author: WIEAND, Judge:

text:
    578 A.2d 8
    Bernard J. CURRAN, Appellant, v. The CHILDREN’S SERVICE CENTER OF WYOMING COUNTY, INC., and Milford E. Barnes, Appellees. (Two Cases)
    Superior Court of Pennsylvania.
    Argued March 29, 1990.
    Filed Aug. 9, 1990.
    Petition for Allowance of Appeal Denied Jan. 7, 1991.

      Peter G. Loftus, Scranton, for appellant.
    Paul A. Barrett, Scranton, for appellees.
    Before WIEAND, BECK and POPOVICH, JJ.
   WIEAND, Judge:

Bernard J. Curran was employed as a psychologist by The Children’s Service Center of Wyoming County, Inc. (CSC) on April 18, 1983. On June 10, 1985, he was given notice by Milford E. Barnes, acting in the capacity as agent for CSC, that his employment would be terminated on June 14, 1985. Curran thereafter commenced a civil action against Barnes and CSC in which he sought to recover damages for wrongful discharge and invasion of privacy. In a separate count he alleged that Barnes had wrongfully interfered with the contractual relationship between Curran and CSC. After the pleadings had been closed and Curran’s depositions had been taken for discovery purposes, the trial court granted motions filed by Barnes and CSC for summary judgment. Curran has appealed from the order entering summary judgment.

A motion for summary judgment may properly be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Pa.R.C.P. 1035(b). See also: Craddock v. Gross, 350 Pa.Super. 575, 577-578, 504 A.2d 1300, 1301 (1986); Berardi v. Johns-Manville Corp., 334 Pa.Super. 36, 38, 482 A.2d 1067, 1068-1069 (1984); Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 140, 476 A.2d 928, 930 (1984). When a motion for summary judgment is made and supported as provided in Rule 1035, the non-moving party may not rest upon the mere allegations and denials of his pleadings. To avoid summary judgment the non-moving party must set forth specific facts by way of affidavit, or as otherwise provided in Rule 1035, demonstrating that a genuine factual issue exists. Phaff v. Gerner, 451 Pa. 146, 149, 303 A.2d 826, 829 (1973); Ressler v. Jones Motor Co., Inc., 337 Pa.Super. 602, 609, 487 A.2d 424, 428 (1985). The inquiry in deciding a motion for summary judgment “is whether the admissible evidence in the record, in whatever form, from whatever source, considered in the light most favorable to the respondent to the motion, fails to establish a prima facie case....” In re Japanese Electronic Products Antitrust Litigation, 723 F.2d 238 (3d Cir.1983), cert. denied, 481 U.S. 1029, 107 S.Ct. 1955, 95 L.Ed.2d 527 (1985). Summary judgment serves to eliminate the waste of time and resources of both litigants and the courts in cases where a trial would be a useless formality.

“[A]s a general rule, there is no common law cause of action against an employer for termination of an at-will employment relationship.” Paul, M.D. v. Lankenau Hospital, 524 Pa. 90, 95, 569 A.2d 346, 348 (1990), quoting Clay v. Advanced Computer Applications, 522 Pa. 86, 89, 559 A.2d 917, 918 (1989). An employee at-will may be discharged with or without cause. “Exceptions to this rule have been recognized in only the most limited of circumstances, where discharges of at-will employees would threaten clear mandates of public policy.” Id.

Appellant does not quarrel with these principles of law but argues that his employment was not at-will but for the term of his life. Although there was no express agreement that his hiring was to be other than at-will, he contends that the circumstances surrounding his hiring were such as to evidence that the parties intended a relationship which could not be terminated by the employer except for cause. The trial court determined that, as a matter of law, appellant could not show more than at-will employment.

When appellant was hired as a staff psychologist, he was placed on probation. The salary terms were set forth in a letter addressed to appellant on April 18, 1983. The letter stated: “The position of psychologist is temporary, depending upon your meeting the Pennsylvania licensing requirements for clinical psychologist.” Appellant did not take the licensing exam in October, 1983, because he felt he was not adequately prepared. He took the exam in April, 1984, but failed to pass it. In a letter dated August 10, 1984, and signed by Joseph DeVizia, executive director, and Milford E. Barnes, clinical director, appellant was informed that his status had been reviewed by the personnel committee of the board and, because he had not received his license, he would remain in a temporary employment status and would not be approved for an increase in salary.

Although appellant successfully took the licensing exam in October, 1984, he was thereafter advised by letter of March 5, 1985, signed by Barnes, that CSC had decided, after full review of all relevant matters, that it would not offer him a permanent position on its professional staff. Appellant was also told to begin looking for another job. Finally, on June 10, 1985, appellant received a letter, signed by Barnes, which stated: “This note will confirm our verbal agreement on May 30, 1985, that your employment at the Children’s Service Center would terminate, by mutual consent, on June 14, 1985.”

Appellant’s contention that he expected lifelong employment from which he could be discharged only for cause is not alone an adequate basis for overcoming the presumption of employment at-will where the parties have not agreed to a specific term of employment. Decisions in Pennsylvania evince a reluctance to enforce contracts of employment for life or for periods of similar breadth. Scott v. Extracorporeal, Inc., 376 Pa.Super. 90, 96, 545 A.2d 334, 337 (1988). See: Ross v. Montour Railroad Co., 357 Pa.Super. 376, 516 A.2d 29 (1986) (expectation of “life long” employment alone not sufficient to overcome the at-will rule); Murphy v. Publicker Industries, Inc., 357 Pa.Super. 409, 516 A.2d 47 (1986) (promise of lifetime employment not in itself sufficiently definite to overcome at-will presumption); Veno v. Meredith, 357 Pa.Super. 85, 515 A.2d 571 (1986) (employer’s statements to employee, including “I want to retire together,” held too broad and vague to overcome at-will presumption); Darlington v. General Electric, 350 Pa.Super. 183, 504 A.2d 306 (1986) (employer’s statement that employee was hired to work on “long range project” held too vague and unspecified to overcome at-will presumption); Betts v. Stroehmann Bros., 355 Pa.Super. 195, 512 A.2d 1280 (1986) (employee’s understanding that employment was to be “long term” insufficient to overcome at-will presumption).

“[A] written personnel policy may serve as the basis for a cause of action for breach of a provision contained within it if, under all the circumstances, the parties manifest an intent that it become a legally binding contract.” Ramsbottom v. First Pennsylvania Bank N.A., 718 F.Supp. 405, 410 (D.N.J.1989), quoting Klages v. Sperry Corp., No. 83-3295, slip op., 1986 WL 7636 (E.D.Pa. July 8, 1986), 1986 WL 7636. See: Scott v. Extracorporeal, Inc., supra 376 Pa.Super. at 97, 545 A.2d at 337.

The employee handbook given to appellant at the time of his employment contained references to hiring practices, probation, employee benefits, termination of employment, and other conditions of employment. It provided that employees who resigned were expected to give thirty days notice, but no notice was required where termination was by mutual agreement. During the probationary period, an employee could be terminated by the employer by giving notice. After a probationary period of temporary employment had been served, a permanent status might be acquired, but even such a position could be terminated because of retrenchment or reorganization. A permanent employee who was discharged for unsatisfactory performance had a right of review according to standards set forth in the handbook.

Appellant was hired as an employee at-will and placed in a temporary status. There was, as he concedes, no agreement that he would be given permanent employment for life or other extended period. Appellant never did achieve permanent status. When his employment came to an end, he was still a temporary employee. At that time, there clearly was no basis on which appellant could reasonably have believed that he was an employee who could be discharged only for “just cause.” Cf. Martin v. Capital Cities Media, Inc., 354 Pa.Super. 199, 511 A.2d 830 (1986), alloc. denied, 514 Pa. 643, 523 A.2d 1132 (1987).

Appellant also asserts that an implied contract of permanent employment was created by the fact that he had given additional consideration to his employer by remaining in his position without a pay raise for two years and by obtaining state certification as a licensed psychologist. It is correct that employment may be taken out of an at-will status where an employee has given his employer additional consideration, other than the services for which he was hired, from which it may be inferred that he was contracting for employment which could not be terminated at will. Darlington v. General Electric, supra 350 Pa.Super. at 199, 504 A.2d at 314. In such cases, an employee will not be subject to discharge without just cause for a reasonable time. Veno v. Meredith, supra 357 Pa.Super. at 102, 515 A.2d at 580. In Darlington v. General Electric, supra, the Court said:

The term “consideration” is not used here as it is in the usual contractual context to signify a validation device. The term is used, rather, more as an interpretation device. When “sufficient additional consideration” is present, courts infer that the parties intended that the contract will not be terminable at-will. This inference may be nothing more than a legal fiction because it is possible that in a given case, the parties never truly contemplated how long the employment would last even though additional consideration is present. Even so, the at-will presumption would be overcome. On the other hand, if the parties specifically agreed that the employment would be at-will, even though additional consideration were present, we would expect a court to construe the contract according to the parties’ stated intention and hold it to be at-will. Thus, we start with the usual at-will presumption which, let us say, has not been overcome by evidence of a contract for a term or for a reasonable length of time. Then, if sufficient additional consideration is present, the law presumes this to be sufficient to rebut the at-will presumption. Such a contract could not be rightfully terminated at-will but would continue for a reasonable length of time. 56 C.J.S. Master and Servant § 31. However, the presumption created by the additional consideration rule could itself be rebutted by evidence that the parties specifically contracted for employment at-will.
[A] court will find “additional consideration” when an employee affords his employer a substantial benefit other than the services which the employee is hired to perform, or when the employee undergoes a substantial hardship other than the services which he is hired to perform. “If the circumstances are such that a termination of the relation by one party will result in great hardship or loss to the other, as they must have known it would when they made the contract, this is a factor of great weight in inducing a holding that the parties agreed upon a specific period.” 3 A. Corbin, Corbin on Contracts § 684 (1960).

