author: KELLY, Judge. DEL SOLE, Judge,

text:
    667 A.2d 729
    INSULATION CORPORATION OF AMERICA, Appellee, v. Gary BROBSTON, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 31, 1995.
    Filed Nov. 3, 1995.

      Richard J. Orloski, Allentown, for appellant.
    Howard S. Stevens, Allentown, for appellee.
    Before DEL SOLE, KELLY and BROSKY, JJ.
   KELLY, Judge.

In this opinion, we are called on to determine whether the enforcement of a two-year, three hundred mile “non-competition” covenant contained in a employment contract is reasonable where the former employee was terminated for poor performance and the employer’s proprietary business information was already protected under injunctive enforcement of a “non-disclosure” covenant of the same agreement. Under such circumstances, we hold that the modified two-year time restriction imposed upon the former employee is both broader than necessary to protect the employer’s business interests and unduly oppressive on the former employee. Accordingly, we affirm in part and reverse in part, dissolving the preliminary injunction enforcing the “non-competition” covenant of the agreement.

This appeal involves a challenge to the trial court’s grant of a preliminary injunction in favor of appellee, Insulation Corporation of America (“ICA”), enforcing the terms of “non-disclosure” and “non-competition” restrictive covenants contained in a post-employment agreement between ICA and appellant, Richard Brobston (“Brobston”). The pertinent facts and procedural history of this case are as follows. ICA is a corporation engaged in the manufacture and sale of polystyrene packaging, roofing and insulation products. Brobston was hired by ICA in October, 1982. At the time, Brobston was forty-seven years old, had worked in the insulation industry since 1977, and began his employment without a written contract. His initial position was territory sales manager. In 1986, he was promoted to national account manager. In 1990, he was promoted to general manager.

In July, 1992, ICA decided to expand its product line from commodity or “anyone can do” products into more specialized products through the utilization of a computer-assisted design (CAD) system. Prior to purchasing the CAD system, ICA required that Brobston and certain other employees sign employment contracts which contained restrictive covenants or be terminated. On July 24, 1992, Brobston signed the proffered employment contract, which contained the following pertinent terms:

WHEREAS, Employer is considering changing from a commodity (anyone can do) type of product to a more specialized higher margin product that is far less dependent on the changes in construction activity; and
WHEREAS, Employer is about to purchase equipment and computer software to design and cut Employer’s products with the assistance of computer assisted design (CAD), and the resulting system requires extensive knowledge and training; and
WHEREAS, Employer finds it necessary and essential to give specialized education and training to certain employees; and
WHEREAS, Employee will be the recipient of information with respect to the operation of the CAD system, including requirements, design, setup, pricing and operation, and, also, the identity of customers of Employer, and Employer’s sources of leads for and methods of obtaining new business, and information and training with respect to various techniques, procedures, equipment, designs, drawings, plans, engineering or test data, customer and supplier lists, cost records and other information used or developed by Employer in carrying out Employer’s business; and * % % ❖ #
4. The Employee during the term of employment under this Agreement will have access to and become familiar with-various trade secrets, consisting of formulas, patterns, devises, secret inventions, processes, sales, earnings, finances and compilations of information, records and specifications and all other concerns of the Employer, which are owned by the Employer and which are regularly used in the operation of the business of the Employer. The Employee shall not disclose any of the aforesaid trade secrets, directly or indirectly, nor use them in any way, either during the term of this Agreement or at any time thereafter, except as required by the Employer in the course of the Employee’s employment for the Employer.
5. On the termination of Employee’s employment, for whatever reason whatsoever, the Employee shall not, directly or indirectly, within three hundred (300) miles of Allentown, Pennsylvania, enter into or engage generally in direct competition with the Employer in the business of manufacturing and/or selling expanded polystyrene insulation or packaging either as an individual on Employee’s own or as a partner or joint venturer, or as an employee or agent for any person, or as an officer, director, or shareholder or otherwise for a period of three (3) years after the date of termination of Employee’s employment hereunder.

(Employment Contract at 1-5).

The purported consideration for Brobston’s agreement to be bound was a $2,000.00 increase in his base salary and proprietary information concerning the CAD system, customers and pricing. In October, 1992, Brobston became vice president of special products, which included responsibility for sales of CAD system products and the commodity products. Over the course of the next year, Brobston failed to properly filé sales call and expense account reports. Further, Brobston failed to make a satisfactory number of overnight sales calls. Finally, of the fourteen accounts in his territory, only three showed growth; the others showed either flat or decreasing sales. On August 13, 1993, ICA terminated Brobston’s employment. On December 8, 1993, Brobston was hired by Foam Plastics of New England, a competitor of ICA, who was aware of the existence of ICA’s restrictive covenants. (N.T. 12/23/93 at 80). On December 17, 1993, ICA sought injunctive relief against Brobston, and filed a petition in equity to enforce the employment agreement by enjoining him from disclosing proprietary information about ICA, and by restraining him from competing with ICA. The trial court issued a temporary restraining order on that day, and a preliminary injunction hearing followed on December 23, 1993. Brobston was placed on leave without pay by his new employer. (Id. at 113-14).

Following the preliminary injunction hearing, the trial court granted ICA’s petition for a preliminary injunction and enjoined Brobston from disclosing ICA’s trade secrets and from competing with ICA within three hundred miles of Allentown, Pennsylvania for a period of two years from the date of Brobston’s termination. (Trial Court Order, 12/30/93 at 3-4). This timely interlocutory appeal followed.

I. WHETHER OR NOT AN EMPLOYER WHO HAS AN ELEVEN YEAR EMPLOYEE SIGN A CONTRACT WITH A RESTRICTIVE COVENANT, AND THEN FAILS TO GIVE THE EMPLOYEE THE BENEFITS OFFERED IN SAID CONTRACT CAN ENFORCE THE CONTRACT AFTER THE EMPLOYER TERMINATES THE EMPLOYEE’S EMPLOYMENT?
II. WHETHER OR NOT AN EMPLOYER WHO RESERVES RIGHT TO CANCEL AN EMPLOYMENT CONTRACT, AND THEN TERMINATES THE RELATIONSHIP CANNOT HAVE THE BENEFIT OF A COVENANT NOT TO COMPETE?
III. WHETHER OR NOT A BELATED RESTRICTIVE COVENANT MUST GIVE EMPLOYEE A “CORRESPONDING BENEFIT”?
IV. WHETHER OR NOT THREE YEARS, 300 MILES IS UNREASONABLE AS A MATTER OF LAW, AFTER EMPLOYMENT TERM OF .10 YEARS WITHOUT SUCH A RESTRICTION?
V. WHETHER OR NOT THE JUDICIAL DETERMINATION THAT THREE YEARS IS UNREASONABLE AS A MATTER OF LAW VOIDS THE RESTRICTIVE COVENANT IN ITS ENTIRETY AND THE TRIAL JUDGE IS NOT FREE TO RE-WRITE THE RESTRICTION FOR TWO YEARS?

Appellant’s Brief at 2.

We address appellant’s fourth issue first. Appellant contends that the “non-competition” covenant is wholly unenforceable as it bears no reasonable relationship to the protection of ICA. The trial court, on the other hand, concluded that enforcement of the restrictive covenants was necessary to protect ICA’s legitimate business interests. Based on the following reasoning, we cannot agree.

Initially, we note that we are guided by a rather limited standard of review of a trial court’s grant of a temporary preliminary injunction,

[w]e will reverse only where we can confidently conclude that the trial court was palpably erroneous, misapplied the law or committed a manifest abuse of discretion. Schaeffer v. Frey, 403 Pa.Super. 560, 589 A.2d 752 (1991). If there are any apparently reasonable grounds for the trial court’s decision, we must affirm it. City of Philadelphia v. District Council 33, American Federation of State, County and Municipal Employees, 525 Pa. 468, 581 A.2d 916, 919 (1990). We also emphasize, as we did in Schaeffer, supra, that a preliminary injunction is an extraordinary remedy to be utilized only where the plaintiff has established a clear right to relief. Schaeffer, 403 Pa.Super. at 565-566, 589 A.2d at 755.

Thermo-Guard, Inc. v. Cochran, 408 Pa.Super. 54, 63-64, 596 A.2d 188, 193 (1991).

In order for a “non-competition” covenant to be enforceable, it must relate to a contract for employment, be supported by adequate consideration and be reasonably limited in both time and territory. See Davis & Warde, Inc. v. Tripodi, 420 Pa.Super. 450, 454, 616 A.2d 1384, 1387 (1992), appeal denied, 536 Pa. 624, 637 A.2d 284 (1993); Bilec v. Auburn & Assoc., Inc. Pension Trust, 403 Pa.Super. 176, 183, 588 A.2d 538, 542 (1991), appeal denied, 528 Pa. 620, 597 A.2d 1150 (1991). More specifically, where a restrictive covenant has been entered into between an employer and its employee, our courts have permitted the enforcement of post-employment restraints only where they are ancillary to an employment relationship between the parties, the restrictions are reasonably necessary to protect the employer, and the restrictions are reasonably limited in duration and geographic extent. Sidco Paper Co. v. Aaron, 465 Pa. 586, 591, 351 A.2d 250, 252 (1976); Thermo Guard, Inc. v. Cochran, supra at 64, 596 A.2d at 193; Bilec v. Auburn & Assoc., Inc. Pension Trust, supra at 185, 588 A.2d at 541.

