author: KELLY, Judge:

text:
    508 A.2d 1247
    Patricia RIFF and Joseph Riff, Appellees, v. MORGAN PHARMACY, William T. Stack, M.D. Appeal of MORGAN PHARMACY.
    Superior Court of Pennsylvania.
    Argued Jan. 23, 1986.
    Filed May 7, 1986.

      John J. O’Brien, Jr., Philadelphia, for appellant.
    Edward J. Schwabenland, Philadelphia, Thomas E. Mellon, Jr., Doylestown, for appellees.
    Before OLSZEWSKI, TAMILIA and KELLY, JJ.
   KELLY, Judge:

This case involves the appeal of the defendant pharmacy from a jury verdict in favor of the plaintiffs which found the defendant pharmacy jointly liable for injuries sustained by the plaintiffs as a result of the negligence of the physician and pharmacy in prescribing and dispensing a dangerous and potentially toxic prescription drug without instruction to the plaintiff regarding the uniformly accepted maximum safe dosage or warning as to the serious and life threatening side effects which result from exceeding the maximum safe dosage.

On appeal, the defendant, Morgan Pharmacy, raises fifteen separate issues in support of its contentions that the trial court erred in failing to grant the defendant’s motion for judgment notwithstanding the verdict or in the alternative for new trial, and that the trial court abused its discretion in molding the verdict into a judgment. We cannot agree.

We have reviewed the voluminous record, the briefs of the parties, and the well reasoned opinion of the Honorable Michael E. Wallace. We find that the evidence was sufficient to sustain the verdict, that the trial court committed no errors of law requiring the grant of a new trial, and that the court did not abuse its discretion in molding the verdict. Issues raised regarding legal causation, and joint tortfeasor status present issues of general significance to the public which compel further examination. Appellant’s other arguments were adequately disposed of by the learned trial court, and we affirm on the basis of its opinion below.

The appellant contends that its acts and omissions do not constitute legal causation as the plaintiff relied solely upon the express instructions of Dr. Stack. We apply Whitner v. Von Hintz, 437 Pa. 448, 263 A.2d 889 (1970), and find that legal causation is established where a pharmacy fails to exercise due diligence in its professional capacity and but for its failure to exercise due diligence the injuries to the plaintiffs would not have occurred.

The appellant contends that the trial court erred in finding that Morgan Pharmacy and Dr. Stack were joint tortfeasors. We apply Lasprogata v. Qualls, 263 Pa.Super. 174, 397 A.2d 803 (1979) and Voyles v. Corwin, 295 Pa.Super. 126, 441 A.2d 381 (1982), and find that the defendants were in fact joint tortfeasors.

The appellant further contends that the indemity concepts of primary and secondary liability should be applied in the instant case. We distinguish Builders Supply v. McCabe, 366 Pa. 322, 77 A.2d 368 (1951), and other cases cited by the appellant and find that public policy precludes any application of the concept of primary and secondary liability to the facts of the instant case. The defendants were in fact joint tortfeasors.

The facts necessary to our decision and supported by the evidence were summarized by the learned trial court as follows:

On January 24, 1979, plaintiff Patricia Riff awoke with a migraine headache. Mrs. Riff went to her mother’s home and the family physician, defendant William T. Stack, M.D., was summoned. Dr. Stack visited Mrs. Riff and provided a prescription for a package of 12 Cafergot suppositories, with written instructions thereon to insert one in the rectum “every four hours for headache”. The prescription did not contain any notation to authorize a refill.
... Upon obtaining the prescription Mrs. Riffs husband, Joseph Riff, immediately took it to defendant Morgan Pharmacy and obtained a package of twelve Cafergot suppositories. Morgan Pharmacy (Morgan) did not issue any additional instructions regarding the use or dangers of the drug. Morgan merely typed the words “insert one every 4 hours for headache” on the package label. Between the evening of January 24th and the morning of January 25th Mrs. Riff inserted a total of three or four Cafergot suppositories before obtaining relief.
In early April of 1979 Mrs. Riff suffered a second severe migraine headache. She inserted the Cafergot suppositories remaining from her first attack over the course of the next two days until her supply of the drug ran low and her husband took the empty package back to Morgan Pharmacy, which refilled the prescription. This migraine headache lasted 3V2 to 4 days, during which time plaintiff used 15 to 17 supporitories by inserting one every four hours as instructed.
On August 27, 1979 Mrs. Riff suffered a third migraine headache. She discovered that she only had a few Cafergot suppositories remaining and once again Morgan Pharmacy refilled the prescription and provided her husband with an additional 12 suppositories. This headache lasted two days and Mrs. Riff used five or six suppositories. On August 31, 1979 Mrs. Riff began experiencing discomfort in her right foot. The next day she became concerned and walked to nearby Northeast Hospital where she was examined in the emergency room. Following a transfer in Pennsylvania Hospital for the performance of two arteriograms to determine whether she suffered from a blood clot it was determined that there were no clots but that her condition was the result of the toxic effects of an overdose of Cafergot. Mrs. Riff was initially advised by doctors that she was likely to die. That opinion was later revised and Mrs. Riff was advised that it was likely that her leg would have to be amputated. As time passed her condition improved to a degree that amputation was deemed unnecessary, but her foot suffered permanent damage resulting from diminished blood circulation and nerve damage due to the Cafergot overdose. As a result her foot tends to drag and is in a constant state of discomfort. Testimony was offered as to the adverse consequences to her life and marriage. This condition will never improve.