Id. 350 Pa.Super. at 199-202, 504 A.2d at 314-315.

In the instant case, there was no additional consideration from which an agreement could be inferred that appellant would not be subject to termination at will. It was appellant’s decision to continue working in a temporary status without an increase in salary after expiration, of the first six months. Similarly, appellant was aware that licensing by the Commonwealth of Pennsylvania was a condition of employment. It was not an additional consideration from which it could be inferred that appellant’s employment was subject to conditions different than other at-will employees. There is, in short, no basis in this action for inferring that appellant and his employer had contracted for an employment which could not be terminated at will.

Under these circumstances, the trial court properly held that appellant could have no cause of action against CSC for terminating his employment.

It has been observed that the cause of action for invasion of privacy “ ‘is not one tort, but a complex of four.’ ” Vogel v. W.T. Grant Co., 458 Pa. 124, 129 n. 9, 327 A.2d 133, 136 n. 9 (1974), quoting W. Prosser, Handbook of the Law of Torts § 117, at 804 (4th ed. 1971). See also: Restatement (Second) of Torts § 652A; Prosser and Keeton on Torts § 117, at 851 (5th ed, 1984). These four potential causes of action consist of (1) unreasonable intrusion upon the seclusion of another; (2) appropriation of the other’s name or likeness; (3) unreasonable publicity given to the other’s private life; and (4) publicity that unreasonably places the other in a false light before the public. Restatement (Second) of Torts § 652A. Appellant’s contention appears to be that he received publicity which unreasonably placed him in a false light before the public. Thus, his complaint contains averments that Barnes and CSC pursued a wanton and deliberate course of conduct in which they damaged his reputation, destroyed enjoyment of his job and impaired his future financial security. They did this, appellant alleges, by making assertions that (1) his work performance and his reports were unsatisfactory and (2) he abused sick leave policies.

This tort is defined at Restatement (Second) of Torts § 652E as follows:

One who gives publicity to a matter concerning another that places ,the other before the public in a false light is subject to liability to the other for invasion of his privacy, if
(a) the false light in which the other was placed would be highly offensive to a reasonable person, and
(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.

The Superior Court has held that this section of the Restatement is a part of the law of Pennsylvania but that the contours of the tort created thereby are amorphous. Larsen v. Philadelphia Newspapers, 375 Pa.Super. 66, 81, 543 A.2d 1181, 1188 (1988), alloc. denied, 520 Pa. 597, 552 A.2d 251 (1988); 520 Pa. 597, 552 A.2d 252 (1988); 520 Pa. 606, 553 A.2d 968 (1988); cert. denied, — U.S. —, 109 S.Ct. 1568, 103 L.Ed.2d 935 (1989). “The interest protected by this Section is the interest of the individual in not being made to appear before the public in an objectionable false light or false position....” Restatement (Second) of Torts § 652E, comment b. The rule is also limited by the requirement that the false information be given “publicity.” This “publicity” differs from the “publication” which is required in connection with liability for defamation. “Publicity,” as an element of the tort of invasion of privacy, “means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge.” Restatement (Second) of Torts, § 652D, comment a. Moreover, the rule

applies only when the publicity given to the plaintiff has placed him in a false light before the public, of a kind that would be highly offensive to a reasonable person. In other words, it applies only when the defendant knows that the plaintiff, as a reasonable man, would be justified in the eyes of the community in feeling seriously offended and aggrieved by the publicity.... It is only when there is such a major misrepresentation of his character, history, activities or beliefs that serious offense may reasonably be expected to be taken by a reasonable man in his position, that there is a cause of action for invasion of privacy.

Restatement (Second) of Torts § 652E, comment c. See also: Chicarella v. Passant, 343 Pa.Super. 330, 494 A.2d 1109 (1985); Harris by Harris v. Easton Publishing Company, 335 Pa.Super. 141, 483 A.2d 1377 (1984).

This count of appellant’s complaint was correctly dismissed by the trial court. In the first place, there was not the kind of “publicity” envisioned by the Restatement when it defined the tort of invasion of privacy. Appellant neither alleged nor showed such “publicity.” The only communication appearing from the pleadings and discovery was that necessary to enable the defendant employer to make a decision regarding the termination of appellant’s employment.

Such communication, moreover, cannot be deemed highly offensive to a reasonable person. An employee must expect and cannot complain when his or her performance on the job is examined and evaluated by a superior. This time-honored procedure was not intended to be made tortious by Section 652E of the Restatement (Second) of Torts.

A cause of action for intentional interference with a contractual relationship may be sustained even though the employment relationship is at-will. Yaindl v. Ingersoll-Rand Co., 281 Pa.Super 560, 575 n. 6, 422 A.2d 611, 618 n. 6 (1980), quoting Restatement (Second) of Torts § 766, comment g. However, since a corporation can act only through its agents, and Barnes, the individual defendant, has been identified in appellant’s complaint as the agent of CSC, there is no third party against whom an action for intentional interference with a contractual relationship can lie. See: Ramsbottom v. First Pennsylvania Bank, N.A., supra; Daniel Adams Associates v. Rimbach Publications Co., 360 Pa.Super. 72, 519 A.2d 997 (1987), alloc. denied, 517 Pa. 599, 535 A.2d 1057 (1987); Martin v. Capital Cities Media, Inc., supra.

It is patently clear, therefore, that appellant has been unable to posit a legally cognizable cause of action on account of the termination of his employment. As such, the trial court properly entered summary judgment in favor of appellee-defendants.

Since appellant has failed to allege any underlying cause of action, his claim for punitive damages must also fail.

The order granting appellees’ motions for summary judgment is affirmed.


source: Caselaw Access Project

author: KELLY, Judge: DEL SOLE, Judge,

license: Public Domain

text:
    578 A.2d 13
    Charles L. WESCHLER and Ruth Weschler, His Wife, Appellant, v. Patricia L. CARROLL, Administratrix of the Estate of Francis B. Carroll, A/K/A F. Bonner Carroll, Appellee.
    Superior Court of Pennsylvania.
    Argued Dec. 6, 1989.
    Decided July 11, 1990.

      John E. Quinn, Pittsburgh, for appellant.
    F.W. Bode III, Pittsburgh, for appellee.
    Before DEL SOLE, KELLY and HESTER, JJ.
   KELLY, Judge:

In this appeal we are called upon to determine whether the trial court properly precluded the appellant-husband’s testimony under the provisions of the Dead Man’s Act (42 Pa.C.S.A. § 5930) as to the facts surrounding an alleged accident in which there were no witnesses other than the appellant-husband and the decedent, when the appellants sought only to recover against the decedent’s automobile liability insurance policy and not his estate. We find the trial court correctly applied the statute, and properly precluded the appellant-husband’s testimony.

The relevant facts and procedural history are as follows. The appellant-husband, Charles L. Weschler, was injured when he was allegedly struck by an automobile driven by Francis B. Carroll while he was attempting to cross a street designated for bus traffic only. There were no witnesses to this alleged accident other than the participants. Francis B. Carroll died of natural causes before the appellants were able to file suit against him; therefore, the appellants brought suit against Patricia L. Carroll, the appellee, as the administratrix of the decedent’s estate, seeking to recover for personal injuries and loss of consortium. By admission, the appellants stipulated that the coverage provided by the decedent’s insurance policy would be sufficient to satisfy their claims.

At the commencement of the non-jury trial, the appellee motioned to preclude the appellant-husband from testifying about the events surrounding the accident pursuant to the provisions of the Dead Man’s Act (42 Pa.C.S.A. § 5930). The trial court granted the appellee’s motion, and upon the appellant’s request entered a verdict in favor of the appellee. Post-trial motions were filed and denied. This timely appeal followed.

The primary issue presented in this appeal is whether the terms of the Dead Man’s Act preclude the appellant-husband from testifying as to the circumstances surrounding an alleged accident in which there were no witnesses other than the appellant-husband and the decedent, when the appellants seek to recover only against the decedent’s automobile liability insurance policy, and have not made any claims against the assets contained in the decedent’s estate. In order to decide this issue we must first look to the pertinent part of the Dead Man’s Act which provides:

... in any civil action or proceeding, where any party to a thing or contract in action is dead ... and his right thereto or therein has passed ... to a party on the record who represents his interest in the subject in controversy, neither any surviving party to such thing or contract, nor any other person whose interest shall be adverse to a competent witness to any matter occurring before the death of said party.