In order for a restrictive covenant entered into subsequent to the commencement of the employee’s service to be “ancillary,” it must be supported by new consideration, which can be in the form of a corresponding benefit or a beneficial change in employment status. See Davis & Warde, Inc. v. Tripodi, supra at 456, 616 A.2d at 1387; Bilec v. Auburn & Assoc., Inc. Pension Trust, supra at 184, 588 A.2d at 542. Brobston’s $2,000.00 annual raise and change of employment status from “at-will” to a written year-to-year term upon signing the agreement was adequate consideration for Brobston’s promise not to compete. See e.g. Modern Laundry and Dry Cleaning Co. v. Farrer, 370 Pa.Super. 288, 293, 536 A.2d 409, 411 (1988) (change in employment status from provisional to full-time and increased earnings on commission sufficient consideration to bind employee to restrictive covenant).

The salient issue for our determination is whether enforcement of the “non-competition” covenant under these circumstances is reasonable. Post-employment restrictive covenants are subject to a more stringent test of reasonableness than covenants ancillary to the sale of a business. Thermo-Guard, Inc. v. Cochran, supra at 64, 596 A.2d at 193. This heightened scrutiny stems from a historical reluctance on the part of our courts to enforce any contracts in restraint of free trade, particularly where they restrain an individual from earning a living at his trade. See Morgan’s Home Equipment Corp. v. Martucci, 390 Pa. 618, 632, 136 A.2d 838, 846 (1957); Kurt H. Decker, COVENANTS NOT TO COMPETE, Vol. 1, § 2.15 (2nd Ed. rev. 1993). This close scrutiny also stems from our recognition of the inherently unequal bargaining positions of employer and employee when entering into such agreements. Reading Aviation Service, Inc. v. Bertolet, 454 Pa. 488, 491-93, 311 A.2d 628, 630 (1973). The determination of whether a post-employment restrictive covenant is reasonable, and therefore enforceable, is a factual one which requires the court to consider all the facts and circumstances. Jacobson & Co. v. International Environment Corp., 427 Pa. 439, 452, 235 A.2d 612, 619 (1967); see Restatement of Contracts, § 18, Comment a; Corbin On Contracts, § 1394. A restrictive covenant found to be reasonable in one case may be unreasonable in others. Id.

Generally, our determination of reasonableness of time and territory has involved a weighing of competing interests — that of the employer’s need for protection — against the hardship of the restriction to be imposed upon the employee. Morgan’s Home Equipment Corp. v. Martucci, supra at 631, 136 A.2d at 846; Thermo-Guard, Inc. v. Cochran, supra at 64, 596 A.2d at 193. These competing interests were best explained by our Supreme Court as follows:

An employe may receive specialized training and skills, and learn the carefully guarded methods of doing business which are the trade secrets of a particular enterprise. To prevent an employe from utilizing such training and information in competition with his former employer, for the patronage of the public at large, restrictive covenants are entered into. They are enforced by the courts as reasonably necessary for the protection of the employer. See Arthur Murray Dance Studios, Inc. v. Witter, 62 Ohio L.Abs. 17, 105 N.E.2d 685, 694-99, 708-711 (1952); 3 Pomeroy, Equity Jurisprudence, § 934c (5th ed. 1941). A general covenant not to compete, however, imposes a greater hardship upon an employe than upon a seller of a business. An employe is prevented from practicing his trade or skill, or from utilizing his experience in the particular type of work with which he is familiar. He may encounter difficulty in transferring his particular experience and training to another line of work, and hence his ability to earn a livelihood is seriously impaired. Further, the employe will usually have few resources in reserve to fall back upon, and he may find it difficult to uproot himself and his family in order to move to a location beyond the area of potential competition with his former employer. Contrarywise, the mobility of capital permits the businessman to utilize his funds in other localities and in other industries.

Morgan’s Home Equipment Corp. v. Martucci, supra at 631-32, 136 A.2d at 846 (emphasis added). It was the greater hardship imposed upon the employee through the enforcement of such restrictive covenants that prompted our Supreme Court in Morgan’s Home Equipment Corp. v. Martucci, supra to impose a more stringent test of reasonableness. Id. at 632, 139 A.2d at 846. With these precepts in mind, we turn to the facts of this case.

Instantly, the record discloses that Brobston, a ten year employee, was privy to certain confidential corporate information such as overhead costs, profit margin, dealer discounts, customer pricing, marketing strategy and customer contract terms. Information of this nature was entitled to be protected by ICA under paragraph four, the “non-disclosure” covenant of the employment contract. See Morgan’s Home Equipment, Corp. v. Martucci, supra at 623-24, 136 A.2d at 842 (confidential customer data entitled to protection as trade secret under controlling common law) (citing Macbeth-Evans Glass Co. v. Schnelbach, 239 Pa. 76, 86 A. 688 (1913)); DenTal-Ez, Inc. v. Siemens Capital Corp., 389 Pa.Super. 219, 251, 566 A.2d 1214, 1230 (1989) (en banc) (inventory data, projections, details, unit costs, product profit margin data are protectible trade secrets). However, the record evidence also reveals that Brobston was terminated because he failed to do his job to increase sales. Brobston was terminated for failing to take overnight sales trips to develop business and for failing to report sales calls and expenses. (N.T. 12/23/93 at 186, 201-02). Thus, he was fired for failing to promote his employer’s interests. It is this factor that was not properly considered by the trial court that merits further scrutiny of the trial court’s decision to enforce the “non-competition” covenant.

Because our case law precedent regarding post-employment restrictive covenants requires the facts and circumstances of each case to be evaluated with heightened scrutiny, this mandate compels a more searching inquiry of all the circumstances surrounding enforcement of the covenant to determine its reásonableness. Where an employee is terminated by his employer on the grounds that he has failed to promote the employer’s legitimate business interests, it clearly suggests an implicit decision on the part of the employer that its business interests are best promoted without the employee in its service. The employer who fires an employee for failing to perform in a manner that promotes the employer’s business interests deems the employee worthless. Once such a determination is made by the employer, the need to protect itself from the former employee is diminished by the fact that the employee’s worth to the corporation is presumably insignificant. Under such circumstances, we conclude that it is unreasonable as a matter of law to permit the employer to retain unfettered control over that which it has effectively discarded as worthless to its legitimate business interests.

Moreover, our review of the preamble to the employment contract discloses that ICA’s ostensible purpose in requiring Brobston to enter into that agreement was to protect the new CAD technology it planned to acquire in order to create for itself a niche market and obtain a competitive advantage over other insulation suppliers by producing a “more specialized higher margin product.” (See Employment Agreement, supra). The record reveals, however, that Brobston was never given the “extensive knowledge and training” necessary to operate the CAD system. His testimony that he never received the training went unrebutted. (N.T. 12/30/93 at 98). Trial Court Opinion, 8/24/94, at 8 n. 3. Rather, shortly after he signed the contract, Brobston was given a new position in order to cover a sales territory for a retiring sales representative.

Thus, Brobston was left with a $2,000.00 annual increase, but no working knowledge of the CAD system and its processes. Brobston admittedly possessed confidential customer sales and profit margin information that related to the system. A close reading of the contract reveals that information of this nature was adequately addressed by the “nondisclosure” covenant of paragraph five. ICA sought and received injunctive enforcement of both that covenant and the “non-competition” covenant of paragraph five. Because we are of the opinion that ICA properly sought and was granted equitable relief vis-a-vis the confidential information, the trial court’s enforcement of the non-competition covenant would be unnecessary to protect its interests and be unfairly oppressive to Brobston’s ability to earn a living.

It bears noting that there is a significant factual distinction between the hardship imposed by the enforcement of a restrictive covenant on an employee who voluntarily leaves his employer and that imposed upon an employee who is terminated for failing to do his job. The salesman discharged for poor sales performance cannot reasonably be perceived to pose the same competitive threat to his employer’s business interests as the salesman whose performance is not questioned, but who voluntarily resigns to join another business in direct competition with the employer. Such circumstances are analagous to that of the novice referenced by our Supreme Court in Jacobson v. International Environment Corp., supra at 450, 235 A.2d at 618, where, quoting the chancellor in equity, the court stated “ ‘[o]nly when the novice has developed a certain expertise, which could possibly injure the employer if unleashed competitively, will the employer begin to think in terms of a restrictive covenant’... It is true that a restrictive covenant in the novice’s contract might well be held to be unreasonable as applied to the novice who remained a novice.” Id. We are of the opinion that the failed salesman in this case is in no better position to injure ICA if “unleashed competitively” than the aforementioned novice. The record amply demonstrates that he has not acquired any special expertise in CAD system-produced insulation products, nor has he demonstrated to his employer that his sales skills are a competitive force warranting protection through a “non-competition” covenant. These circumstances reflect economic reality, and the law should properly be influenced by it. Jacobson v. International Environment Corp., supra at 450, 235 A.2d at 618. Accordingly, because the circumstances under which the employment relationship is terminated are an important factor to consider in assessing both the employer’s protective interests and the employee’s ability to earn a living, ie. the reasonableness of enforcing the restrictive covenant, Brobston’s firing should have been included in the trial court’s determination of reasonableness.