(Trial Court Opinion at 1-5.)

The medical evidence established that Cafergot suppositories have beneficial effects in treating migraine headaches due to its action in constricting blood vessels if administered in the proper dose. The maximum dosage for Cafergot suppositories specified in the accepted medical literature is one suppository, with a permissible second suppository in one hour if necessary. The dose is not to exceed two per attack and in no event should the user administer in excess of five in one week.

The defendant physician, William T. Stack, M.D., testified that he recognized that Cafergot is a dangerous drug, that he was aware of the maximum dosage, and that his instructions should have included limitations as to maximum dosage. He testified that he did not authorize any refills and that he had no knowledge of any such refills.

The records of Morgan Pharmacy indicate that after the prescription was filled on January 24, 1979, it was refilled on four other occasions, February 16, 1979, August 27, 1979, August or September 31, 1979 and October 21, 1979. Morgan Pharmacy claimed at trial that Dr. Stack had telephoned on February 26,1979, and authorized the refilling of the prescription five times. This fact was disputed at trial.

Cafergot suppositories were sent to the pharmacy in a box which contains a corner attachment which contains among other things instructions as to the maximum safe dosage and warnings as to adverse side effects which may be caused by the drug. Exhibit P-28. The corner attachment was not on the box given to Mr. Riff. (Record at 747.) It is undisputed that the only instruction given to the plaintiff was to insert one Cafergot suppository every four hours for relief of her migraine headache.

The expert testimony established that Cafergot suppositories were a caution legend drug. Such drugs may only be dispensed upon a physicians prescription; the prescription may only provide for five refills and the prescription becomes invalid six months after the date of the prescription.

Experts testified that the toxic propensities of Cafergot suppositories were well known in the pharmacological community, and that instructions as to proper dosage and warnings are listed in the standard reference books which all pharmacists are required by law to maintain. Pharmacists and a pharmacologist testified that a pharmacist who receives a prescription which has inadequate instructions as to maximum dosage has a duty to either ascertain if the patient is aware of the limitation concerning the use of the medication or to contact the prescribing physician to call the inadequacy of the prescription to the doctor’s attention. Experts testified further that under the facts of this case a reasonably prudent pharmacist would have taken steps to correct the error of the prescribing physician.

Morgan Pharmacy raises fifteen arguments in support of its appeal; however, we affirm on the basis of the opinion of the learned trial court and discuss only the issues of legal causation, and joint tortfeasor status which involve issues of general public interest.

Initially we must examine the premise upon which the appellant’s arguments are based. The appellant states:

... it was Dr. Stack’s function and duty to determine the number of suppositories to be used by the wife-plaintiff and it was the use that caused the injury. With respect to Morgan Pharmacy, its function and duty was to supply the medication; the supply did not cause the harm. Thus, Dr. Stack’s conduct was a substantial factor or the legal cause of the harm to the wife-plaintiff. Conversely, the mere supplying of the medication by Morgan Pharmacy as opposed to its use is not a substantial factor or legal cause of the harm to wife-plaintiff. Whitner v. Von Hintz, 437 Pa. 448, 263 A.2d 889 (1970).

(Appellant’s Brief at 11.)

The statement by the appellant that “its function and duty was to supply the medication” is incorrect, and yet it is quite illustrative of the appellant’s disregard for the professional duty owed the plaintiff by the defendant pharmacy. The appellant would seem to argue that a pharmacy is no more than a warehouse for drugs and that a pharmacist has no more responsibility than a shipping clerk who must dutifully and unquestioningly obey the written orders of omniscient physicians. Such is not the case.