42 Pa.C.S.A. § 5930 (emphasis added).

The Dead Man’s Act is an exception to the general rule of evidence in this Commonwealth that: “no interest or policy of law ... shall make any person incompetent as a witness.” 42 Pa.C.S.A. § 5921. The purpose of the statute is to prevent the injustice that may result from permitting a surviving party to a transaction to give testimony favorable to himself and adverse to the decedent, which the decedent’s representative would be in no position to refute by reason of the decedent’s death. In Re Estate of Hall, 517 Pa. 115, 535 A.2d 47 (1987).

Under the Dead Man’s Act three conditions must exist before the surviving party or witness is disqualified: “(1) the deceased must have had an actual right or interest in the matter at issue, i.e. an interest in the immediate result of the suit; (2) the interest of the witness—not simply the testimony—must be adverse; (3) a right of the deceased must have passed to a party of record who represents the deceased’s interest.” In Re Hendrickson’s Estate, 388 Pa. 39, 45, 130 A.2d 143, 146-47 (1957).

The appellants contend, because they have agreed by stipulation to limit any possible recovery to the terms of the decedent’s automobile insurance, the decedent has no actual right or interest at stake in the outcome of the litigation as required by the Hendrickson test. The appellants argue that because the decedent’s estate will not be diminished in any way, shape, or form if the appellants were to recover against the decedent’s automobile insurance policy, the trial court erred in applying the Dead Man’s Act and precluding the appellant-husband from testifying about the circumstances surrounding his accident with the decedent. We find this contention to be without merit.

Our Supreme Court has ruled on this precise issue in Lyons v. Bodek’s Estate, 393 Pa. 131, 142 A.2d 199 (1958). In Lyons, the appellant brought an action against the decedent’s estate for injuries she suffered in a fall in the laundry room of the decedent’s apartment building. As in the instant case, the appellant sought to evade the provisions of the Dead Man’s Act which prohibited her testimony by appellant limiting her claim to the maximum amount allowed by the decedent’s liability insurance policy. The Supreme Court held that the prohibitions against the testimony of the surviving party against the deceased party were absolute, unless waived by the decedent’s estate, without regard to the existence or non-existence of liability insurance. Lyons v. Bodek’s Estate, supra, 142 A.2d at 200.

The holding in Lyons v. Bodek’s Estate, supra, that the presence of liability insurance does not alter the prohibitions against the surviving party’s testimony against the decedent is directly applicable and the controlling law in this case. “An insurance policy is a special agreement of indemnity with the person insuring against such loss or damage that he may sustain.” First National Bank of Jessup v. Cappellini, 149 Pa.Super. 14, 26 A.2d 119 (1942). (Emphasis added). In order for the appellants to be entitled to recover from the decedent’s insurance policy, there must first be a finding of liability on the part of the decedent. The fact that an insurer is in better financial position to absorb the loss does not justify creating liability where none exists. Rothman v. Fillette, 503 Pa. 259, 469 A.2d 543 (1983).

The only evidence the appellants sought to present concerning the decedent’s liability for the appellant-husband’s injuries is the appellant-husband’s own testimony about the alleged accident. As the appellant-husband and the decedent were the only two witnesses to this alleged accident, the decedent’s estate is in no position to refute the appellant-husband’s testimony concerning the decedent’s liability for the appellant-husband’s injuries. This scenario is exactly the type of injustice that the Dead Man’s Act seeks to prevent by its prohibition of the surviving party’s testimony. See In Re Hall’s estate, supra; In Re Estate of Stauffer, 504 Pa. 626, 476 A.2d 354 (1984); Estate of Kofsky, 487 Pa. 473, 409 A.2d 1358 (1979); Weaver v. Walsh, 325 Pa. 571, 191 A. 3 (1937). Accordingly, we conclude that the trial court properly excluded the appellant-husband’s testimony.

Moreover, we find the appellant’s attempt to circumvent the Dead Man’s Act by offering to limit their claim to the maximum amount allowed by the decedent’s insurance policy to be contrary to both the provisions of the decedent’s insurance policy, and the law of Pennsylvania. As stated earlier in this opinion, the purpose of insurance is to indemnify the insured against liability. First National Bank of Jessup v. Cappellini, supra. The insurance policy in the instant case clearly states that the decedent’s insurer will defend him if he is sued as a result of an auto accident. The policy contains a cooperation clause which states that in order for the insured to be entitled to indemnity under the insurance policy, the insured must assist the insurer in defending against any claims made against the insured under the policy. This cooperation includes helping the insured to secure evidence, obtain witnesses, and attending any trial. The cooperation clause also states that the insurer is not obligated if the insured voluntarily makes payments or takes any action which would be detrimental to the insurer’s ability to defend a lawsuit against the insured. The cooperation clause requires that the insured must aid the insurer in defending against the claim to the fullest possible extent in order to maintain his right to be indemnified by the insurer. Paxton National Insurance Co. v. Brickajlik, 513 Pa. 627, 522 A.2d 531 (1987); Prudential Property and Casualty Co. v. Erie Insurance Co., 660 F.Supp. 79 (E.D.Pa.1986).

Instantly, because the insured is deceased, the administratrix of his estate assumes the same duties and obligations that the decedent had to the insurer under the insurance contract. Any action by the decedent’s administratrix which would prejudice the insurer’s ability to defend against the claim, such as waiving the provisions of the Dead Man’s Act, could properly be deemed by the insurer as a material breach of the policy’s cooperation clause, and thus preclude the estate’s right to indemnification under the decedent’s auto liability insurance policy. See Paxton National Insurance v. Brickajlik, supra.

Consequently, under the terms of the cooperation clause of the insurance policy, it was the duty of the administratrix of the decedent’s estate to assert the prohibition of the appellant-husband’s testimony under the Dead Man’s Act in order to protect the estate’s right to indemnification under the decedent’s automobile liability insurance policy. Any waiver by administratrix of the decedent’s estate’s right to assert the Dead Man’s Act would be contrary to the terms of the insurance policy’s cooperation clause, thus rendering the estate rather than the insurance company liable for any judgment rendered in favor of the appellants.

Moreover, if the administratrix had waived the estate’s protection under the Dead Man’s Act, and her waiver had resulted in the loss of the estate’s right to indemnity under the insurance policy, she might be held personally liable to the estate for any judgment rendered against it. In Re Kurkowski Estate, 487 Pa. 295, 409 A.2d 357 (1979) (an administratrix who fails to use common skill and ordinary caution may be held liable for losses to the estate which resulted therefrom).

The foregoing demonstrates the illusory nature of the suggested dichotomy between the interests of the decedent’s estate and the decedent’s insurer in this case. The policy behind the Dead Man’s Act plainly applies to the insurance interests of the estate as well as to the estate in general.

However, it is important to note the limits of the Dead Man’s Act. While the appellant-husband’s testimony was properly barred by the Dead Man’s Act, the appellants were free to present other evidence of fault in support of their claims. See Mitchell v. Stolze, 375 Pa. 296, 100 A.2d 477 (1953) (proof of a traffic violation and circumstantial evidence are admissible under the Dead Man’s Act to prove liability); In Re Hall’s Estate, supra (a disinterested witness’ testimony is not barred by the Dead Man’s Act). Because the appellants presented no such evidence, we are constrained to affirm judgment entered in favor of the appellee.

Order Affirmed.

DEL SOLE, J., concurs.

DEL SOLE, Judge,

concurring.

I concur in the result of the majority. This case is clearly controlled by our Supreme Court’s decision in Lyons v. Bodek’s Estate, 393 Pa. 131, 142 A.2d 199 (1958). Any discussion of the operation of the cooperation clause in the insurance policy is superfluous.


author: POPOVICH, Judge:

text:
    578 A.2d 17
    Jon C. CLAPPER, Appellee, v. Linda R. CLAPPER, Appellant.
    Superior Court of Pennsylvania.
    Argued May 2, 1990.
    Decided July 11, 1990.

      Joseph B. Policicchio, Somerset, for appellant.
    Vincent J. Barbera, Somerset, for appellee.
    Before CIRILLO, President Judge, and POPOVICH and BROSKY, JJ.
   POPOVICH, Judge:

This is an appeal from a final order entered in the Court of Common Pleas of Somerset County denying appellant Linda Clapper’s petition to allow her to relocate to Connecticut with the parties’ two children. We affirm the trial court’s order.

Linda and Jon Clapper were married on April 5, 1975. On November 10, 1980, the couple had a daughter, Jessica Clapper. On December 27, 1983, their son Jon Clapper was born. Since the parties’ separation in May, 1987, the Clappers have shared legal and physical custody of the children. Mrs. Clapper has maintained primary physical custody. The record clearly indicates that both parents play active roles in the children’s lives. Additionally, the trial court concluded that both parents are fit. See Trial Court opinion, at 4, 6, 7. A review of the record also reveals that the children love Jon and Linda equally and seem comfortable with the present custody arrangement. See N.T., August 2, 1989, at 31-38.

In June, 1989, Mrs. Clapper informed Mr. Clapper that she intended to move to Connecticut with the children. Mr. Clapper refused to consent to the proposed relocation. On July 3, 1989, Mrs. Clapper filed a petition for leave to relocate. Mr. Clapper filed his answer to Mrs. Clapper’s petition, together with a petition for sole physical custody. Mr. Clapper indicated that if Mrs. Clapper and the children remained in Somerset County, he would not pursue the latter petition. Consequently, a hearing was held on August 2, 1989 to determine whether Mrs. Clapper should be allowed to relocate with the children. After the hearing, the trial court denied Mrs. Clapper’s petition as being contrary to the best interests of the children. This appeal followed.