In an Ohio case cited by our Supreme Court in Morgan’s Home Equipment, Corp. v. Martucci, supra at 631, 136 A.2d at 846, the court in Arthur Murray Dance Studios, Inc. v. Witter, 105 N.E.2d 685 (1952), reviewed the factors that have been considered by courts when determining the harshness and oppression of enforcement of post-employment restrictive covenants as follows:

Matters considered
“In treating undue harshness and oppression, the courts ... focus a great deal of attention on such inquiries as: What is the situation of employee and his family? What is employee’s capacity? Is employee handicapped or disabled in any way? What effect will the restraint have on employee’s life? Will it deprive him of opportunity of supporting himself and his family in reasonable comfort? Will it force him to give up the work for which he is best trained or be expatriated? What are business conditions? Is there prevailing unemployment? Was the employment terminable at employer’s will? Did employee work for employer a very brief time? What were the circumstances of termination of the employment? Did the termination constitute a breach of contract by employer? If not a breach, was it unreasonable? What is the character and extent of consideration to employee?”

Arthur Murray Dance Studios, Inc. v. Witter, supra at 700. Although not controlling authority, we mention this inquiry as illustrative of the level of scrutiny to which these covenants must be subjected, particularly under the circumstances as presented here. It is not enough merely to ask the ultimate question of whether the covenant will be oppressive. By its very nature, the test calls for a searching inquiry of all the circumstances surrounding the employment relationship and its termination. On this record, the trial court failed to include such an inquiry in its determination of the reasonableness of the “non-competition” covenant.

We are cognizant of the trial court’s equitable power to modify unreasonable terms of restrictive covenants, which was done by the trial court here. See Morgan’s Home Equipment Corp. v. Martucci, supra at 632-33, 136 A.2d at 848 (where covenant imposes restrictions broader than necessary to protect employer, court of equity may grant enforcement limited to those portions of restrictions reasonably necessary to protect employer); Bell Fuel Corp. v. Cattolico, supra at 257 n. 6, 544 A.2d at 459 n. 6. However, it is our determination that the trial court failed to properly consider the circumstances surrounding Brobston’s termination, a factor which affects both the legitimacy of the employer’s interests and the degree of hardship imposed upon the departing employee.

Further, we are of the opinion that injunctive enforcement of the “non-disclosure” clause provides the relief necessary to protect ICA’s legitimate business interests. In Morgan’s Home Equipment Corp. v. Martucci, supra at 632, 136 A.2d at 846-47, our Supreme Court concluded that although former employees had obtained confidential information, the employer was adequately protected by a decree enjoining disclosure of the information, thereby preventing the former employees from benefitting from their customer contacts and knowledge. In light of those facts, the court found that the “non-competition” covenants were not reasonably necessary for the employer’s protection and constituted an undue hardship upon the former employees. Id. Similarly, here, to impose an additional burden on Mr. Brobston under these circumstances would tip the balance of reasonableness away from the protection of ICA’s legitimate business interests and into the realm of undue oppression upon his ability to earn a living. Therefore, under these circumstances, we hold that the trial court’s enforcement of the instant “non-competition” covenant constitutes palpable error. Thermo-Guard, Inc. v. Cochran, supra.

Accordingly, we affirm the trial court’s grant of a preliminary injunction as to the “non-disclosure” clause of the employment agreement and reverse the trial court’s injunctive enforcement of the “non-competitive” clause. The injunction restraining and enjoining Brobston from competing with ICA for radius of three hundred miles and for two years is hereby dissolved.

Order affirmed in part, reversed in part. Jurisdiction relinquished.

DEL SOLE, J., files a dissenting opinion.

DEL SOLE, Judge,

dissenting.

The majority reaches the conclusion that the employment agreement is not enforceable because Appellant was terminated and, therefore, his value to Appellee was worthless. Accordingly, the majority holds that an employer needs no protection against a worthless employee. However, that is not the proper focus. It is the discharged employee’s knowledge of the business which is being restricted.

As the majority points out, Appellant, while he may not have been able to actually operate the CAD system, “admittedly possessed confidential customer sales and profit margin information that related to the system”. Possessing that kind of knowledge can certainly create an unfair advantage in the marketplace.

Appellant worked for Appellee for ten years and during the greater part of his career, Appellant was a successful salesperson and ultimately achieved the position of Vice President of special products. Even though Appellant clearly had a significant amount of experience with Appellee’s products and pricing, the majority writes:

“[o]nce such a determination [to terminate an employee] is made by the employer, the need to protect itself from the former employee is diminished by the fact that the employee’s worth to the corporation is presumably insignificant. It bears noting that there is a significant factual distinction between the hardship imposed by the enforcement of a restrictive covenant on an employee who voluntarily leaves his employer and that imposed upon an employee who is terminated for failing to do his job. The salesman discharged for poor sales performance cannot reasonably be perceived to pose the same competitive threat to his employer’s business interests as the salesman whose performance is not questioned, but who voluntarily resigns to join another business in direct competition with the employer.”

This line of reasoning does not take into account the fact that an employee necessarily acquires a certain amount of knowledge about an employer’s business over a period of time. Furthermore, the majority’s statement that “the record amply demonstrates that he has not acquired any special expertise in CAD system-produced insulation products, nor has he demonstrated to his employer that his sales skills are a competitive force warranting protection through a “non-competition covenant” is erroneous. It is overreaching to state that because Appellee terminated Appellant based upon poor performance, Appellee did not need any protection. Appellant’s poor performance was of a recent nature and it is nonsensical to conclude that Appellee could assume that based upon his recent performance, Appellant would be equally unproductive elsewhere. This conclusion ignores the many factors that can play a role in an employee’s productivity.

Furthermore, In Footnote # 8 the majority seeks to interject into the employer-employee restrictive covenant law of this Commonwealth something that is not now nor ever has been a criteria for enforcement of a restrictive covenant— namely the reason for the termination of an employee.

The majority suggests that where an employee has been terminated by the employer, under no circumstances can an employer seek to enforce a post-employment restrictive covenant. With that rationale in mind, what is to prevent a salesperson, who has secretly been recruited by a competitor, from purposely trying to be terminated rather than resigning and then working for the competitor free of the constraints of the restrictive covenant.

In reaching its conclusion that the restrictive covenant presented in the instant case is not reasonable and, therefore, unenforceable, the majority relies heavily on the principle that “[p]ost-employment restrictive covenants are subject to a more stringent test of reasonableness than covenants ancillary to the sale of a business”. I am cognizant of the fact that this heightened scrutiny is the result of the fact that a covenant not to compete may place undue hardship upon an individual who would have to make significant changes in his life in order to avoid violating the covenant. However, while courts have been traditionally reluctant to enforce these covenants, the fact remains that they must be decided on a case by case basis and a balancing test must be employed.

The test to be applied in determining whether a post-employment restrictive covenant is enforceable is well-settled. The trial court looks to the adequacy of the consideration, the necessity to protect the employer’s interest and the reasonableness of the time and scope of the restriction. In the instant case, Appellant was adequately compensated for entering into the agreement, the need to protect Appellee’s interests was clearly illustrated and the time and scope of the covenant was made reasonable by the trial court.

If there is no risk of harm to the employer, the trial court can refuse to enter an injunction. The issue before us is whether the record supports the trial court’s conclusion and I find that it does.

Accordingly, I would affirm the trial court’s Order.

      . An "anyone can do” product was described by Brobston as a type of product that is a genuine product, available as a commodity item in lumberyards. (N.T. 12/23/93 at 90).

      . The promotion to vice president of special products was not part of the consideration for Brobston’s assent to be bound by the employment agreement.

      . The trial court modified the time restriction of the “non-competition” clause from three years to two years.

      . The instant appeal is properly before this Court as an interlocutory appeal of right per Pa.R.A.P. 311(a)(4).

      . There is testimony in the record from ICA’s Chief Executive Officer, Mr. Thomas F. Higgins, that he and Mr. William J. Dean, ICA’s President, agreed that they would cite "economic reasons" as the basis for Mr. Brobston’s firing. (N.T. 12/23/93 at 207). However, as cited above, the record is clear that Brobston was terminated for failing to increase sales in his territory to ICA’s satisfaction.

      . This conclusion would remain the same even if it were determined that Brobston was legitimately terminated for economic reasons. The same reasoning applies under that scenario, i.e., where an employer determines that its “bottom-line" is best protected without the employee on the payroll. However, it must be kept in mind that reasonableness is determined on a case-by-case basis. Jacobson v. International Environment Corp., supra.

      . We note that the "non-disclosure" covenant is not limited by the reasonableness criteria applicable to "non-competition” covenants. See Bell Fuel Corp. v. Cattolico, 375 Pa.Super. 238, 254, 544 A.2d 450, 458 (1988), appeal denied, 520 Pa. 612, 554 A.2d 505 (1989).