The practice of pharmacology is a regulated profession in Pennsylvania. Pharmacists are required to hold a degree in pharmachology from a school accredited by the American Council of Pharmaceutical Education, to complete an internship, and to pass a comprehensive examination administered by the State Board of Pharmacy. 63 Pa.S.A. § 390-3. Pharmacies are also licensed in Pennsylvania. 63 Pa.S.A. § 390-4. The purpose of the Pharmacy Act was to “regulate the compounding of physician’s prescriptions, preparing drugs, and dispensing them, or other products of an apothocaries calling, Boyd v. Frenchee, 37 F.Supp. 306 (D.C.N.Y. 1941); the Act was remedial in nature and belonged to that class of legislation which had for its objective the protection of the health and safety of the public. Commonwealth v. Dimas, 170 Pa.Super. 5, 84 A.2d 218 (1951). Under 63 Pa.S.A. § 390-6(h)(l) the State Board of Pharmacy is empowered and invested with the duty to regulate the practice of pharmacy.

In determining the degree of skill required of a physician or other professional medical personnel, Pennsylvania law does not demand extraordinary skill, but, rather, that degree which ordinarily characterizes the profession; in judging this degree of skill, regard is to be had to the advanced state of the profession at the time. Titchell v. United States, 681 F.2d 165 (3rd Cir.1982); see Baur v. Mesta Mach. Co., 405 Pa. 617, 176 A.2d 684 (1962).

A pharmacist is a professional. In the performance of his professional duties he will be held to the standard of care, skill, intelligence which ordinarily characterizes the profession. Public policy requires that pharmacists who prepare and dispense drugs and medicines for use in the human body must be held responsible for the failure to exercise the degree of care and vigilance commensurate with the harm which would be likely to result from relaxing it. See: Incollingo v. Ewing, 444 Pa. 263, 282 A.2d 206 (1971).

The appellant argues that his acts or omissions do not constitute a legal cause of the plaintiffs injuries as the plaintiff relied solely upon the express instructions of Dr. Stack. The appellant misapprehends the law regarding causation. Causation does not require reliance.

The appellant cites Whitner v. Von Hintz, 437 Pa. 448, 263 A.2d 889 (1970), in support of his proposition. Whitner does not in fact support this contention. Indeed, Whitner provides:

That if the harmful result would have come about even had the actor not been negligent, the negligent conduct, even though contributory, is not a substantial factor, hence no legal causation, and no liability.

437 Pa. at 456-57, 263 A.2d at 984 (emphasis added).

In the instant case the pharmacy had a legal duty to exercise due care and diligence in the performance of its professional duties. Sufficient credible evidence was presented to establish that Morgan Pharmacy breached that duty by failing to warn the patient or notify the prescribing physician of the obvious inadequacies appearing on the face of the prescription which created a substantial risk of serious harm to the plaintiff. But for this negligence the error would have been corrected and the injuries would not have occurred. Causation was established.

The appellant next contends that Morgan Pharmacy and Dr. Stack were not joint tortfeasors. Consequently, the appellant argues that the release of Dr. Stack by the plaintiffs should act as a release of Morgan Pharmacy under the holding in Koller v. Pennsylvania R. Co., 351 Pa. 60, 40 A.2d 89 (1944). Roller does not apply.

The issue of whether liability is capable of being apportioned between the plaintiffs, of whether the defendants are separate or joint-tortfeasors, is a question of law for the court and not of fact for the jury. See Voyles, supra.; Restatement (Second) Torts § 434(l)(b). In Lasprogata, supra., this Court explained:

to be a joint tortfeasor the parties must either act together in committing the wrong, or their acts, if independent of each other must unite in causing a single injury.

263 Pa.Superior Ct. at 179, n. 4, 397 A.2d at 805, n. 4 (emphasis added).

In Voyles, supra., this Court indicated that the following factors should be considered in determining whether liability was joint or separate:

... the existence of a same or like duty; whether the same evidence will support an action against each; the single, indivisible nature of the injury to the plaintiffs; identity of the facts as to time, place or result; ... responsibility of the defendents for the same injuria as distinguished from damnum. Prosser, Law of Torts, 46, n. 2 (4th Ed.1971) ...

295 Pa.Superior Ct. at 130-31, 441 A.2d at 383.

Applying Lasprogata and Voyles to the facts of the instant case we find that the trial court was correct in determining that liability was joint rather than separate. Dr. Stack had a duty to exercise due care in prescribing the Cafergot, Morgan Pharmacy had a duty of due care in dispensing the Cafergot. Both were negligent in failing to exercise the degree of care which ordinarily characterizes their respective professions. The proof of the negligence as to each of the defendants was essentially the same: that Cafergot was well known as a potentially toxic drug and that the instructions written on the prescription were inadequate. The duty and the breach are similar. The injury caused by the breach of their respective duties is single and indivisible. If either of the defendants had not been negligent, none of the injury would have occured. Each is responsible for the entire injuria as well as damnum.