We are now faced with the difficult task of determining whether the trial court erred in denying Mrs. Clapper’s petition to relocate and whether the trial court’s order forbidding Mrs. Clapper from removing the children to Connecticut was a violation of Mrs. Clapper’s constitutional right to travel. Before we discuss Mrs. Clapper’s appeal, it is important, and necessary, that we clarify the real issue in this case.

This is not an ordinary custody dispute. Both parties, as well as the children, are satisfied with the present custody arrangements. The issue in this case is where the Clapper children should live. Nevertheless, we are governed by one standard: the best interests of the children. Murphey v. Hatala, 350 Pa.Super. 433, 438-39, 504 A.2d 917, 920 (1986). We have reiterated this notion time and time again. See Albright v. Commonwealth ex. rel. Fetters, 491 Pa. 320, 323, 421 A.2d 157, 158 (1980). In determining what will serve the best interests of the children, the trial court must consider all of the facts and circumstances of a given case. Commonwealth ex. rel. Oxenreider v. Oxenreider, 290 Pa.Super. 63, 68, 434 A.2d 130, 133 (1981) (“the hearing court must provide this court not only with a complete record, but also with a complete and comprehensive opinion which contains a thorough analysis of the record and specific reasons for the court’s ultimate decision”) (citations omitted); Commonwealth ex. rel. Steiner v. Steiner, 257 Pa.Super. 457, 390 A.2d 1326 (1978). A parent’s decision to move out of state, for instance, would be but one factor to consider in assessing the childrens’ best interests. In re Custody of Phillips, 260 Pa.Super. 402, 394 A.2d 989 (1978); Commonwealth ex. rel. Steiner v. Steiner, 257 Pa.Super. 457, 463, 390 A.2d 1326, 1329 (1978). Here, we are to consider where the children’s best interests will be served—in Somerset or in Connecticut.

This Court has not specifically addressed the issue of whether a denial of a parent’s petition to relocate with the children represents an unconstitutional travel restriction. However, we have noted that “Pennsylvania courts no longer adhere to a preference favoring a resident custodial parent.” Daniel K.D. v. Jan M.H., 301 Pa.Super. 36, 44, 446 A.2d 1323, 1326 (1982) (citations omitted). Moreover, “[t]o condition an award of custody upon [a party’s] agreeing to remain within Pennsylvania would be ‘an undue interference with the [party’s] freedom of movement.’ ” Id., 301 Pa.Superior Ct. at 44, 446 A.2d at 1327 (citations omitted) (emphasis added). See also Lozinak v. Lozinak, 390 Pa.Super. 597, 569 A.2d 353 (1990) (dissent, Popovich, J. ). In each (custody) case, we stressed that the strength and stability of the relationship between the parents and the children was of the utmost importance. See also Fisher v. Fisher, 370 Pa.Super. 87, 535 A.2d 1163 (1988) (“Courts have long recognized the importance of a continuing and stable custodial relationship with a parent which satisfactorily serves the child’s needs.”) The potentially adverse effect of interstate movement was not the focus of our decisions. We do not dispute that a child of tender years will adjust to new environments. The question is whether that move will be in the child’s best interest. See Daniel K. D. v. Jan M.H., 301 Pa.Super. 36, 44-45, 446 A.2d 1323, 1326-27 (1982); see also Commonwealth ex. rel. Pierce v. Pierce, 493 Pa. 292, 426 A.2d 555 (1981) (parent’s intention to relocate with the child was not the controlling factor in a custody dispute); Commonwealth ex. rel. Steiner v. Steiner, 257 Pa.Super. 457, 463, 390 A.2d 1326, 1329 (1978) (there are “circumstances where a court may properly consider the effects of a change of location,” however, to deprive a mother of custody because of a proposed move represents an undue interference with her freedom to travel). Finally, in Davidyan v. Davidyan, 230 Pa.Super. 599, 327 A.2d 145 (1974) we held:

Appellee’s intention of taking the boy to Scotland does not necessitate a reversal of the decision below. The fact that the child will be removed to a place outside the Commonwealth is not controlling. ‘The paramount consideration is at all times the best interests and welfare of the child, which includes its physical, intellectual, moral and spiritual well-being, and all other considerations are subordinate.’

Id., 230 Pa.Superior Ct. at 604-05, 327 A.2d at 148 (citations omitted) (emphasis added).

The instant case is difficult. Both parents are fit; both parents want what is best for their children. Additionally, both parents have been very cooperative with one another in an effort to facilitate warm relationships with the children at minimal emotional costs. However, the record in this case reveals that Mrs. Clapper wants to move to Connecticut to better her education, occupational skills and opportunities and quality of life. The record, read in its entirety, supports the trial court’s finding that Mrs. Clapper’s goals are related to self-improvement. See N.T., August 2, 1989, testimony of Linda Clapper, at 72-140. See also Trial Court opinion, at 5, 8-9. While we can not fault Mrs. Clapper for wanting to better her life, she may be accomplishing her goals at the expense of the children. The effect of the move would be to uproot Jessica and Jon from familiar and congenial surroundings and to remove them from their father, who up to this time has maintained a steady and frequent relationship with his children.

In Mumma v. Mumma, 380 Pa.Super. 18, 550 A.2d 1341 (1988), this Court aptly stated our standard and scope of review:

In an appeal of a child custody determination made by a trial court, the paramount concern must be the best interest of the child. In reviewing a custody order, we are not bound by findings of fact made by the trial court which are unsupported in the record, nor are we bound by the court’s inferences drawn from the facts. However, on issues of credibility and weight of the evidence, we defer to the findings of the trial judge, who has had the opportunity to observe the proceedings and the demeanor of the witnesses. Only where we find that the custody order is “manifestly unreasonable as shown by the evidence of record ...” will an appellate court interfere with the trial court’s determination. Therefore, unless the trial court’s ruling represents a gross abuse of discretion, we will not interfere with its order awarding custody.

Id., 380 Pa.Superior Ct. at 21, 550 A.2d at 1343 (citations omitted); see also Commonwealth ex. rel. Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800 (1984). In the instant case, we defer to the trial court’s findings of fact, ably set forth in its opinion. The record adequately reflects the trial court’s conclusion that the children’s best interests would be served by remaining in Somerset. In that way, the status quo would be maintained and the children could continue to spend quality time with their father on a consistent basis.

Although it is unfortunate that by the trial court’s decision, Mrs. Clapper felt penalized for her efforts to better her life and that of her children, the issue preserved for our review is whether the trial court erred in determining the best interest of the children. We cannot conclude that it erred. As the primary caretaker, it is Mrs. Clapper’s duty to provide for her children’s best welfare even though as a result she is forced to make a personal sacrifice. We do not reach the merits of Mrs. Clapper’s claim that her constitutional right to interstate movement was violated in this case. Rather, the trial court correctly concentrated on providing the best life for Jessica and Jon and decided, based on all of the evidence and the pertinent law, that the children’s best interests would be served if they remained in Somerset. Commonwealth ex. rel. E.H.T. v. R.E.T., 285 Pa.Super. 444, 427 A.2d 1370 (1981) (trial judge is in the best position to evaluate attitudes, sincerity, credibility, and demeanor of witnesses; therefore, his/her determinations should be accorded great weight).

Order affirmed.

      . Mr. Clapper was awarded physical custody of the children for visitation purposes every Tuesday evening, every other weekend from Friday night through Sunday night, and for six weeks during the summer. Additionally, the custody agreement provides for rotating major holidays between the parties.

      . On January 11, 1989, the parties entered into a “Property and Settlement Agreement.” The agreement includes concessions regarding custody and visitation. In pertinent part, the agreement reads:
      The parties hereby agree to share legal and physical custody of the children with Wife being primary physical custodian of said children at all times, except the following times, when Husband shall be the physical custodian of said children....
      Husband and Wife expressly agree that it is in the best interests of the minor children to continue to maintain a loving and warm relationship with both parents and to that end, both parties pledge themselves to foster continuing access to themselves for their children and to cooperate in every manner with one another so as not to estrange the children from the other or to disrupt the relationship with each now enjoyed by the children.
      Husband and Wife agree that if either party moves from Somerset County, notice in writing shall be given to the other party at least ninety (90) days in advance of said move, and in the event that said notice is not given, sole custody of said children is given by the parties hereto to the party hereto who has not moved from Somerset County.

        On April 13, 1989, a divorce decree was signed by the trial court, incorporating by reference the above agreement in its entirety.

        See Property Settlement Agreement, January 11, 1989, at 11-12; Trial Court opinion, at 2-4, 6-7.

      . Mrs. Clapper also requested that the trial court fashion a new visitation schedule.

      . The hearing that was conducted in the trial court was not a full-blown custody hearing; the parties limited themselves to the issue of whether Mrs. Clapper should be permitted to remove the children to Connecticut.