      . Significantly, none of the published decisions of this Court or our Supreme Court have addressed such a situation as is presented here. Rather, the balance of the published decisions in the Commonwealth under the standard set forth in Morgan's Home Equipment Corp. v. Martucci, supra, involved circumstances where the employee voluntarily terminated the employment relationship. Bryant v. Sling Testing and Repair, Inc., 471 Pa. 1, 369 A.2d 1164 (1977); Boldt Machinery and Tools v. Wallace, 469 Pa. 504, 366 A.2d 902 (1976) (per curiam); Sidco v. Aaron, supra; Girard Investment Co. v. Bello, 456 Pa. 220, 318 A.2d 718 (1974); Trilog Associates, Inc. v. Famularo, 455 Pa. 243, 314 A.2d 287 (1974); Bettinger v. Carl Berke & Associates, 455 Pa. 100, 314 A.2d 296 (1974); Reading Aviation Service, Inc. v. Bertolet, supra; Jacobson and Co. v. International Environment Corp., supra; Capital Bakers v. Townsend, 426 Pa. 188, 231 A.2d 292 (1967); Beneficial Finance Co. of Lebanon v. Becker, 422 Pa. 531, 222 A.2d 873 (1966); Albee Homes, Inc. v. Caddie Homes, Inc., 417 Pa. 177, 207 A.2d 768 (1965); Barb-Lee Mobile Frame Co. v. Hoot, 416 Pa. 222, 206 A.2d 59 (1965); Spring Steels Inc. v. Molloy, 400 Pa. 354, 162 A.2d 370 (1960); Pa. Funds Corp. v. Vogel, 399 Pa. 1, 159 A.2d 472 (1960); Robinson Electronic Supervisory Co. Inc. v. Johnson, 397 Pa. 268, 154 A.2d 494 (1959); Morgan’s Home Equipment v. Martucci, supra; Davis & Warde v. Tripodi, supra; Ruffing v. 84 Lumber Inc., 410 Pa.Super. 459, 600 A.2d 545 (1991), appeal denied, 530 Pa. 666, 610 A.2d 46 (1992); Bilec v. Auburn & Assoc. Inc. Pension Trust, supra; Harsco Corp. v. Klein, 395 Pa.Super. 212, 576 A.2d 1118 (1990); Boyce v. Smith-Edwards-Dunlap Co., 398 Pa.Super. 345, 580 A.2d 1382 (1990), appeal denied, 527 Pa. 639, 593 A.2d 413 (1991); Rollins Protective Services Inc. v. Shaffer, 383 Pa.Super. 598, 557 A.2d 413 (1989); Bell Fuel Corp. v. Cattolico, supra; Modern Laundry and Dry Cleaning Co. v. Farrer, supra; Quaker City Engine Rebuilders, Inc. v. Toscano, 369 Pa.Super. 573, 535 A.2d 1083 (1987); Blair Design and Construction Co. Inc. v. Kalimon, 366 Pa.Super. 194, 530 A.2d 1357 (1987); Martin Industrial Supply Corp. v. Riffert, 366 Pa.Super. 89, 530 A.2d 906 (1987); Records Center, Inc. v. Comprehensive Management Inc., 363 Pa.Super. 79, 525 A.2d 433 (1987); Wainwright's Travel Service Inc. v. Schmolk, 347 Pa.Super. 199, 500 A.2d 476 (1985); Robert Clifton Associates, Inc. v. O'Connor, 338 Pa.Super. 246, 487 A.2d 947 (1985); Gordon Wahls Co. v. Linde, 306 Pa.Super. 64, 452 A.2d 4 (1982); Peripheral Dynamics, Inc. v. Holdsworth, 254 Pa.Super. 310, 385 A.2d 1354 (1978) (per curiam).

      Following an exhaustive search of our case law, we discovered only a few cases that are even remotely similar to the circumstances presented here. For example, in Kistler v. O’Brien, 464 Pa. 475, 347 A.2d 311 (1975), the employee was discharged by his employer and raised the grounds of wrongful discharge to test the reasonableness of the restrictive covenant. However, the court invalidated the restrictive covenant for failure of adequate consideration. Further, the basis for the termination was not discussed. In Maintenance Specialties, Inc. v. Gottus, 455 Pa. 327, 314 A.2d 279 (1974), the employee was not terminated, but the employer filed a complaint alleging breach of the restrictive covenant. In Trilog Associates, Inc. v. Famularo, supra, one employee was terminated while two others voluntarily quit. The reason for the one employee’s termination was not discussed. On appeal, the restrictive covenants were held void due to unlimited time and territory restraints. In Hayes v. Altman, 424 Pa. 23, 225 A.2d 670 (1967), the employee was terminated for failing to sign the restrictive covenant. However, there was no dispute as to his work having been completely satisfactory.
      To the extent that previous published decisions do not refer to the reason for the termination of the employment relationship, we now hold that this is a factor that must be considered in order to determine whether enforcement is truly reasonable. For example, the corporate officers of ICA admitted that they sought to conceal their reasons for terminating Mr. Brobston. Even if, in their minds, it would help him seek employment, it reinforces the point that honesty must be the best policy. As our Supreme Court, in a similar case stated: " ‘We are approaching nearer and nearer to the conclusion [in restraint of trade cases], although we have not yet reached it, that common honesty is the true public policy.’ ” Plunkett Chemical Co. v. Reeve, 373 Pa. 513, 517, 95 A.2d 925, 927 (1953) (quoting Monongahela River Consolidated Coal and Coke Co. v. Jutte, 210 Pa. 288, 302, 59 A. 1088, 1093 (1904)).

      . The trial court enjoined and restrained Brobston from disclosing either directly or indirectly, ICA’s trade secrets consisting of formulae, patterns, devices, secret inventions, processes, sales, earnings, finances, compilation of information, records and specifications owned or used by ICA or acquired by Brobston during the tenure of his employment there. This injunction applies regardless of Brobston’s future employment, whether it be with a competitor of ICA, or outside the insulation industry entirely. Whether or not Brobston has violated or will violate the trial court's injunction is not presently before this court, and is a matter left for another day.

      . In light of our disposition of the instant appeal on appellant's fourth issue, we need not address the remaining issues raised on appeal.


source: Caselaw Access Project

author: ROWLEY, President Judge:

license: Public Domain

text:
    667 A.2d 739
    COMMONWEALTH of Pennsylvania v. Ossie Harrington YOUNGE, Appellant.
    Superior Court of Pennsylvania.
    Argued March 22, 1995.
    Filed Nov. 6, 1995.

      Jack W. Cline, Mercer, for appellant.
    James P. Epstein, District Attorney, Hermitage, for Commonwealth, appellee, (submitted)
    Before ROWLEY, President Judge, and KELLY and HOFFMAN, JJ.
   ROWLEY, President Judge:

We are asked in this appeal to determine whether it is improper for a trial court to inquire into the source and intended use of confiscated currency when a claimant petitions for its return under Pa.R.Crim.P. 324. Appellant Ossie Harrington Younge claims that in undertaking such inquiries the trial court placed an “improper and undue burden” upon him. Consequently, the trial court abused its discretion in denying his petition for return of $22,080.00, seized by police when appellant was stopped for speeding.

After careful review of the record and applicable case law, we cannot agree that the trial court placed an undue and improper burden on appellant by conducting inquiries into the source and intended purpose of the confiscated funds, in order to make a determination with respect to ownership. However, the Commonwealth’s failure to produce any evidence to rebut the evidence which appellant provided, in response to the trial court’s inquiries, renders the trial court’s subsequent determination that appellant was not entitled to a return of his property an abuse of discretion. Accordingly, we reverse.

An individual “aggrieved by a search and seizure” resorts to Rule 324 to petition the court for a return of seized property. A trial court hearing the motion is to return the property if satisfied that: 1) the petitioner is entitled to lawful possession, and 2) the property is not contraband. Commonwealth v. Pomerantz, 393 Pa.Super. 186, 573 A.2d 1149 (1989). A petition for return of property is voluntary, and a trial court hearing such motion “shall receive evidence on any issue of fact necessary to the decision thereon.” Rule 324(b). In making an initial determination regarding ownership, it is the province of the trial court to judge the credibility of the witnesses and weigh the testimony offered. Commonwealth v. One 1985 Cadillac Seville, 371 Pa.Super. 390, 538 A.2d 71 (1988). It is not the duty of an appellate court to act as fact-finder, but to determine whether there is sufficient evidence in the record to support the facts as found by the trial court. Id. at 398, 538 A.2d at 75.

We begin by noting that Rule 324 has spawned a wealth of litigation, most of which is addressed to the question of whether the Commonwealth met its burden of proving by a preponderance of the evidence that seized property is forfeitable as contraband under section (b). Our research has disclosed no case in which the question of whether a petitioner met the initial burden of establishing a right to lawful possession or ownership of seized currency under Rule 324 was the only issue to be decided. In the few cases in which lawful possession or ownership of seized cash was at issue, invariably along with the contraband status of the money, the petitioner’s right to lawful possession or ownership was either presumed, or at best, cursorily discussed.

However, this Court has determined that a failure to even minimally allege entitlement to lawful possession is fatal to a petition for return of property under Rule 324. Pomerantz, supra. In that case the only claim to possession, an averment in the petition that cash seized from his residence constituted “the exclusive property of the [petitioner] obtained by legitimate business means,” was not offered into evidence, and the petitioner did not testify at the hearing. Pomerantz, 393 Pa.Super. at 188-89, 573 A.2d at 1150; see also Commonwealth v. Doranzo, 365 Pa.Super. 129, 529 A.2d 6 (1987) (trial court’s factual finding of lawful possession and grant of a petition to return seized property found improper where no testimony was offered by claimant to establish lawful possession, and the Commonwealth circumstantially proved property constituted derivative contraband), appeal denied, 517 Pa. 614, 538 A.2d 497 (1987).

On the other hand, in Commonwealth v. Myers, 298 Pa.Super. 272, 444 A.2d 1170 (1982), this Court rejected a determination that cash seized from a petitioner’s purse constituted derivative contraband, made solely on the basis that the trial court found that “[d]efendant’s version of the source of the money appeared] to be unreasonable.” Id. at 280, 444 A.2d at 1175. The panel noted that the “taxpayer was not actually examined as to the ‘source’ of the money, [and] simply made the statement that she had no bank or safe place to keep the money.” Id. at 280 n. 4, 444 A.2d at 1175 n. 4.

