising therefrom. Apparently, the jury accepted appellant’s admission that she stabbed the victim and rejected as not credible her proffered justification that he was attempting to abduct and sexually assault her. I would not substitute our assessment of the appellant’s credibility and the weight to be accorded the evidence for that of the jury. Rather, I find the evidence sufficient to sustain the verdict, and therefore dissent.

II.

The majority does not reach appellant’s contention that a new trial is required as the result of the prejudice to appellant arising from the conspicuous presence of the decedent’s widow at the prosecutor’s table within the bar of the court during voir dire and throughout trial. Initially, I would find that a challenge to her presence was properly preserved, and that repetition of the objection at each stage of the proceedings was not required. Cf. Commonwealth v. Hanes, 361 Pa.Super. 357, 365, 522 A.2d 622, 626 (1987) (evidentiary ruling by trial court foreclosed further inquiry on the subject, repetition of motion was not necessary to preserve the issue). I find that a substantial risk of improper prejudice affecting juror deliberations was created by the emotionally evocative presence of the widow within the bar of the court during voir dire and throughout trial. No legitimate reason for her presence has been proffered, nor could I imagine any. Consequently, I would vacate the sentence and remand for a new trial on all charges.

ROWLEY, Judge,

dissenting:

I respectfully dissent for the reasons set forth in Part I of the Dissenting Opinion of Judge Kelly concerning the sufficiency of the evidence.

However, I also disagree with Part II of Judge Kelly’s Dissenting Opinion in which he concludes that the presence of the victim’s widow at the counsel table during voir dire was prejudicial. The trial court has wide discretion to control conduct at trial, Commonwealth v. Jones, 314 Pa. Super. 497, 461 A.2d 267 (1983), and in my opinion the trial court did not abuse that discretion. Therefore, I would affirm the judgment of sentence.

      . The Act of 1682 was the first great reform statute under William Penn which abolished the death penalty for all offenses except murder and retained the death penalty only for those persons who shall "wilfully or premeditatedly kill another person.” The words "wilfully or premeditatedly” were substituted for the words "malice aforethought” and operated to retain the death penalty only for murder where there was express malice — the intent-to-kill variety — and not for murder where there was implied malice — some murderous intent less than the intent to kill. Though this early reform statute lapsed in 1718, its ameliorating influence resurfaced seventy-six years later in the Act of 1794. At that time, the third adjective, — "deliberate”—was added. The word "deliberate” came from the memoir of Justice Bradford who, in 1792, prepared for the Governor the research papers and the recommendation which formed the basis of the Act of 1794. The Act of 1794 stated:
      That all murder, which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery or burglary, shall be deemed murder of the first degree; and all other kinds of murder shall be deemed murder of the second degree.
      This was the first American statute to divide murder into degrees, leaving capital punishment intact as the appropriate sentence for murder in the first degree but providing for a lesser sentence for murder in the second degree (now murder in the third degree). Felony-murder, once murder in the first degree, is now second-degree murder. See 18 Pa.C.S. § 2502(c); see also Brenner, The Impulsive Murder and the Degree Device, 22 Fordham L.Rev. 274 (1953); Keedy, History of the Pennsylvania Statute Creating Degrees of Murder, 97 U.Pa.L.Rev. 759 (1949).

      . Commonwealth v. Drum, 58 Pa. 9 (1868) is a somewhat unorthodox and interesting source, as it is not an appellate opinion. A circuit judge in Western Pennsylvania disqualified himself because of his relationship with the defendant. Justice Agnew, an associate justice of the Supreme Court of Pennsylvania, was specially designated to preside at the murder trial. The report in this case consists largely of his charge to the jury. Because of the important legal principles in the charge, the case was, with his approbation, inserted in the official Supreme Court Reports. This 120 year-old nisi prius jury charge in Westmoreland County, in addition to being the wellspring for defining first-degree murder in Pennsylvania, is the leading oracle of the law in this regard nationwide. See Perkins, Criminal Law, (2d ed. 1969), p. 89 n. 20. See generally Annotation, Modern Status of the Rules Requiring Malice "Aforethought," "Deliberation, ” or “Premeditation, ” as Elements of Murder in the First Degree, 18 A.L.R. 4th 961 (1982).

      . 18 Pa.C.S. § 505 provides that "[t]he use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion____ The use of deadly force is not justifiable under this section unless the actor believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat.” 18 Pa.C.S. § 505(a), (b). (emphasis added).

      . It would be inappropriate for this court to enter a verdict of voluntary manslaughter. Our supreme court has previously indicated an unwillingness to usurp a jury’s function by entering a verdict for a lesser degree of homicide after a determination that the evidence did not sustain the degree found by the factfinder. Commonwealth v. Wagner, 486 Pa. 548, 406 A.2d 1026 (1979).