      . Conversely, the Pennsylvania Supreme Court has mandated that when cases contain both constitutional and non-constitutional issues, we should not reach the constitutional issues if the case may properly be decided on non-constitutional grounds. Ballou v. State Ethics Commission, 496 Pa. 127, 436 A.2d 186 (1981); Mt. Lebanon v. County Bd. of Elections, 470 Pa. 317, 322, 368 A.2d 648, 650 (1977). Moreover, the right to travel is not absolute. See In re Mack, 386 Pa. 251, 256, 126 A.2d 679, 681 (1956) ("it is accepted constitutional doctrine that [certain] fundamental human rights are not absolute"); Fischer v. Commonwealth Dep’t of Public Welfare, 85 Pa.Commw. 240, 256-58, 482 A.2d 1148, 1157 (1984) (accord).

      . The Davidyan Court also noted that
      The purpose of the general proposition that the court will hesitate to place a child outside its jurisdiction is to insure that a normal relationship with both parents will be maintained.... Custody orders seldom are satisfactory to both parties.

        Id. at 605, 327 A.2d at 148-49. The instant case presents a situation where the custody schedule is working. Both children are maintaining good relationships with both parents on a consistent basis.

      . We believe that the record supports the trial court’s assertion that Defendant has not produced very convincing evidence of any special need to move the children to Danbury, Connecticut. She has no family in or near Connecticut and knows only one person in New York within a reasonable distance. Her family is in Pittsburgh. The employment that she has [considered] in Connecticut is as a Registered Nurse and she is qualified to do that in Western Pennsylvania the same as she would in Connecticut. While it appears that her salary might be more in Connecticut, the evidence indicates that living expenses would more than eat up the increase in salary.... We are convinced that even though Defendant would be very liberal with visitation rights for the children with their father, the move would seriously, adversely affect the relationship the children now have without, on the other hand, increasing substantially the quality of life for the Defendant.
      Trial Court opinion, at 8-9.

      . We do not doubt that Mrs. Clapper’s ultimate intentions are to benefit her children; however, there are no guarantees that the children will not endure undue hardship in the process. More importantly, if the children are moved to Connecticut, their relationship with their father will be affected by a distance of approximately 400 miles.

      . See N.T., August 2, 1989, testimony of Jon Clapper, at 142-178.

      . Specifically, we accept the trial court’s pronouncement that [t]he children appear happy and satisfied in their present surroundings. They see their father frequently with very little travel necessary, they can and do see their grandparents frequently as well as the extended family and have many friends here. They want to stay here and spend more time with their father.
      Trial Court opinion, at 8.

      . We stress that here, the trial court is not conditioning custody on Mrs. Clapper’s move. It decided that the children's best interest will be served in Somerset, with their mother but close to their father, as opposed to in Connecticut, again with their mother, but distanced from their father. The trial court was satisfied that the children should remain with their primary caretaker. However, after analyzing the situation as a whole, the trial court concluded that the children had substantial ties to Somerset and to their father, and that a close, constant relationship with both parents would best serve the children’s welfare. The trial court’s decision did not focus on Mrs. Clapper’s interests in Connecticut, because that evaluation in and of itself both discounts and masks the true issue in this case: what is the best interest of the children?


author: POPOVICH, Judge.

text:
    578 A.2d 21
    Kenneth L. PASTORE, Appellant, v. ANJO CONSTRUCTION COMPANY, a Corporation, National Pipe Company, a Corporation, v. BENACK PLUMBING COMPANY, Appellees.
    Superior Court of Pennsylvania.
    Argued May 2, 1990.
    Decided July 13, 1990.

      J. Kerrington Lewis, Pittsburgh, for appellant.

      Charles H. Alpern, Pittsburgh, for ANJO, appellee.
    Before CIRILLO, President Judge, and POPOVICH and BROSKY, JJ.
   POPOVICH, Judge.

This case involves an appeal from an order of the Court of Common Pleas of Allegheny County granting a motion for summary judgment in favor of the defendant/appellee (Anjo Construction Company) and appealed by the plaintiff/appellant (Kenneth L. Pastore). We affirm.

In reviewing the grant or denial of a motion for summary judgment, we are required to adhere to the same standard of review; to-wit:

In determining whether the order [entering or denying summary judgment] is to be affirmed, we are required under Pa.R.Civ.P. 1035(b) to examine the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, to ascertain whether the record shows that there is no genuine issue as to any material facts and that the moving party is entitled to a judgment as a matter of law.

Chiricos v. Forest Lakes Council, Boy Scouts of America, 391 Pa.Super. 491, 493, 571 A.2d 474, 475 (1990). Under such a standard, the record evidences that on the morning of September 15, 1987, the plaintiff was directed by his foreman, John Michael Gecz, to remove some of the sand covering an eight-inch diameter plastic pipe resting ten to twelve feet below ground and intended for the transit and treatment of elephant waste in the newly constructed section of the Pittsburgh zoo. It seems that a leak had been detected by the pressurized air test performed on the pipe by Mr. Gecz, who was told to conduct such a test up to a level of one hundred pounds pressure per square inch by his employer and subcontractor on the job, Benack Plumbing Company. In turn, the general contractor (Anjo Construction Company) was hired by the City of Pittsburgh to do the on-site renovations to the zoo and had the specifications for the pressurized test as a requirement in the building contract.

As the plaintiff was removing the sand as ordered, the pipe exploded and trapped his ankle against the wall of the trench where the pipe lay. With the use of a “digging bar”, the foreman was able to pry the pipe from the plaintiffs leg. Thereafter, the plaintiff was removed from the site and treated by paramedics. Following this, the plaintiff filed a complaint, on December 6, 1986, alleging that Anjo Construction Company, who had hired his employer (Benack Plumbing Company) to test the eight-inch pipe line, engaged in negligent and careless conduct leading to his serious and permanent damages and injuries.

An answer with new matter was filed by Anjo Construction Company on February 4, 1987, wherein it countered with a denial that it was negligent or careless in any manner sufficient to be labelled a proximate cause of the plaintiffs injuries. It did admit, however, that the plaintiff was the employee of Benack Plumbing Company, an independent contractor or subcontractor hired as an “expert” to perform tests on the eight-inch pipe line. In the new matter portion of its reply, Anjo Construction Company alleged that the plaintiff, as an employee of Benack Plumbing Company, was acting “under the direct supervision and instructions of ... Benack or ... representatives of Benack” when he entered the trench where the eight-inch pipe had been placed. It was alleged further that the plaintiffs claim was barred because of his conduct, in whole or in part by reason of his contributory negligence under the Pennsylvania Comparative Negligence Act or because he voluntarily assumed the risk of injury.

By complaint of even date, Anjo Construction Company joined Benack Plumbing Company as an additional defendant. The first count sounded in negligence and averred that Benack Plumbing Company, as an independent contractor employing the plaintiff, acted in a careless and negligent manner causing the plaintiffs injuries. The second count recited a claim for a breach of contract—indemnification on the part of the additional defendant “to save and hold harmless” Anjo Construction Company from liability and damages. In particular, Article 5 of the contract (captioned “Insurance”) between Anjo Construction Company (contractor) and Benack Plumbing Company (subcontractor) provided that:

Such [subcontractor shall indemnify and hold harmless the contractor from and against any and all payments of liabilities for payment and compensation or damages which the contractor may be required or obligated to make to or on account of subcontractor’s own employees, and also indemnify and hold harmless the contractor from and against any and all losses, liabilities, suits or obligations of any kind, paid or incurred by the contractor on account of the act, neglect or default of the subcontractor.

On February 26, 1987, the plaintiff filed a reply to Anjo Construction Company’s new matter in which he admitted his employee status with Benack Plumbing Company but claimed that he was “acting under the direct supervision or instruction of ... Anjo Construction Company who had the responsibility and authority to direct, manage and/or operate the construction project where the injury occurred.” Further, the plaintiff denied assuming the risk of injury or participating in any negligent conduct contributing to his injuries.

Between the time the last pleading just mentioned was filed and December 5, 1988, the date Anjo Construction Company prepared a petition to amend new matter, the parties engaged in an exchange of interrogatories, the deposing of several individuals and the dismissal of G.W. S.M., Inc. as a party to the suit.

In Anjo Construction Company’s December 5th petition, it alleged that following the initial complaint, “[s]ubsequent investigation and discovery ha[d] revealed the relationship of [Anjo] to plaintiff as his statutory employer”, and, as a result, Anjo Construction Company sought to amend its new matter “so as to plead the defense of statutory employer as an applicable bar to liability”, i.e., pursuant to section 203 of the Workmen’s Compensation Act, 77 P.S. § 52.

The plaintiff’s answer to the petition contended that Anjo Construction Company was not his statutory employer and that he would be prejudiced (by having to re-depose all the parties and their agents) if the amendment were allowed, and that the statute of limitations had run on the allowance of any such amendment. At the direction of the motions’ judge, Anjo Construction Company filed in more detail the basis for its argument that it met the statutory employer criteria set forth under the Workmen’s Compensation Act and case law interpreting the same.