In light of the above decisions we cannot agree with appellant’s contention that once a petitioner makes a minimal assertion to lawful possession it is improper for the trial court to make additional inquiries, of either a petitioner or the respondent, so long as the inquiries are relevant to the issue of the right to lawful possession or ownership. In the absence of sufficient evidence, as this Court pointed out in Myers, there is substantial risk that a trial court is free to create “its own inference” with respect to a claimant’s right to lawful possession or ownership. Id. at 281, 444 A.2d at 1175. This would be as improper as was the trial court’s determination in Myers that the Commonwealth may establish seized currency to be forfeitable simply because it was in the possession of one who was also in possession of marijuana, “plac[ing] no burden of proof whatsoever on the Commonwealth.” Id.

We conclude that inquiries regarding the source and intended purpose of seized property do not place an undue and improper burden upon a petitioner asserting a right to reclaim property seized from his or her possession. To the contrary, in the event that a trial court determines that such inquiries are necessary, they serve the essential purpose of decreasing the risk that any decision subsequently made by a trial court will be rendered arbitrary and capricious by a lack of competent evidence.

We turn next to the question of whether the evidence appellant provided in response to the trial court’s inquiries was insufficient, as a matter of law, to support the trial court’s denial of appellant’s petition for a return of his property.

The record discloses the following undisputed facts. Appellant is a native of Guyana, South America. He was stopped at 3:00 A.M. on September 21, 1993, by the Pennsylvania State Police for driving in excess of the posted speed limit in Mercer County. A registration and license check revealed that appellant held a current license, issued in North Carolina, and suspended in New York for failure to appear and pay a fine. He was driving a vehicle leased to Paul Steven Grier in Louisville, Kentucky, although the lease agreement appellant produced stated “no additional driver[s]” were permitted.

A consent search of the rented vehicle turned up a garment bag containing, along with clothing and personal items, $22,-080.00 in cash. Appellant was arrested and cited for two summary offenses, speeding and driving with a suspended license, and one misdemeanor offense, unauthorized use of an automobile. The Commonwealth confiscated the garment bag and the $22,080.00 in cash. The affidavit of probable cause subsequently executed by the arresting officer contained the following contradictory information:

[ ]The registration revealed a rental lease agreement signed to Paul Stephen Grier[,] 1843 Mary Catherine Drive[,] Louisville[,] 40216[.] The contract stipulates “No additional driver[.]” The defendant advised this affiant that he obtained permission to drive the vehicle from a subject named “Paul [.]” No such “Paul ” is listed on the agreement. [ ]

Affidavit of Probable Cause, 9/21/93 (emphasis supplied).

Appellant’s claim to having received permission to operate the rented vehicle from the lessee, Paul Stephen Grier, was confirmed the next day by the Louisville Police Department. The teletype sent from the Louisville police, and read into the record at appellant’s hearing on May 24, 1994, included the following:

[Paul] Grier knows Younge, Ossie; [Grier] Let [Younge] have vehicle last night and said subject was to call him this morning to let him know where he could pick up the vehicle. Your TTY does not say what information you need and what action you need our department to take. Please be more specific in your reply. We will be glad to assist your agency in this matter when we understand what you need.

There is no evidence in the record that the Commonwealth took any further action, or responded in any way to the offer of assistance received from the Louisville Police.

Pursuant to Rule 324(a), appellant petitioned for return of the cash on April 15, 1994. The trial court heard extensive testimony on the issue of appellant’s right to reclaim the funds on May 24, 1994, and again on June 6, 1994. Appellant’s motion was denied on June 6, 1994, after the trial court determined that appellant presented “no credible evidence” that the $22,080.00 in currency belonged to him. The Commonwealth returned the garment bag and its contents to appellant the same day, but kept the cash. No petition to forfeit the money has been filed by the Commonwealth, and the trial court made no determination, pursuant to Rule 324(b), that the cash was forfeitable as contraband. Based on the evidence received at the two hearings, the trial court made findings of fact and concluded that appellant’s petition was properly denied because the “defendant’s final explanation as to the sources and purposes of the money was incredible.”

A review of the testimony provided by appellant and his fiancee, Elizabeth Cawley, with respect to the source and intended purpose of the money, leads us to conclude that it constitutes far more than the “minimum” allegation of entitlement to lawful possession found wanting in Doranzo and Pomerantz. With respect to the source of the $22,080.00, appellant testified that the money belonged to “my family and me.” Appellant stated that he contributed $1,000.00 towards the total, his aunt contributed a portion, and his fiancee contributed a portion. At appellant’s second hearing, his fiancee testified that she contributed $6,000.00, and appellant’s aunt, Myrtle Pauline Williams, contributed $15,000.00. A native of Jamaica, West Indies, Ms. Cawley explained to the trial court, in great detail, that the cash constituted a form of emergency money fund customarily collected in the Caribbean because “everybody don’t believe in banks.” Members of a group contribute money, called a “hand,” into a “SU-SU,” and the total placed into the fund then circulates among the participants. Each member is entitled to withdraw the money they contributed, or “box hand,” whenever needed:

MR. EPSTEIN [for the Commonwealth]: Is it your testimony then that you withdrew $6,000 from one of your [business] accounts?
MS. CAWLEY: No, I received that from a SU-SU which is a partner and that’s a type of savings where we in the card being, ah, each person, as for example, it may be a group of [ten] people. Each person will put $10.00/$50.00 in and it will all depend on the hand they want. It can either be one hand or two hands. If they have one hand, they will contribute $50.00 per week. If they have two hands it would be $100.00 per week. And it all depends on the amount of people, it all depends on the amount of people[,] you get a sum whatever week it may be for you.
MR. EPSTEIN: What is done with it, say you have [ten] or how many people contributing to this thing, what’s done with that money?
MS. CAWLEY: Well, it’s theirs. [ ]

With respect to the intended purpose of the cash, appellant testified that “we were trying to invest in some property” in Louisville, Kentucky. Appellant’s fiancee produced a pay stub verifying that she earned $39,499.92 the previous year, and corroborated appellant’s statement that “we was [sic] going into business, as far as opening a restaurant was concerned.” Both appellant and his fiancee offered an explanation why appellant came to be carrying the cash confiscated from him: the money was left with appellant because Ms. Cawley and appellant’s aunt had to leave Kentucky before appellant in order to return to their jobs in New York.

The Commonwealth, on the other hand, offered no evidence relevant to the issue of who might have a superior claim to the seized cash, if not appellant. No attempt was made to disprove the testimony offered by appellant and his fiancee that the cash was collected according to a cultural practice which they testified was prevalent in their native countries. In fact, the only evidence offered by the Commonwealth to rebut appellant’s claim to lawful possession was the testimony of the officer who stopped appellant for speeding. The trial court’s inference that the explanations offered by appellant and his fiancee were “incredible” rely heavily upon discrepancies between the answers appellant provided at the time he was stopped, as alleged by the arresting officer, and those appellant provided under oath at the hearings. Though we do not dispute the factual findings made by the trial court with respect to whether such discrepancies in appellant’s answers to the arresting officer exist, they do not rise to the level of competent evidence sufficient to rebut the testimony appellant offered to support his claim to lawful possession, nor do they support the inference drawn by the trial court that appellant failed to meet his burden of persuasion that the property was lawfully his. We think the discrepancies alluded to by the trial court are as likely the result of the obvious difficulty appellant and his fiancee demonstrated in struggling to communicate in English, as the result of an intent to prevaricate.

A review of the record establishes that the findings of fact relied upon by the trial court in making its determination that appellant was not entitled to a return of his property are not relevant to the only issue before the court: whether it was more likely than not that appellant had a right to lawful possession of the seized cash. Rather, the findings of fact upon which the trial court relied in concluding that appellant failed to meet his burden of establishing the right to reclaim the cash demonstrate a selective bias, misstate the testimony of record, and improperly rely upon the vehicular infractions for which appellant was arrested.

For example, the trial court found as a fact that there was nothing in the garment bag to identify it and the contents as “being the Defendant’s,” while disregarding the fact that the Commonwealth, with no discussion, returned to appellant’s possession everything confiscated from him, except the cash. The trial court found as a fact that “defendant did not establish any ability to acquire monies of that sum ... earning] only approximately fifteen hundred dollars the previous year,” while rejecting the fact that appellant never testified that the entire $22,080.00 had been contributed by him. The trial court essentially determined that because appellant’s fiancee, a “computer graphic artist with a gross income of $39,000 dollars [and] a checking and savings account,” failed to consider traveling with a cashier’s check, her entire testimony was incredible. Finally, the trial court clearly misstates appellant’s testimony of record, by finding as a matter of fact that “the three owners of the money each put it in a box and then went to Louisville.”

When the trial court relied upon the vehicular offenses for which appellant was arrested to support its denial of appellant’s petition for a return of the confiscated cash, it misapplied the law. When making a determination with respect to a petition for return of seized property under section (a) of Rule 324, it is as improper to rely upon the criminal infractions which gave rise to the seizure, if not relevant to the issue of the right to lawful possession, as it is to refer to the “person” petitioning the court for return of his or her property as a “defendant.” See note 4, infra.