The appellant further contends that the concept of primary and secondary liability applies in the instant case as Morgan Pharmacy “may be considered as a conduit through which the subject medication was supplied for use pursuant to Stack’s specific instruciton.” Appellant’s Brief at 14. The appellant cites Builders Supply v. McCabe, 366 Pa. 322, 77 A.2d 368 (1951), in support of this argument.

In Builders Supply, our Supreme Court stated:

[Secondary as distinguished from primary liability rests upon a fault that is imputed or constructive only, being based on some legal relation between the parties, or arising from some positive rule of common or statutory law, or because of a failure to discover or correct a defect or remedy a dangerous condition caused by the act of the one primarily responsible....

366 Pa. at 328, 77 A.2d at 371. The appellant seeks to have this Court apply the concept of secondary liability to the facts of the instant case on the basis of the underlined portion of the quoted passage. The appellant’s reliance upon Builders Supply, however, is misplaced.

The appellant seeks to expand the dicta of Builders Supply beyond its logical application. The Court went on to illustrate the underlined text with two cases, Philadelphia Company v. Central Traction Co., 165. Pa. 456, 30 A. 934 (1895) and Orth v. Consumers Gas Co., 280 Pa. 118, 124 A. 296 (1924). Both of these cases involved the secondary liability of property owners for injuries resulting from hazardous condition on their property which were created by the negligence of other persons.

The appellant also cites Burbage v. Boiler Engineering & Supply Co., 433 Pa. 319, 249 A.2d 563 (1969); Tromza v. Tecumseh Products Co., 378 F.2d 601 (3rd Cir.1967); and Sochanski v. Sears Roebuck Co., 689 F.2d 45 (3rd Cir.1982). Each of these cases involves an indemnity claim based upon vertrical responsibility of a parts manufacturer for the introduction of a defective part into the stream of commerce.

Neither Builders Supply nor any of the other cases cited by the appellant supports application of indenmification principles in the instant case. Unlike the landowners in Philadelphia Company and Orth, Morgan Pharmacy’s negligence was active, not passive. Morgan Pharmacy’s pharmacists undertook the responsibility to perform professional services with the degree of care, skill, and intelligence which ordinarily characterizes the practice of pharmacology. Expert testimony established that the “reasonable pharmacist” has an affirmative duty to read the prescription and to be aware of patent inadequacies in the instructions as to maximum safe dosage of known toxic drugs and medicines. Morgan Pharmacy’s pharmacists failed in that duty.

Fallibility is a condition of the human existence. Doctors, like other mortals, will from time to time err through ignorance or inadvertance. An error in the practice of medicine can be fatal; and so it is reasonable that the medical community including physicians, pharmacists, anesthesiologists, nurses and support staff have established professional standards which require vigilance not only with respect to primary functions, but also regarding the acts and ommissions of the other professionals and support personnel in the health care team. Each has an affirmative duty to be, to a limited extent, his brother’s keeper.

It is not for this Court to delineate the precise bounds of a medical professional’s responsibilities. It is for the medical community to determine what degree of vigilance is required in this respect. They are in the best position to balance the interests and prescribe a standard of conduct which is consistant with the best interests of the patient.

In the instant case the testimony of the medical experts, both physicians and pharmacists, established that the conduct of Morgan Pharmacy’s pharmacists fell below the level of reasonable conduct in the practice of pharmacy. The jury heard the evidence and found that Morgan Pharmacy was not only negligent but more negligent that Dr. Stack.

The equity considerations which are the basis of an indemnity claim are not present in the instant case. There is no issue of liability without fault. Moreover, public policy requires that medical professionals be held to the highest degree of legal responsibility for the failure to perform their respective professional duties with the degree of care, skill, and intelligence which ordinarily characterize the profession. Application of indemnity principles would have the affect of judicially repealing the standards of professional conduct which expert testimony established in this case.

Such an intrusion upon the progress and development of professional standards in the medical community is unwarranted and unwise. If the consensus of the medical community is that a safety net of overlapping responsibilities is necessary to serve the best interests of patients, it is not for the judiciary to dismantle the safety net and leave patients at the peril of one man’s human frailty. Reason and public policy compel rejection of any attempt to apply indemnification principles to the facts of the instant case.

For the foregoing reasons the judgment of the learned trial court is affirmed.

      . The record shows an “8" with a "9” over it indicating the month, and the day is "31” (although there are only 30 days in September).