In the plaintiff’s reply brief to Anjo Construction Company’s efforts to have itself labelled the plaintiff’s statutory employer, he argued that Article 16 of the contract between Benack Plumbing Company and Anjo Construction Company specifically provided that Benack was an “independent contractor” whose “employees” were not to be construed as employees of the “owner” (City of Pittsburgh) or the “contractor” (Anjo). Additionally, the plaintiff pointed to the defendant’s admission in paragraph 5 of its answer that

Benack was an independent contractor and deposition testimony of its corporate designee that “ANJO was not responsible to oversee testing procedures,” and further that Anjo did not “see itself in control of the construction site.” Also, Anjo’s citation to the “plaintiff’s laborer’s vague deposition testimony to avoid the force of the contract” was urged by the plaintiff as contrary to Anjo’s earlier pleadings and its corporate designee’s testimony.

The court below ruled in favor of Anjo Construction Company and permitted it to amend its new matter to assert a statutory employer defense. Thereafter, Anjo filed a motion for summary judgment asserting that it had established through pleadings and deposition testimony all of the elements necessary to supports its defense of “statutory employer”, and, consequently, it was immune from suit for common law negligence pursuant to the Pennsylvania Workmen’s Compensation Act. By order dated October 20, 1989, the court below granted Anjo’s motion. This appeal followed and raises for our consideration the questions of whether Anjo could be designated as a statutory employer when it expressly provided otherwise in its contract with Benack, and whether the applicable statute of limitations barred such an amendment.

With regard to the first issue proffered, it is undisputed that Article 16 of the contractual agreement between Anjo and Benack provided in relevant part that:

The subcontractor [Benack] expressly acknowledges that he is an independent contractor, and nothing herein contained shall be construed to constitute the subcontractor ... or any of their respective ... employees, as an employee of the owner or the contractor [Anjo].

However, as stated by our Supreme Court in disregarding similar contractual language in interpreting a contract under the Workmen’s Compensation Act:

“Courts will not be controlled by the nomenclature the parties apply to their relationship.” ... “ ‘Neither the form of a contract nor the name given it by the parties controls its interpretation. In determining the real character of a contract courts will always look to its purpose, rather than to the name given it by the parties. * * * The proper construction of a contract is not dependent upon any name given it by the parties, or upon any one provision, but upon the entire body of the contract and its legal effect as a whole.’ ”

Capozzoli v. Stone & Webster Engineering Corp., 352 Pa. 183, 186-187, 42 A.2d 524, 525 (1945) (Citations omitted). Accord Rolick v. Collins Pine Co., 708 F.Supp. 111, 114 (W.D.Pa.1989) (Mere labelling of someone as an independent contractor in an agreement does not determine his legal status. The court must make an independent evaluation of the terms of the contract and of all the surrounding circumstances); Temple v. Milmont Fire Co., 106 Pa.Cmwlth 120, 125-27, 525 A.2d 848, 850 (1987) (Employee may have more than one employer under the Workmen’s Compensation Act; all such employers under the Act are entitled to immunity in Section 303, 77 P.S. § 481). With this in mind, we are guided by the added fact that the status of “statutory employer” in the Workmen’s Compensation Act is defined as follows:

An employer who permits the entry upon premises occupied by him or under his control of a laborer or an assistant hired by an employe or contractor, for the performance upon such premises of a part of the employer’s regular business entrusted to such employe or contractor, shall be liable to such laborer or assistant in the same manner and to the same extent as to his own employe.

Act of June 2, 1915, P.L. 736, Art. II, § 203, as amended, 77 P.S. § 52. Lastly, we add to this equation the unqualified statement of the Pennsylvania Supreme Court, in interpreting section 203 (77 P.S. § 52), that five conditions need to be satisfied to create the relationship of “statutory employer” and, thus, avoid liability at common law. They are: (1) An employer who is under contract with an owner or one in the position of an owner. (2) Premises occupied by or under the control of such an employer. (3) A subcontract made by such an employer. (4) Part of the employer’s regular business is entrusted to such a subcontractor. (5) An employee of such a subcontractor. See McDonald v. Levinson Steel Co., 302 Pa. 287, 294-295, 153 A. 424, 426 (1930).

McDonald acknowledges “ ‘the very great care which must be exercised before allowing an employer to avoid his liability at common law by asserting that he is a statutory employer. Section 203 of the Workmen’s Compensation Act, which was designed to extend benefits to workers should not be casually converted into a shield behind which negligent employers may seek refuge.’ ” Travaglia v. C.H. Schwertner & Son, 391 Pa.Super. 61, 65, 570 A.2d 513, 518 (1989), quoting Stipanovich v. Westinghouse Electric Corp., 210 Pa.Super. 98, 106, 231 A.2d 894, 898 (1967).

When we examine the pleadings and some of the deposition testimony, in particular Benack’s foreman’s account of the chain of command on the work-site, it is obvious to this Court that the five-part McDonald test has been met.

As to point (1), an employer who is under contract with an owner or one in the position of owner, Anjo had agreed with the owner of the zoo, the City of Pittsburgh, to perform the needed work at the Savanna Exhibits, i.e., pressure testing the pipe to be installed at the elephant exhibit to a particular level. This work, having been subcontracted by Anjo to Benack, constituted part of its regular business entrusted to such a subcontractor, and, therefore, satisfied points (3) and (4) of the McDonald criteria. Next, we observe that the plaintiff’s employment by Benack, with whom Anjo had subcontracted to do the work in question, complied with point (5). Lastly, point (2), whether the premises upon which the work was being done was occupied or under the control of such an employer/Anjo, necessitates a review of the pleadings in conjunction with the depositions secured.

We begin with the plaintiffs answer to Anjo’s new matter, wherein he denied acting under the direct supervision or instruction of anyone other than Anjo “who had the responsibility and authority to direct, manage and/or operate the construction project where the injury occurred”, and denied that the injuries were the result of any actions other than Anjo’s joint and several careless and negligent conduct of “which they controlled.” Paragraphs 5 and 6.

Additionally, we have the deposition testimony of John Michael Gecz, Benack’s foreman overseeing the work being performed. He recalled that he was pressure testing the pipe because that is what his boss (Guy Benack), Anjo’s foreman (Roger Capretta) and the City of Pittsburgh wanted. He continued that anytime he needed help on the job, Anjo’s foreman sent him one of Anjo’s employees. For example, if a leak occurred, it was Gecz’s understanding that he “would just tell Roger and [Roger] would probably fix [it], or [Gecz] would probably fix it, depending on what [Roger] wanted to do.” In other words, Anjo, once told of a leak, would decide what to do, who would repair it, “and usually [Roger] did all his own repairs.”

In light of the preceding, we have no hesitancy in holding that Anjo was correctly labelled as a “statutory employer” by the court below so as to afford it the ability to secure immunity from suit under the Workmen’s Compensation Act. Compare Travaglia, supra.

Turning now to the second of the appellant’s complaints on appeal, i.e., whether Anjo waived the defense of statutory employer by “steadfastly and for a period of two years asserting] the identity of independent contractor to Plaintiffs suit”, we find it no more persuasive than the initial assertion of the appellant.

It is well-established in this jurisdiction that amendments to pleadings are a matter of judicial discretion and should be liberally allowed except where surprise or prejudice will result or where the amendment is against a positive rule of law. Posternack v. American Casualty Company of Reading, 421 Pa. 21, 24, 218 A.2d 350, 351-352 (1966). The decision whether to allow a proposed amendment of a pleading is within the sound discretion of the court below, and that decision will not be disturbed on appeal absent an abuse of discretion. See McKenna v. Mooney, 388 Pa.Super. 298, 565 A.2d 495 (1989).

As correctly observed by the appellee in its brief to us at pages 13 through 14,

The cases cited by Pastore, for the proposition that a belatedly raised defense of statutory employer is waived, are all inapposite to the facts of this case because the parties seeking to belatedly assert said defense failed to obtain leave of Court as required under Pa.R.C.P. 1033. [Emphasis in original]

Instantly, Anjo did seek leave of court to obtain a right to amend its new matter to assert a defense of statutory employer. As such, we perceive no abuse of discretion in permitting the amendment. Cf. Thatcher’s Drugs v. Consolidated Supermarkets, Inc., 391 Pa.Super. 524, 529, 571 A.2d 490, 492-494 (1990) (Even where leave of court is not obtained to file post-trial motions untimely submitted, the trial court’s addressing such matter preserves it for appeal).

Specifically, the appellant protests that he is prejudiced by the lower court’s allowance of the amendment to Anjo, which, obviously, led to a grant of its motion for summary judgment removing it from the law suit and future liability to him.

Albeit we empathize with the appellant, if we were to reverse the lower court’s actions on the amendment question solely because it adversely affects appellant's ability to hold Anjo accountable, either solely or jointly, for the injuries he incurred, no amendment would ever be permitted since the effect of most amendments is to benefit the amending party. Suffice it to say,

“Prejudice that would prevent the grant of an amendment must be ... something more than a detriment to the other party ‘since any amendment almost certainly will be designed to strengthen the legal position of the amending party and correspondingly to weaken the position of the adverse party____ To make the advantage sought by an amendment operate as a bar to amendment would be to destroy the right to amend except in cases when the moving party would have no reason to amend.’ ”

Sands v. Forrest, 290 Pa.Super. 48, 53, 434 A.2d 122, 125 (1981); Cellutron Products Corp. v. Stewart, 223 Pa.Super. 391, 394, 300 A.2d 900, 901-902 (1972).