Evidence of criminal activity, if not offered to rebut a claim to lawful ownership, is only relevant when the Commonwealth is attempting to prove the property seized is subject to forfeiture as contraband under section (b), which in this case, the Commonwealth concedes it cannot do. Neither the trial court nor the Commonwealth have ever taken the position that the cash seized from appellant’s garment bag is contraband of any kind, nor would such a claim succeed. In the absence of statutory authority subjecting appellant to criminal penalty if the cash were returned to him, the Commonwealth may not forfeit the money by claiming that it is per se contraband. One Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965). In the absence of any evidence that the cash is the fruit of, or was used to further, criminal activity, the Commonwealth cannot prevail in a petition to forfeit the cash as derivative contraband. Commonwealth v. Anthony, 418 Pa.Super. 82, 613 A.2d 581 (1992).

Thus, we are left with the conclusion that, although against no law of which we are aware, the actions of appellant and members of his family in carrying their savings in cash, in lieu of a “cashier’s check,” while failing to make “advance contact with realtors” in their search for investment property, simply did not comport with the trial court’s notion of proper behavior. Put another way, after hearing extensive testimony with respect to the source and intended purpose of the cash seized from appellant, and in the absence of any evidence from the Commonwealth relevant to rebut appellant’s claim, the trial court simply chose not to believe him. This subjective form of disbelief cannot be used as the basis for a decision to dispossess a person of his property. To affirm the trial court’s reasoning in this case would permit each trial court to impose its own opinion with respect to the amount, the form, and the manner in which an individual may transport his or her property.

Our case law does not require a petitioner to meet a stiffer burden of persuasion under section (a) of Rule 324, when attempting to reclaim property seized from his or her possession, than the Commonwealth is required to meet in attempting to defeat a petitioner’s claim under section (b). Therefore, we hold that when a petitioner offers evidence of entitlement to lawful possession or ownership, as is required to meet his or her burden of persuasion by a preponderance of the evidence, the burden of production shifts to the Commonwealth to produce evidence to rebut the petitioner’s claim. The Commonwealth is thus required to come forward with any material facts available to it, relevant to the right to lawful ■possession, or risk defeat on the issue. See Commonwealth v. Giffin, 407 Pa.Super. 15, 22, 595 A.2d 101, 104 (1991) (forfeiture statute’s rebuttable presumption that cash found near drugs constitutes proceeds from drug sale forces defendant to come forward, or “suffer inevitable defeat on the issue”); see generally Graham C. Lilly, An Introduction to the Law of Evidence § 15 (1978). If the Commonwealth has insufficient evidence at hand to rebut the petitioner’s claim of entitlement to lawful possession or ownership under section (a) of Rule 324, it may always attempt to defeat a petitioner’s claim by proving that the seized property is more likely than not subject to forfeiture as contraband under section (b). However, the Commonwealth may not, as it attempted to do here, rely upon evidence, insufficient if advanced under section (b), in order to succeed in defeating a petitioner’s claim to lawful possession under section (a).

Although the burden of persuasion never shifts from the petitioner to establish entitlement to lawful possession or ownership of seized property, requiring the Commonwealth to meet its own burden of production with respect to lawful possession is especially necessary in the event that the subject property is currency. As Commonwealth Court recently observed, the maxim “possession is nine-tenths of the law” is not a legally accurate rule, but possession is “an element to consider in determining ownership.” Commonwealth v. One 1988 Suzuki Samurai, 139 Pa.Commonwealth Ct. 68, 73, 589 A.2d 770, 773 (1991). The fungible nature of currency necessarily raises an inference that the possessor is the lawful owner, absent proof of theft; we can conceive of no means by which anyone may better establish a right to lawful possession of cash in their possession but by possession. The fact that the cash was contained in a garment bag which the Commonwealth returned to appellant’s possession, without dispute, raises, at the least, a strong inference that the cash was as much his property as were the other contents of the garment bag.

Notwithstanding the absence of statutory authority for the seizure that occurred in this case, the Commonwealth’s concession that the currency does not constitute contraband, and an acknowledgment that it does not intend to “seek forfeiture,” the Commonwealth disingenuously maintains that its primary concern is “to ensure the return of possession or control of the money to its rightful owner.” Appellee’s Brief at 3. The obvious flaw in this reasoning is that if someone other than appellant is entitled to lawful possession, how is appellant’s possession of the cash to be explained? Two possibilities occur to us: either appellant is a bailee, or he is, as inferred by the Commonwealth and the trial court, an “un lawful” possessor, having come to possess the cash by some undetermined illegal means. However, if appellant were a bailee, he would have to answer to his bailor, not the Commonwealth, for care of the currency. If appellant is in fact an unlawful possessor, then the cash constitutes derivative contraband, and would be subject to forfeiture as such. Rule 324(b). It would appear that the Commonwealth, by avoiding a forfeiture proceeding in which it concedes it could not prevail, hopes to accomplish indirectly what it could not accomplish directly: it seeks to avoid returning the cash without producing any evidence that the money does not belong to appellant, and without producing any evidence that the cash is derivative contraband and subject to forfeiture. Pomerantz, supra; see also Commonwealth v. Cox, 161 Pa.Commonwealth Ct. 589, 637 A.2d 757 (1994) (in order for a trial court’s order of forfeiture under Rule 324(b) to be proper, Commonwealth was required to attempt to obtain forfeiture of car held for evidence, then released).

It is well-settled that statutes authorizing forfeiture are not favored under the law of this Commonwealth and are strictly construed. Cox, supra, citing to Commonwealth v. 502-504 Gordon Street, 147 Pa.Commonwealth Ct. 330, 607 A.2d 839 (1992), aff'd per curiam, 535 Pa. 515, 636 A.2d 626 (1994). For this reason, such statutes invariably provide extensive procedural safeguards. Rule 324, in contrast, provides only that a trial court “shall receive evidence on any issue of fact necessary” to make a determination with respect to a claimant’s right to lawful possession. We conclude that when the state effects a seizure of property, absent statutory authority or any evidence of criminal wrongdoing related to the property, a petitioner advancing a claim to lawful possession or ownership under Rule 324 is entitled, at a minimum, to have his or her evidence answered. In the absence of any evidence produced to rebut appellant’s claim that the currency seized from him was lawfully possessed by him at the time it was taken, permitting the Commonwealth to prevent its return to appellant’s possession amounts to little more than state-sanctioned theft.

The Commonwealth may not have it both ways. Where, as here, there is an absence of any criminal nexus between the property seized and the petitioner attempting to reclaim possession, the Commonwealth has a burden to produce evidence relevant to rebut the claim to lawful possession or ownership under section (a), file for forfeiture under section (b), or return the property forthwith to the claimant.

The facts in this case simply do not support the inferences drawn by the trial court. Accordingly, the determination that appellant was not entitled to a return of his property constitutes an abuse of discretion.

The order denying appellant’s motion for return of his property is reversed. We remand to the trial court so that it may enter an order granting appellant’s petition for return of the currency confiscated from him.

Order reversed.

      . The Commonwealth contends that the "precise issue presented [] is whether defendant’s motion for return of property was properly denied for lack of credible evidence establishing defendant's right to possess the property.” Appellee’s Brief at 3. The trial court agrees, stating that ”[i]t is to the issue of whether defendant has met his burden of proof that this Opinion is written.”

      . Rule 324. Motion for Return of Property.
      (a) A person aggrieved by a search and seizure, whether or not executed pursuant to a warrant, may move for the return of the property on the ground that he is entitled to lawful possession thereof. Such motion shall be filed in the Court of Common Pleas for the judicial district in which the property was seized.
      (b) The judge hearing such motion shall receive evidence on any issue of fact necessary to the decision thereon. If the motion is granted, the property shall be restored unless the court determines that such property is contraband, in which case the court may order the property to be forfeited.
      (c) A motion to suppress evidence under Rule 323 may be joined with a motion under this Rule.
      Pa.R.Crim.P. 324.

      . A panel of this Court addressed the right to lawful possession of a vehicle, forfeited pursuant to statutory authority, in One 1985 Cadillac Seville, supra. There, the Court determined that the appellant failed to carry her burden of proving by a preponderance of the evidence that she owned the vehicle, and thus lacked standing to raise the “innocent owner” defense provided in 42 Pa.C.S. § 6801 et seq.

      . At issue was whether Ms. Myers had been divested of a "possessory right” in the money nunc pro tunc to the date of seizure by the trial court’s subsequent determination that the cash was derivative contraband, such that a claim of attachment by the Department of Revenue to satisfy a tax lien could be defeated.

      . At the time Myers was decided, there was no statutory authority for forfeiting the currency seized, causing the panel to observe:
      The only provision of Pennsylvania law under which the court in this instance could refuse to restore the property to Ms. Myers is Pa.R.Crim.P. 324(b)[.]

        Myers, 298 Pa.Super. at 279 n. 2, 444 A.2d at 1174 n. 2 (emphasis supplied). In 1984 the legislature extended the scope of forfeiture under the Controlled Substance, Drug, Device and Cosmetic Act, 35 Pa.C.S. § 780-128, to include "money.... used or intended to be used to facilitate any violation of [the Act].” The statute was repealed in 1988 and reenacted at 42 Pa.C.S. § 6801 et seq.

      . We do not mean to suggest that a trial court is required to make inquiries with respect to the source and intended purpose of property seized from a claimant. Whether such inquiries would even be necessary is a matter best left to the trial court's discretion.

      . Appellant refers in his brief to "$22,085 US currency.” However, at the hearing appellant testified that the amount of cash in the garment bag was $22,080.00.