      . Both Mr. and Mrs. Riff testified that the second migraine did not occur until April, 1979 (Record at 744, and 978). Both Mr. and Mrs. Riff deny receiving the last two refills (Record at 773-774, 968). Dr. Stack denied authorizing any refills (Record at 438-39). Dr. Stack specifically denied the alleged telephone authorization and the issuance of a new prescription on August 27, 1979 (Record at 449).

      . Title 49, § 27.14, mandates that all pharmacists maintain copies of the latest editions of the National Formulary and the United States Pharmacopoeia. In addition, they must have a reference publication such as the Physician’s Desk Reference. All three of these volumes contain a listing for Cafergot suppositories, along with the proper dosage for them. The recommended dosage according to all three sources is two suppositories per attack, and not to exceed five per week. See also 63 Pa.S.A. § 390-4(a)(l).

      . Burgage involved the claim of a boiler manufacturer against a valve manufacturer; Tromza involved claims asserted by a refrigerator manufacturer against a compressor manufacturer; and Sochanski involved the claim of a tire retailer against a tire manufacturer.


source: Caselaw Access Project

author: WATKINS, Judge:

license: Public Domain

text:
    508 A.2d 1254
    Sandra McCARTNEY, Appellant v. MEADOWVIEW MANOR, INC.
    Superior Court of Pennsylvania.
    Submitted Dec. 17, 1985.
    Filed May 8, 1986.

      Michelle DeBord, Huntingdon, for appellant.
    Harvey B. Reeder, Huntingdon, for appellee.
    Before WIEAND, OLSZEWSKI and WATKINS, JJ.
   WATKINS, Judge:

This is an appeal from an Order entered by the Court of Common Pleas of Huntingdon County sustaining the demurrer of the appellee-employer, Meadowview Manor resulting in the dismissal of appellant-employee’s complaint.

Appellant was hired by appellee to perform certain duties at appellee’s nursing home, including cooking, cleaning and caring for residents, commencing on October 2, 1983. On November 16, 1983, appellee told appellant that her continued employment constituted a “business conflict” and she was, therefore, fired.

The “business conflict” referred to was the result of the fact that during the course of her employment, the appellee learned that the appellant’s name had appeared on an application for a license to operate a personal care home for adults, and that the appellant was listed as the proposed manager. This information was obtained by the appellee from an employee of the Department of Public Welfare.

On appeal, the appellant presents the following questions for our consideration:

Whether it was error to grant a demurrer where the court considered factual matters not averred in the complaint, where a specific intent to harm appellant had been alleged and where it was alleged that appellant’s dismissal was against public policy considerations.

Appellant argues that the court below erred in finding a business conflict as the justification for the dismissal. Since her complaint did not allege a business conflict, the court was precluded from using that reason as a basis for granting the demurrer. Appellant relies on Hunter v. Port Authority of Allegheny County, 277 Pa.Superior Ct. 4, 419 A.2d 631 (1980).

This issue does not concern a classic speaking demurrer in which a fact completely lacking from the record is relied upon in acting upon the demurrer rather, it concerns the reasonable inferences and legitimate consequences of facts which were admittedly in the complaint. After reviewing the complaint and the trial court’s opinion we cannot conclude that the court below considered factual matters not averred in the complaint. Therefore, the court below did not err in granting the demurrer.

Appellant was an employee-at-will and could be discharged at any time unless her discharge was wrongful in that it violated a clearly recognized public policy. Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974). However, even if an important public policy is involved, the employer may discharge an employee-at-will if he has a separate, plausible and legitimate reason for doing so Cisco v. United Parcel Services, 328 Pa.Superior Ct. 300, 476 A.2d 1340 (1984). As the court below pointed out:

The public policy exception to the employee-at-will doctrine is a narrow one. Boresen v. Rohm & Haas, Inc., 526 F.Supp. 1230 (E.D.Pa.1981). “The definition of a ‘clearly mandated public policy’ as one that ‘strikes at the heart of a citizen’s social right, duties and responsibilities,’ set forth in Palmateer v. International Harvester Co., 85 Ill.2d 124, 52 Ill.Dec. 13, 421 N.E.2d 876 (1981), appears to provide a workable standard for tort action.” ]Novose v. Nationwide Ins. Co., 721 F.2d 984 [894] (3rd C.R. [Cir.] 1983). at 899. The fact that an employer’s actions seem unfair is not enough Boresen, supra.
The Plaintiff has cited many cases to the Court which have held that an employer has wrongfully discharged an employee-at-will. In all those cases the discharge had clearly violated a well-recognized mandate of public policy. However, the public policy that Plaintiff urges this Court to recognize in this case is not so evident. The Court believes it is not against public policy for an employer to fire an employee who has been actively seeking employment with a competitor in a management position.
An employer has the right to expect some loyalty from its employees and could logically assume that someone seeking a position elsewhere may not be completely motivated to do their present job properly. Further, an employer may be reluctant to fully train someone if that person can, while still on the present employer’s payroll, shop his talents around to other employers and eventually use that training to take business away from the person who trained him. Lower court opinion at pp. 3-4.