Because we find that Anjo was entitled to seek refuge under the cloak of the Workmen's Compensation Act as a “statutory employer”, we see no reason not to affirm the amendment allowance of the court below—it did what it was permitted and required to do under the established law of amendatory pleading. Compare Mackey v. Adamski, 286 Pa.Super. 456, 429 A.2d 28 (1981), wherein this Court reversed the lower court’s refusal to strike the defendants’ new matter (filed four years after suit was initiated) expressly because it was filed untimely without leave of court. Mackey also undermines the appellant’s assertion that the court below lacked subject matter jurisdiction to permit Anjo’s amendment since the case dealt with the Workmen’s Compensation Act.

Order affirmed.

      . In the remaining two counts of his complaint, the plaintiff charged the manufacturer of the plastic pipe (G.W.S.M., Inc.) with selling a defectively designed product to Anjo Construction Company in violation of Restatement (Second) of Torts, § 402 A & B. Also, the plaintiff contended that the manufacturer was liable for his injuries for engaging in numerous “negligent” acts, the sum and substance of which need not be repeated here to aid us in the disposition of this appeal. This same response is applicable to the subsequent joinder of National Pipe Company, on grounds identical to G.W.S.M., Inc., as the manufacturer and/or the supplier of the pipe alleged to have been a cause of the plaintiff's injuries.

      . We would note that the Workmen’s Compensation Act of Pennsylvania, specifically section 303 (77 P.S. § 481), clearly provides a third-party with the right to obtain contribution or indemnification from an injured employee’s employer in the face of an express contractual undertaking. See Gerard v. Penn Valley Constructors, Inc., 343 Pa.Super. 425, 495 A.2d 210 (1985). Because of the manner in which we dispose of the case at hand, we need not delve into the validity and scope of the indemnification provision of Article 5 of the contract between Anjo Construction Company and Benack Plumbing Company.

      . The deposition of the referred to corporate designee is not of record.

      . The third issue appearing in the appellant’s appellate brief at page 2 need not be addressed given the resolution of the first two issues against his interest.

      . Anjo’s brief in support of its motion for summary judgment at pages 5 through 8 recited the pertinent portions of the deposition testimony of the plaintiff, Guy Benack and Robert Capretta, all of whom painted a picture of Anjo being the supervisor on the job-site and the employer for whom Benack Plumbing Company worked. However, because a "brief” is not a substitute for the transcript of the deposition testimony given under oath, we may not rely upon such a brief in making our determination. See McCormick v. Allegheny General Hospital, 364 Pa.Super. 210, 527 A.2d 1028 (1987). Although we could remand for a completion of the record, see Pa.R.App.P. 1926, we find sufficient record evidence to aid us in making our finding in favor of Anjo.


author: KELLY, Judge:

text:
    578 A.2d 27
    COMMONWEALTH of Pennsylvania v. Rodney WELLS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 5, 1990.
    Decided July 17, 1990.
    Petition for Allowance of Appeal Granted Jan. 15, 1991.

      Norris E. Gelman, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before KELLY, POPOVICH and CERCONE, JJ.
   KELLY, Judge:

In this case we are called upon to determine whether the trial court improperly excluded rebuttal evidence offered to impeach a key prosecution witness, and whether counsel’s self-confessed lack of preparation denied appellant a fair trial. We find no merit in either contention and affirm.

On Saturday evening at approximately 8:30 p.m. on December 6, 1980, appellant forced his way into the apartment of Mrs. Laurenstine Johnson of Philadelphia and proceeded to rob the occupants at gun point. Appellant was extremely agitated during the course of the robbery and pistol-whipped both Mrs. Johnson and her teenage son, Timothy Johnson. The mother, the son, and a visiting uncle (who had been upstairs when the robbery began) were shepherded into a bedroom and held at gun point while appellant ransacked drawers in a fruitless search for valuables he apparently believed to be located at that residence. Appellant eventually fled.

After a brief wait to make sure appellant was gone, the victims went downstairs and called the police, who arrived a short time later. Mrs. Johnson’s son, Timothy, was able to positively identify the robber as appellant, an individual Timothy knew from school and the neighborhood. Appellant lived only two blocks away. Mrs. Johnson was taken to the hospital where she received four stitches to close the bleeding head wound she received when appellant pistol-whipped her.

An arrest warrant was issued for appellant the following day, but appellant managed to avoid arrest on that warrant until January 30, 1981, when he was apprehended after a brief foot chase.

Following arraignment appellant was released on a percentage cash bail posted by a third party, and he then promptly fled the jurisdiction. Appellant remained a fugitive for nearly two years, but was eventually reapprehended and brought to trial.

On May 14, 1985, a jury convicted appellant of robbery, burglary, and possession of an instrument of crime. Following the trial, new private counsel was retained and post-verdict motions were filed which asserted, among other things, ineffective assistance of prior counsel. Numerous defense requested continuances followed, and on May 25, 1988, an evidentiary hearing was held finally on appellant’s ineffectiveness claims. Post-verdict motions were denied July 19, 1988, and appellant was sentenced the same day to an aggregate term of 15 to 40 years imprisonment with a consecutive term of five years probation upon eventual release, all of which was to be served consecutively to sentences imposed for unrelated robbery and murder convictions. This timely appeal followed. •

Proffered Rebuttal Evidence

Appellant first contends that the trial court abused its discretion in refusing to permit his sister to testify in rebuttal to impeach the credibility of prosecution witness Timothy Johnson, and to establish both bias and a motive ;for Timothy Johnson to falsely accuse her brother. The actual proffer is detailed in the opinion of the trial court, and may be charitably summarized as follows. Sometime in later 1980 appellant’s sister heard Timothy Johnson berate Rhonda White for seeing appellant and becoming pregnant by appellant while he (Timothy Johnson) was away at school. Counsel sought to have it inferred that Timothy Johnson had a revenge motive to falsely accuse appellant. Appellant argues that the trial court improperly focused upon the possibility that the evidence was perjurious, that the best evidence rule did not apply, and that even though the evidence was hearsay, “motive and bias are usually proved by hearsay testimony.” (Appellant’s Brief at 8-12).

The Commonwealth responds that the trial court in no way abused its discretion. The Commonwealth argues that the evidence was not relevant, was almost certainly perjurious, and was comprised entirely of inadmissible hearsay. The Commonwealth argues further that if there was error, it was harmless beyond a reasonable doubt.

The trial court agreed with the Commonwealth that the evidence was properly excluded because it was not relevant, it was almost certainly perjurious, and it was comprised entirely of inadmissible hearsay.

It is well-settled that “an accused has a fundamental right to present defense evidence, so long as such evidence is relevant and not excluded by an established evidentiary rule.” Commonwealth v. Uhrinek, 518 Pa. 532, 542, 554 A.2d 947, 952 (1988); Commonwealth v. Eubanks, 511 Pa. 201, 209-10, 512 A.2d 619, 624 (1986); Commonwealth v. Greene, 469 Pa. 399, 405, 366 A.2d 234, 237 (1976). The question here is whether “the evidence was relevant and not excluded by an established evidentiary rule.”

With regard to relevance, it is well-settled that the defense is entitled to broad latitude to present even arguably attenuated evidence designed to impeach, discredit, or rebut the testimony of a prosecution witness as biased or being the product of a motive to testify falsely. See Commonwealth v. Borders 522 Pa. 161, 165, 560 A.2d 758, 759-60 (1989); Commonwealth v. Simmon, 521 Pa. 218, 219-25, 555 A.2d 860, 861-64 (1989); Commonwealth v. Peetros, 517 Pa. 260, 272-76, 535 A.2d 1026, 1032-34 (1987). It must be noted however, that each of those cases involved attempts to impeach on cross-examination, or to offer in rebuttal plainly admissible evidence. The issues decided in those cases concerned the balancing of alleged relevance against countervailling privilege or potential prejudice, and not fundamental reliability or admissibility under settled evidentiary rules.

We note initially that we agree with appellant that the evidence was not excludable because other evidence rendered it so incredible as to be irrelevant, or because the evidence was almost certainly perjurious. While the witness may expose himself or herself to perjury charges by offering incredible testimony, the conflicts and inconsistencies in such evidence are for the jury to resolve as finder of fact, and not the trial court in determining admissibility. Cf. In re Investigating Grand Jury (Petition of Lees), 518 Pa. 485, 490, 544 A.2d 924, 926 (1988) (though the judge may have reasonably believed the witness had lied, the only sanction available was a perjury charge, not contempt sanctions); Commonwealth v. Mascitti, 368 Pa.Super. 454, 464, 534 A.2d 524, 529 (1987) (while a witness whose testimony was expected to be perjurious was properly required to testify in narrative form when counsel decline to aid in the perpetration of a fraud on the court, nontheless, the testimony was not excluded), reversed on other grounds, 519 Pa. 235, 546 A.2d 619 (1988).

In the trial court and here on appeal appellant conceded that the evidence excluded was technically inadmissible hearsay. That concession is fatal, as the law plainly requires that the defense evidence offered for impeachment (or any other purpose) not be excludable by an established evidentiary rule. Commonwealth v. Uhrinek, supra.