      . 75 Pa.C.S. § 3362(a)(2), § 1543(a). The charge of driving with a suspended license was nolle prossed at the Commonwealth's request on August 24, 1994.

      . 18 Pa.C.S. § 3928.

      . The trial court consistently refers to appellant as the "defendant” throughout the proceedings, and in its opinion. However, a hearing under Rule 324 is only quasi-criminal in nature, Petition of Maglisco, 341 Pa.Super. 525, 491 A.2d 1381 (1985), and the burden required of the Commonwealth under section (b) to establish forfeitability of property as contraband rises only to a civil, “preponderance of the evidence,” standard, Commonwealth v. Fassnacht, 246 Pa.Super. 42, 369 A.2d 800 (1977), cert. denied, 439 U.S. 911, 99 S.Ct. 280, 58 L.Ed.2d 257 (1978).
      Because of the "ambiguity” inherent in Rule 324, Commonwealth v. Cox, 161 Pa.Commonwealth Ct. 589, 594 n. 8, 637 A.2d 757, 760 n. 8 (1994), hearings held pursuant to it should be conducted consistent with the plain language of the rule. Trial courts should recognize that a "person" is petitioning for the return of seized property, and the only burden of persuasion required of a petitioner under section (a) is entitlement to lawful possession or ownership of the subject property. Commonwealth v. Stipetich, 424 Pa.Super. 539, 623 A.2d 360 (1993).

      . Appellant also claims the trial court erred in excluding as hearsay a notarized letter purportedly written by his aunt claiming that $15,-000.00 of the money seized was hers and authorizing the court to release the funds to appellant. We need not decide this issue as our resolution of appellant's claim for return of his property rests on testimony offered into evidence at the hearings.

      . The trial court’s inference that appellant was not entitled to reclaim the cash relies, in part, on a finding that when questioned by the arresting officer, appellant “gave his mother’s name and said the purpose of the money was to buy his mother a house.’’ At the hearing, however, appellant stated:

        Q: Did you tell [the officer] you were going to buy your mother a house in Queens, New York?
      A: No, sir. The officer asked my mom’s name and I told him it was Winifred.
      The trial court also found as a fact that, when questioned by the police, "[defendant denied he had any money in the car except seven hundred ($700) dollars which he had on his person.” However, appellant testified at the hearing that the police "asked me if I have any drugs or any gun in the car. I said, 'No.' ’’

      . We are aware that the currency seized from appellant is in custodia legis and subject to the order of the trial court. Myers, supra at 282, 444 A.2d at 1175. However, Rule 324 makes only two provisions for disposition of seized property: “the property shall be restored,” or "the court may order the property be forfeited” if it determines the property is contraband. We conclude from this that when promulgating Rule 324, our Supreme Court did not intend for property seized to be consigned indefinitely to an evidence locker, the likely result of the trial court's actions in this case.

      . See, e.g., 72 P.S. § 8285(f) (Commonwealth must file petition to forfeit property seized for violation of the cigarette tax law within five days of confiscation or return it), § 8285(g) (defines what information forfeiture petition must include), and § 8285(e) (provides for disposition of forfeited property); 47 P.S. § 6-602(a)-(e) (setting forth procedures to be followed by Commonwealth when filing forfeiture petition under liquor code), and § 6-603 (provides for disposition of property seized and condemned); 18 Pa.C.S. § 5513(b) (adopting provisions for seizure, summary and judicial forfeiture from the liquor code for gambling devices); 18 Pa.C.S. § 5511(j) (provides that animals seized for violation of statute prohibiting cruelty to animals not deemed forfeitable until conviction first obtained, and provides for ultimate disposition of forfeited property); 30 Pa.C.S. § 927(a) (forfeiture of fish or devices used in violation of the fish law may not occur prior to conviction); 42 Pa.C.S. § 6801-6802 (setting forth process for forfeiture under controlled substances forfeitures act, including "innocent owner” defense, provisions for custody and disposal of seized property, rebuttable presumption of contraband status for cash seized in close proximity to controlled substances, and providing for institution of process “forthwith” if seizure occurs without process, annual report from each county with respect to property seized and proceeds obtained, as well as judicial review of annual state-wide report prepared by state’s Attorney General).


author: POPOVICH, Judge:

text:
    667 A.2d 748
    William SCHOFFSTALL and Judy L. Schoffstall, Appellants, v. PRUDENTIAL PROPERTY & CASUALTY INSURANCE COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 19, 1995.
    Filed Nov. 15, 1995.

      Richard A. Sadlock, Harrisburg, for appellants.

      James F. Carl, Harrisburg, for appellee.
    Before POPOVICH, SAYLOR and BROSKY, JJ.
   POPOVICH, Judge:

This case involves an appeal from the order of the Court of Common Pleas of Dauphin County granting the motion for summary judgment of the defendant Prudential Property & Casualty Insurance Co. by the plaintiffs William Schoffstall and Judy L. Schoffstall. We affirm.

In this jurisdiction, summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving part is entitled to a judgment as a matter of law. Pa.R.Civ.P. 1035(b).

The facts of this case are not in dispute: On July 4, 1992, the plaintiffs attended the Port Royal Speedway in Juniata County. As spectators, the plaintiffs observed an accident involving several vehicles in the race. As a result of the multivehicle collision, debris from the wreckage traveled from the race track into the stands and injured the plaintiffs. Thereafter, the plaintiffs filed a claim with their automobile insurance carrier, the defendant. When Prudential refused to honor the plaintiffs’ claim for first-party benefits under the policy, the plaintiffs instituted suit, and, later, cross motions for summary judgment were filed. The court ruled in favor of the defendant on the basis that the Schoffstalls were “spectators” at a privately owned raceway and not “pedestrians” at the time of the accident, the latter of which allowed for recovery under the policy of insurance issued by the defendant.

The initial issue we address is conceded by all to be one of first impression: Does Pennsylvania’s Motor Vehicle Financial Responsibility Law (MVFRL) render a claimant ineligible for benefits if injured while at an event of unregistered, uninsured motor vehicles neither intended nor maintained for use on our highways?

The MVFRL gives us some insight into a resolution of the issue posed in that throughout the statute there is repeated reference to motor vehicles having to be “registered”. Specifically, Section 1711 requires insurance carriers doing business in this jurisdiction to provide minimum medical coverage for “any motor vehicle of the type required to be registered under th[e MVFRL], except recreational vehicles not intended for highway use____” 75 Pa.C.S.A. § 1711. Also, first-party benefits are to be offered by insurers “with respect to injury arising out of the maintenance or use of a motor vehicle * * * required to be registered under th[e MVFRL], except recreational vehicles not intended for highway use.... ” Id. at § 1712. Additionally, the MVFRL lists as ineligible claimants those who are injured while occupying or operating “a recreational vehicle not intended for highway use.” Id. at § 1714.

It is the appellants’ position that because the injury-inflicting-motorized unit falls within the definition of “motor vehicle” under the Motor Vehicle Code, i.e., it is self-propelled, our inquiry is at an end in deciding whether a “racecar” comes within the ambit of the MVFRL and coverage has been established. We think not.

As this Court did in Bills v. Nationwide Mutual Insurance Co., 317 Pa.Super. 188, 463 A.2d 1148 (1983), in concluding that a “dune buggy” was not a “motor vehicle” under the now repealed No-Fault Act, we likewise render our decision without judicial blinders but with eyes open to a common sense interpretation of the statute, and any applicable case law, in deciding whether a vehicle operated during the course of a race on private property and injuring “spectators” is a “motor vehicle” for purposes of recovery under the MVFRL.

Applying this rationale, we note initially that the Pennsylvania Code defines a motor vehicle as “[a] vehicle of a kind required to be registered under 75 Pa.C.S. § 1301-1377 (relating to registration of vehicles).” 31 Pa.Code § 66.1. The MVFRL specifically excludes from the list of vehicles required to be registered, and for which insurance need to be issued, “recreational vehicles not intended for highway use.” 75 Pa.C.S.A. §§ 1711, 1712 (Supp.1995-96). Our General Assembly enacted the now repealed No-Fault Act and the present MVFRL to regulate the maintenance and use of a motor vehicle over this Commonwealth’s highways. See, e.g., Metzel v. State Farm Mutual Insurance Co., 389 Pa.Super. 30, 566 A.2d 600 (1989) (Motor home parked with engine shut off was not “a vehicle” within the No-Fault Act); Bills, supra (“Dune buggy” operated on private property and not registered was not a “motor vehicle” allowing for personal injury recovery under the No-Fault Act); cf. Petties v. Petties, 210 N.J.Super. 14, 509 A.2d 190 (1986) (Family members killed by carbon monoxide while asleep above garage were not “pedestrians” under New Jersey’s Automobile Reparation Reform Act covering injuries sustained while occupying, entering into, alighting from or using automobile).

The fact that the “racecar” causing the appellants’ injuries could have been driven on a highway and the fact that it was self-propelled to fit within the definition of “motor vehicle” contained in the Motor Vehicle Code are not dispositive. We look to the fact that at the time of the accident the vehicle was being operated exclusively off a public highway without insurance or registration as a recreational vehicle. See Bills, supra. Further, from a common sense perspective, we cannot lose sight of the context in which the appellants sustained injury from flying debris while “spectators” in the stands at a Fourth of July celebration in a location open to the public and for which entertainment in the form of a car race was part of the festivities.