We agree with the court below and find no public policy affected by the discharge of an at-will employee. The demurrer was properly sustained.

Order affirmed.

JUDGMENT

ON CONSIDERATION WHEREOF, it is now hereby ordered and adjudged by this Court that the Judgment of the Court of Common Pleas of Huntingdon County is affirmed.


author: POPOVICH, Judge:

text:
    508 A.2d 1256
    COMMONWEALTH of Pennsylvania v. Andrew P. DONATO, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 18, 1985.
    Filed May 9, 1986.

      Frank J. Marcone, Media, for appellant.
    Vram Nedurian, Jr., Assistant District Attorney, Newton Square, for Commonwealth, appellee.
    Before CIRILLO, MONTEMURO and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of sentence which was imposed upon appellant, Andrew Donato, after the court revoked appellant’s probation. We affirm.

Appellant raises the following issues: (1) whether the trial court erred when it decided a motion to recuse itself instead of appointing another judge to decide the issue; (2) whether the trial court erred in failing to comply with the requirements of Pa.R.Crim.P. 1403 which mandate a presentence report or a statement of reasons for dispensing with same; (3) whether the trial court erred in failing to convene a timely revocation hearing; (4) whether the prosecution erred in failing to give appellant proper notice of the alleged probation violation; (5) whether the sentence imposed was illegal because it exceeded the established guidelines for technical probation violations; and (6) whether the trial court was without jurisdiction to initiate the revocation proceedings against the appellant.

The record establishes the following facts:

On September 21, 1979, appellant entered pleas of guilty to drug offenses. Because of a negotiated plea agreement in which appellant agreed to cooperate with the prosecution in several ongoing drug investigations, appellant received four concurrent terms of probation of five years each.

Approximately three years later, on July 31, 1982, appellant was arrested in Montgomery County for possession of a controlled substance with intent to deliver. A preliminary hearing was held on these charges; however, on January 4, 1983, the proceedings were terminated because the evidence was ordered suppressed.

Subsequently, hearings were held, and the trial court concluded that appellant was in violation of his probation. As a result, appellant’s probation was revoked, and appellant received a term of imprisonment of not less than three nor more than five years minus one day. Appellant’s motion for reconsideration of sentence was denied, and this appeal followed.

Appellant argues that the trial court was without authority to initiate the revocation proceedings against appellant. We must disagree.

The trial court’s authority to impose a term of probation has been set forth in the following manner:

Whenever any person shall be found guilty of any criminal offense by verdict of a jury, plea, or otherwise, except murder in the first degree, in any court of this Commonwealth, the court shall have the power, in its discretion, if it believes the character of the person and the circumstances of the case to be such that he is not likely again to engage in a course of criminal conduct and that the public good does not demand or require the imposition of a sentence to imprisonment, instead of imposing such sentence, to place the person on probation for such definite period as the court shall direct, not exceeding the maximum period of imprisonment allowed by law for the offense for which such sentence might be imposed. 61 P.S. § 331.25.

However, the authority to supervise a probationer and/or a parolee is within the province of the Pennsylvania Board of Probation and Parole as set forth in the following statutory scheme:

331.17. Powers of board respecting parolees; supervision of persons placed on probation; sentences for less than two years excepted
The board shall have exclusive power to parole and reparole, commit and recommit for violations of parole, and to discharge from parole all persons heretofore or hereafter sentenced by any court in this Commonwealth to imprisonment in any prison or penal institution thereof, whether the same be a state or county penitentiary, prison or penal institution, as hereinafter provided. It is further provided that the board shall have exclusive power to supervise any person hereafter placed on parole (when sentenced to a maximum period of less than two years) by any judge of a court having criminal jurisdiction, when the court may by special order direct supervision by the board, in which case the parole case shall be known as a special case and the authority of the board with regard thereto shall be the same as herein provided with regard to parole cases within one of the classifications above set forth: Provided, however, That, except for such special cases, the powers and duties herein conferred shall not extend to persons sentenced for a maximum period of less than two years, and nothing herein contained shall prevent any court of this Commonwealth from paroling any person sentenced by it for a maximum period of less than two years: And provided further, That the period of two years herein referred to shall mean the entire continuous term of sentence to which a person is subject, whether the same be by one or more sentences, either to simple imprisonment or to an indeterminate imprisonment at hard labor, as now or hereafter authorized by law to be imposed for criminal offenses. The power of the board to parole shall extend to prisoners sentenced to definite or flat sentences. As amended 1965, Dec. 27, P.L. 1230, § 8. 61 P.S. § 331.17
§ 331.17a. Supervising probationer; pre-sentence investigation; grant-in-aid; in-service training
(a) The board shall have exclusive power to supervise any person hereafter placed on probation by any judge of a court having criminal jurisdiction, when the court may by special order direct supervision by the board.
(b) The board shall make pre-sentence investigations, when requested to do so by the court.
(c) Any county which provides additional probation staff for presentence investigations and for improved probation supervision and program, shall receive a grant-in-aid from the Commonwealth through the board for the additional cost incurred thereby but only to the extent that the additional staff and program meet the qualifications and standards established by the board. The board shall establish rules and regulations for the allocation of funds available for such grants-in-aid.
(d) The board shall provide in-service training for personnel of county probation offices when requested to do so by the court having jurisdiction of the probation office. 1941, Aug. 6, P.L. 861, § 17.1, added 1965, Dec. 27, P.L. 1230, § 9
61 P.S. § 331.17a (Emphasis added).

Additionally, we must examine the following general statute which governs revocation of probation:

§ 9771. Modification or revocation of order of probation
(a) General rule. — The court may at any time terminate continued supervision or lessen or increase the conditions upon which an order of probation has been imposed.
(b) Revocation. — The court may revoke an order of probation upon proof of the violation of specified conditions of the probation. Upon revocation the sentencing alternatives available to the court shall be the same as were available at the time of initial sentencing, due consideration being given to the time spent serving the order of probation.
(c) Limitation on sentence of total confinement.—

The court shall not impose a sentence of total confinement upon revocation unless it finds that:

(1) the defendant has been convicted of another crime; or
(2) the conduct of the defendant indicates that it is likely that he will commit another crime if he is not imprisoned; or
(3) such a sentence is essential to vindicate the authority of the court.
(d) Hearing required. — There shall be no revocation or increase of conditions of sentence under this section except after a hearing at which the court shall consider the record of the sentencing proceeding together with evidence of the conduct of the defendant while on probation. Probation may be eliminated or the term decreased without a hearing.
1974, Dec. 30, P.L. 1052, No. 345, § 1, effective in 90 days. As amended 1980, Oct. 5, P.L. 693, No. 142, § 401(a), effective in 60 days. 42 Pa.C.S.A. § 9771.

See also Pa.Crim.P. 1409 (“Whenever a defendant has been placed on probation or parole, the judge shall not revoke such probation or parole as allowed by law unless there has been a hearing ... ”)

Moreover, our United States Supreme Court has held that a two step procedure is required before a probation is revoked:

“[A] parolee is entitled to two hearings, one a preliminary hearing at the time of his arrest and detention to determine whether there is probable cause to believe that he has committed a violation of his parole, and the other a somewhat more comprehensive hearing prior to the making of a final revocation decision.” [Gagnon v. Scarpelli] 411 U.S. [778] at 781-782, 93 S.Ct. [1756] at 1759 [36 L.Ed.2d 656]. See also Commonwealth v. Henderson, 234 Pa.Super. 498, 340 A.2d 483 (1975); Commonwealth v. Davis, 234 Pa.Super. 31, 336 A.2d 616 (1975); Commonwealth v. Alexander, 232 Pa.Super. 57, 331 A.2d 836 (1974). The preliminary or Gagnon / hearing is designed to determine whether there is probable cause to believe that the probationer has violated the terms of his probation. The actual revocation, or Gagnon II, hearing is more complete, and consequently affords the probationer additional due process safeguards, including inter alia, “the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation) ...” Gagnon v. Scarpelli, supra [411 U.S.], at 786, 93 S.Ct. at 1762; Morrissey v. Brewer, supra [408 U.S.], at 489, 92 S.Ct. 2593.
It is constitutionally permissible to hold the probation revocation hearing after the arrest, but prior to the trial, on the charge which is the probation violation. Commonwealth v. Kates, 452 Pa. 102, 305 A.2d 701 (1973). In such a situation, a probationer must.be afforded two hearings, unless he has received a preliminary hearing in the Court of Common Pleas. We held in Commonwealth v. Davis, supra, that the purpose of the Gagnon I hearing is served by a conviction in Municipal Court or Common Pleas, or by a preliminary hearing in the Court of Common Pleas.