In point of fact, however, appellant conceded too much, as the proffered evidence actually fell within the accepted exception to the hearsay rule for evidence of prior inconsistent statements of a testifying witness. See generally Binder, Hearsay Handbook, §§ 32.04 (1983 & 1989 supp.). On cross-examination, Timothy Johnson specifically denied even knowing appellant’s girlfriend Rhonda. The prior statement alleged to have been overheard by appellant’s sister was materially inconsistent with Timothy’s testimony. Thus, appellant’s sister’s proffered testimony consisted of an alleged prior inconsistent statement by a testifying witness which was relevant as to credibility and as to potential bias. As such, it was at least arguably admissible.

Nonetheless, even if an ineffectiveness claim had been presented on this issue, counsel could not be deemed ineffective in this respect. Upon careful review of the entire record, we agree with the Commonwealth that the evidence proffered was wholly incredible and of minimal impeachment value given its staleness, while the other evidence against appellant was so overwhelming that any error in this respect would have to be deemed harmless beyond a reasonable doubt. There is no reasonable likelihood that admission of the proffered rebuttal evidence would have altered the verdict in any way.

Hence, we find no merit in the first contention on appeal.

II. Confessed General Ineffectiveness

Appellant’s second contention is that counsel failed entirely to prepare for this case, and that counsel freely admitted that fact. Appellant argues that, despite the absence of any demonstration of actual prejudice, reversal is compelled. We cannot agree.

It must be conceded that prior counsel does not appear to have lived up to his ethical obligations to pursue his client’s interests zealously. Rather, as appellant suggests, counsel seems to have placed far more emphasis on securing his legal fees, than preparing appellant’s defense. (N.T. 5/9/85 at 6; N.T. 5/10/89 at 17).

Indeed, counsel made a rather dramatic self-accusation of ineffectiveness at the close of appellant’s trial:

MR. RENFROE: What can I say when I have no evidence? I have no witnesses whatsoever. This is a clear-cut ineffectiveness assistance of counsel case, as this court knows. I have not presented any defense, not one witness have I presented, there’s nothing I can say to combat the three witnesses who testified against my client, Rodney Wells, as being the one that came into their house on the day in question. I haven’t presented any defense to the contrary. How can I give a closing argument? There is no closing argument for me to give. THE COURT: You are going to get up and give a closing argument. If you don’t want to, I will tell the jury you have an absolute right to make no closing argument if you don’t want to. That’s up to you. You do what you want.
MR. RENFROE: I’m not going to give a closing argument. I have nothing to say.
THE COURT: You are going to get up and argue because you are required to.get up and argue if I ask you to, and I will ask you to.
MR. RENFROE: I will do whatever you ask me to do. I am telling you I have nothing to say.

(N.T. 5/13/85 at 326-28). (Emphasis added).

Counsel is presumed competent. In order to establish ineffectiveness, appellant must establish that: an act or omission was arguably ineffective; no objectively reasonable basis designed to effectuate appellant’s interests could exist for the act or omission; and, but for the act or omission challenged, there is a reasonable probability that the result would have been more favorable to appellant. Commonwealth v. Slocum, 384 Pa.Super. 428, 433, 559 A.2d 50, 52 (1989); see also Commonwealth v. Durst, 522 Pa. 2, 4-5, 559 A.2d 504, 505 (1989); Commonwealth v. Johnson, 516 Pa. 407, 412-13, 532 A.2d 796, 799 (1987).

When an arguable claim of ineffective assistance of counsel has been made, and there has been no evidentiary hearing in the court below to permit the defendant to develop evidence on the record to support the claim, and to provide the Commonwealth an opportunity to rebut the claim, this Court will remand for such a hearing. Commonwealth v. Petras, 368 Pa.Super. 372, 377, 534 A.2d 483, 487 (1987); see also Commonwealth v. Spotts, 341 Pa.Super. 31, 33, 491 A.2d 132, 134 (1985).

However, remand for an evidentiary hearing is not a discovery tool wherein counsel may conduct investigation and interrogation to search for support for vague or boilerplate allegations of ineffectiveness. Rather, appellant must set forth an offer to prove at an appropriate hearing sufficient facts upon which a reviewing court can conclude that trial counsel may have, in fact, been ineffective, before remand for an evidentiary hearing will be granted. Commonwealth v. Petras, supra, 534 A.2d at 487; see also Commonwealth v. Durst, supra, 559 A.2d at 505; Commonwealth v. Pettus, 492 Pa. 558, 563, 424 A.2d 1332, 1335 (1981). Moreover, if it is clear that: the allegation lacks arguable merit; an objectively reasonable basis designed to effectuate appellant’s interests existed for counsel’s actions or inactions; or appellant was not actually prejudiced by the alleged error by counsel, then an evidentiary hearing is unnecessary. Commonwealth v. Petras, supra, 534 A.2d at 487; see also Commonwealth v. Clemmons, 505 Pa. 356, 361, 479 A.2d 955, 957 (1984).

Whenever an evidentiary hearing on a claim of ineffectiveness is granted, the burdens of production and persuasion remain on the defendant. If the defendant fails to sustain the offer of proof at the evidentiary hearing, the ineffectiveness claim must fail. A failure to sustain an allegation of ineffectiveness may arise from a failure to present evidence at the evidentiary hearing, or from a rejection of the evidence presented in support of the proffer as not credible. See Commonwealth v. Hentosh, 520 Pa. 325, 334, 554 A.2d 20, 24-25 (1989) (defendant failed to present evidence to sustain the proffer); Commonwealth v. Johnson, 355 Pa.Super. 123, 131, 512 A.2d 1242, 1246 (1986) (defendant’s self-serving testimony in support of an arguable ineffectiveness claim was rejected as not credible).

Here, appellant has made no attempt whatsoever to identify any specific error or omission of prior counsel by which he was actually prejudiced. To the contrary, he boldly asserts that:

This is a rare case where trial counsel’s actions merit reversal, absent a finding of prejudice. Indeed, counsel’s lack of preparation masks the very data needed to show prejudice.
Reversal is compelled.

(Appellant’s Brief at 17). (Emphasis added).

Cases where reversal is required without a showing of prejudice are not rare, they are extinct. We feel no compulsion other than to follow the settled precedent of our Supreme Court which unequivocally requires actual prejudice.

We find no merit in the claim that prejudice should be presumed because the alleged ineffectiveness “cloaked” the proof of prejudice. Appellant is currently represented by competent and zealous counsel who has fought valiantly against the overwhelming weight of the compelling evidence of appellant’s guilt. Counsel’s brief reflects a thorough review of the record and a careful marshaling of evidence and argument in favor of appellant’s claim. Yet, nonetheless, appellate counsel has failed to uncover a single omitted material witness or any trial error demonstrating any actual prejudice. Despite new counsel’s best efforts, the sole evidence of ineffectiveness remains prior counsel’s own vague and conclusory self-accusation of ineffectiveness.

Self-accusations of ineffectiveness by prior counsel by their very nature could never be conclusive proof of ineffectiveness. This is true for pragmatic reasons.

First, some defense counsel might be disposed to make false self-accusations of ineffectiveness. Just as other counsel might pass over objections at trial to seed the record for appeal in the event of an adverse verdict or sentence out of misbegotten zeal for success rather than justice, so too might counsel raise false self-assertions of general ineffectiveness. Cf. Commonwealth v. Gumpert, 354 Pa.Super. 595, 599, 512 A.2d 699, 701-02 (1986).

Moreover, no such misguided zealousness need be presumed to render the self-accusation less than conclusive. Rather, a self-accusation of ineffectiveness remains by its very nature merely evidence of ineffectiveness, which must be considered with all other relevant evidence in determining whether each of the three prongs of the ineffectiveness test is met.

Counsel may believe that ineffective assistance has been rendered and yet be wrong. Counsel may do the right things for wrong reasons, or for no reasons at all; yet, if the right things are done, there is no actual prejudice, hence no ineffectiveness. Likewise, if a counsel’s alleged lack of zealousness did not result in any discernable actual prejudice to appellant, in that even plainly competent and zealous counsel fails to demonstrate evidence or arguments which could have been presented but which were not, then again there is no actual prejudice; hence, there is no ineffectiveness.

Prior counsel denounced himself as ineffective for failing to present defense witnesses to shake the compelling testimony of the three eye-witnesses in this case. His premise is false. Counsel is not a guarantor of the outcome of the trial, nor may counsel ethically or legally present false evidence to a court. When a defendant’s guilt is demonstrable, as here, the absence of a viable defense is the result of the defendant’s guilt and not counsel’s ineffectiveness. Nothing in this record suggests a contrary explanation for the determination of guilt.

Here, the Commonwealth argues strongly, with references to the record, that prior defense counsel merely feigned ineffectiveness to plant reversible error in an obviously losing cause. Such a claim is plausible, where as here the case hinges on eyewitness testimony which might be weakened by age or simply become unavailable by the time a retrial, if any, was scheduled.

However, as appellant failed to identify a single instance of ineffectiveness, we need not reach the problematic issue of what effect intentional ineffectiveness by unethical counsel would have on an appellant’s rights. It is enough to note here, that actual prejudice is a sine qua non of ineffectiveness claims.

Judgment of Sentence is Affirmed.

POPOVICH, J., concurs in the result.