To find liability under the policy issued by defendant would require a distortion of even the liberal rules of interpretation to be given the MVFRL in favor of coverage. Lambert v. McClure, 407 Pa.Super. 257, 595 A.2d 629 (1991).

Statutes must be construed to avoid absurd and ludicrous results. If adherence to the strict letter of a statute would lead to such a result, a court may resort to extrinsic aids to interpret the statute. See Metzel, supra; Bills, supra; Olmstead v. Miller, 383 N.W.2d 817, 820 (N.D.1986). We have done so here in examining the MVFRL (in contrast to the No-Fault Act) and caselaw against a backdrop of the objectives sought to be achieved by the General Assembly in enacting the MVFRL. None of the above, we believe, gives substance or credence to the plaintiffs’ argument seeking entitlement to coverage for injuries incurred while a “spectator” at a race with uninsured, unregistered vehicles unintended for use on the public highways.

Finding no merit to the appellants’ arguments, we affirm the order granting the defendant’s motion for summary judgment.

Order affirmed.

      . The Order was reduced to judgment on November 21, 1994.

      . 75 Pa.C.S.A. § 1301 et seq. (Supp. 1995-96).

      . See 75 Pa.C.S.A. § 102 (Supp. 1995-96).

      . In the plaintiffs' Reply to New Matter to Paragraph 22, the defendant’s assertion that the vehicle in question was uninsured and unregistered were not denied specifically. Rather, the appellants only refuted that the MVFRL "does not require the vehicle to be insured, registered, or used on the public highways to be a motor vehicle.” Thus, in the absence of a specific denial, this Court may consider admitted the defendant’s claim that the racecar was unregistered, uninsured and designed exclusively for off the road use. See Pa.R.Civ.P. 1029(a), (b).

      . The appellants’ location and non-ambulatory position would negate labelling either one a "pedestrian” as that term is defined under the Motor Vehicle Code. See 75 Pa.C.S.A. § 102 (Supp.1995-96), which provides "pedestrian” is “[a] natural person afoot.” Similarly, those courts which have had occasion to address entitlement to compensation for injuries where the applicability of a claimant as a "pedestrian” was raised, the term has been defined as involving an ambulatory or stationary claimant juxtaposed to a highway or street over which motor vehicles traverse. See, e.g., Olmstead v. Miller, 383 N.W.2d 817, 820 (N.D.1986) (Occupants of parked mobile home not pedestrians for insurance purposes); Braswell v. Burrus, 13 Md.App. 513, 284 A.2d 41, 43 (1971) (“... a pedestrian is a person on foot, as distinguished from one in or on a vehicle on or near a public highway or other place where motor vehicle laws apply). Such a definition, of necessity, excludes the appellants from being listed as “pedestrians” entitled to insurance coverage here. See Lower Court Opinion, 11/14/94, at 4.

      . The appellants also raise an equitable estoppel/waiver argument with the defendant’s initial payment of their claim for benefits and then cessation upon subsequent review. We find this contention to be specious.

        The appellants have not produced any support for the proposition that an insurer is foreclosed from reassessing the validity of a claim once payments have begun. The present action is not one where the insurer previously managed the defense of a liability claim to final verdict or settlement. See, e.g., Draft Systems, Inc. v. Alspach, 756 F.2d 293 (3rd Cir.1985). This case was still active at the time the insurer reexamined the merits of the claim and concluded that payment should cease. We find that such action did not impair the insurer’s right to terminate payments after counselled review.


author: BROSKY, Judge.

text:
    667 A.2d 751
    COMMONWEALTH of Pennsylvania v. Scott W. McCARDLE, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 21, 1995.
    Filed Nov. 17, 1995.

      Joseph M. Devecka, State College, for appellant.
    Stephen S. Snook, District Attorney, Lewistown, for the Commonwealth, appellee.
    Before POPOVICH, SAYLOR and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from the judgment of sentence entered following appellant’s conviction for driving while under the influence of alcohol or a controlled substance.

Appellant presents the following issues for our review: (1) whether appellant is responsible for supplying this court with a complete record for review: (2) whether the trial court erred in refusing appellant’s written request for an instruction and in charging the jury that “incapable of safe driving” means “cannot drive safely;” and (3) whether the trial court erred in denying certain defense objections raised at trial. For the reasons set forth below, we remand for completion of the certified record.

Before addressing appellant’s claims, we will briefly recount the pertinent facts and history giving rise to this appeal. Patrolman Jack Miller observed appellant, Scott McCardle, operating his vehicle in an erratic manner during the early morning hours of August 7, 1993. As a result, Officer Miller stopped appellant for further investigation. Due to appellant’s bloodshot eyes and exudation of a strong odor of alcohol, Officer Miller asked appellant to perform field sobriety tests. Appellant failed the tests and was subsequently charged with driving while under the influence of alcohol.

Appellant was convicted of this offense following a jury trial held on January 13, 1994. Although appellant filed post-trial motions, the trial court dismissed the motions without prejudice to re-file them after the imposition of sentence. On March 14, 1994, appellant was sentenced to a term of one (1) to two (2) years imprisonment. Appellant has timely appealed from the judgment of sentence.

Appellant first asserts that he is not responsible for supplying this court with a complete transcript, and thus, that his remaining issues are not waived. Appellant’s Brief at 7-8. The Commonwealth, on the other hand, contends that appellant should be held responsible for failing to supply this court with a transcript or other equivalent picture, hence resulting in the waiver of his claims. Appellee’s Brief at 2-3. In support of its argument, the Commonwealth relies upon this court’s decision in Commonwealth v. Osellanie in which we deemed the defendant’s claims to be waived where he failed to supply us with a transcript or statement in lieu of a transcript. Commonwealth v. Osellanie, 408 Pa.Super. 472, 476, 597 A.2d 130, 132 (1991).

The defendant in Osellanie apparently did not order the transcript and ascertain its presence in the record before the record was certified for appeal. See id., 408 Pa.Super. at 475, 597 A.2d at 131. Although this court initiated our own inquiries concerning the whereabouts of the transcript, our efforts proved unavailing. Id., 408 Pa.Super. at 476, 597 A.2d at 132. Since it appeared that the notes of testimony could not be located or did not exist, it was thus incumbent upon the defendant to file a statement in the absence of a transcript. Unfortunately, the defendant did not avail himself of this alternative procedure and thereby precluded this court from reviewing the merits of some of his claims. Id.

Unlike the situation in Osellanie, it appears that the trial in this case was recorded by the court reporter and that the notes of testimony exist, albeit in an untranscribed form. Appellant formally requested that the court reporter transcribe the proceedings in accordance with Pa.R.A.P., Rule 1911(a), 42 Pa.C.S.A. and Pa.R.J.A., Rule 5000.5, 201 Pa.Code. However, the court reporter, who has since retired, failed to transcribe the notes of testimony and lodge them with the clerk of court within the time period set forth in Pa.R.A.P., Rule 1922(a), 42 Pa.C.S.A. and Pa.R.J.A., Rule 5000.9, 201 Pa.Code. Despite the court reporter’s failure to perform her duties, the trial court neither imposed sanctions on the reporter nor adopted other measures to facilitate transcription of the proceedings. In fact, our own inquiries regarding the whereabouts of the transcript indicate that the trial court refuses to take action absent a specific directive from this court.

It is the trial court’s responsibility to supervise its personnel and assure that the court reporters perform their duties without delay. Commonwealth v. Morgan, 469 Pa. 35, 38 n. 2, 364 A.2d 891, 892 n. 2 (1976). Where a court reporter is remiss in his or her duties, the trial judge is required to employ the sanctions necessary to assure the orderly administration of justice. Id. See also Pa.R.J.A., Rule 5000.10, 201 Pa.Code (discussing sanctions to be imposed where a court reporter fails to deliver a transcript within the time period specified in 201 Pa.Code Rule 5000.9). The trial judge also has thé authority to designate another reporter to transcribe the notes of testimony and certify the transcript in the event that the reporter who took the notes leaves the jurisdiction of the court, dies or becomes incapacitated before transcribing the notes. Pa.R.J.A., Rule 5000.12(b), 201 Pa.Code.

In view of the above, we find that appellant has taken the requisite steps to obtain the transcript. However, appellant’s efforts have been thwarted by the court reporter’s unwillingness or inability to perform her duties and the reluctance of the trial court to compel compliance or take other appropriate action. Under these circumstances, appellant’s actions in attempting to secure the transcript are clearly distinguishable from the type of conduct displayed by the defendant in Osellanie. We accordingly decline to invoke the waiver doctrine in this instance.

Having resolved this threshold issue, we are unable to review the merits of the remaining issues due to the lack of a transcript of the proceedings. Review has also been hampered by the trial court’s failure to supply us with an opinion. We are therefore compelled to remand this matter to the trial court for completion of the record in accordance with the attached order.

Remanded with directives. Panel jurisdiction retained.

      . 75 Pa.C.S.A. § 3731(a).

      . For purposes of discussion, we have revised the order in which we will address appellant’s claims.

      . Because appellant was convicted after January 1, 1994, the amendments to the post-verdict motions rules were applicable. See Note, Pa.R.Crim.P., Rule 1410, 42 Pa.C.S.A. (as amended December 17, 1993 effective as to cases in which the determination of guilt occurs on or after January 1, 1994).

      . Upon remand, the trial court should direct appellant to file a statement of matters complained of on appeal pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A. Upon receipt of the statement, the trial court shall issue an opinion in accordance with Pa.R.A.P., Rule 1925(a), 42 Pa.C.S.A.