Commonwealth v. Ball, 235 Pa.Super. 581, 344 A.2d 675, 677 (1975) later appealed, 242 Pa.Super. 379, 363 A.2d 1322 (1976). Accord Commonwealth v. Maye, 270 Pa.Super. 406, 410, 411 A.2d 783, 785 (1979).

In the instant case, it is undisputed that a preliminary hearing was held in which the hearing court determined that appellant should be bound over for trial on narcotics charges. However, appellant’s contention is that the hearing court was without authority to schedule a Gagnon II hearing sua sponte because the recommendation of the appellant’s probation officer was that no revocation proceedings should be initiated. We are unable to agree that the trial court was without jurisdiction.

The case of Commonwealth v. Kates, 452 Pa. 102, 305 A.2d 701 (1973) provides insight into this issue. In Kates, a consolidated appeal, one of the defendants, Daisy Kates, was tried and convicted of aggravated assault and battery and a weapons offense. Kates was placed on three years probation on the charge of aggravated assault and battery, and sentence was suspended on the weapons offense. Subsequently, Daisy Kates was arrested, and a probation revocation hearing was conducted. The hearing court concluded that, based primarily on the basis of an incriminating statement attributed to Kates, Kates had commited a homicide. As a result, the hearing court revoked probation and imposed a term of imprisonment.

After the imposition of sentence, a motion to suppress Kates’ statement was granted. No appeal was taken from that ruling, and eventually Kates was found not guilty of homicide.

Our Supreme Court affirmed the judgment of sentence and held that “there is no statutory restriction in this State that would prevent the court from holding a hearing where the alleged violation is the commission of an offense during the probationary period prior to the trial for the subsequent offense.” Id., 452 Pa. Ill, 305 A.2d at 706. In its discussion, our Supreme Court analyzed the applicable probation revocation statutes and said:

The Act of 1941 was concerned with the establishment of the Pennsylvania Board of Parole. Section 25 [61 P.S. § 331.25 set forth infra at pg. 3] allowed our courts to specially order probations to be under the supervision of the board. The reason for section 25 allowing probation to the more serious offender was the legislative confidence in the supervision that would be exercised by the new board that the Act of 1941 had established as opposed to the supervision that would be received by those placed under the various county probation departments as provided by the Act of 1911.
Since the Board was not given authority for either determining a violation or revoking probation for those placed under their supervision under section 25 there was no reason for the Act of 1941 to mention this function and it in fact did not. We disagree with the trial judge who concluded that since the Act of 1941 did not provide for revocation that there was no statutory provision for revocation of a probation imposed under section 25. As has been stated before, in drafting the Act of 1941 the legislature was concerned with the powers and duties of the Board and only referred to probation because it wished to provide the court with the election to place the supervision within the control of the Board. However, there being no change intended in the power to revoke probation where a violation had occurred, there was no need for additional legislation and the power remained as provided by the Act of 1911. [19 P.S. § 1055 ] We therefore hold that section Ip of the Act of 1911 controls revocations whether the probation was entered under the authority of the Act of 1911 or the Act of 19141 Section 4 provides:
“Where a person placed on probation, as aforesaid, shall violate the terms of his or her probation, he or she shall be subject to arrest in the same manner as in the case of an escaped convict; and shall be brought before the court which released him or her on probation, which court may thereupon pronounce upon such defendant such sentence as may be prescribed by law, to begin at such time as the court may direct.”
From this review of the applicable statutes it is clear that there is no statutory restriction in this State that would prevent the court from holding a hearing where the alleged violation is the commission of an offense during the probationary period prior to the trial for the subsequent offense.
McClellan was placed under the supervision of the Pennsylvania Board of Parole pursuant to the Act of 1941.

Id. 452 Pa. at 111, 305 A.2d at 706 (emphasis added) (footnote added). See generally 37 Pa.Code § 61.1 et seq.

The logical implication of the Supreme Court’s holding in Kates is that there is no statutory authority which prevents the action of the trial court in this case because the court was notified of appellant’s arrest on other drug charges. The reason for our holding today is consistent with the concerns which our Supreme Court expressed in Kates when the Court stated the following:

“the basic objective of probation is to provide a means to achieve rehabilitation without resorting to incarceration. When it becomes apparent that the probationary order is not serving this desired end the court’s discretion to impose a more appropriate sanction should not be fettered. Initially, when the court decides to impose a probation order it is only after first balancing the interest of society in protecting against possible future criminal behavior of the individual with the benefit he would receive by remaining free from prison. Certainly, society has the right to expect a prompt hearing when the probationer has allegedly engaged in a course of criminal activity.”

Id., 452 Pa. at 115, 305 A.2d at 708.

Although in the instant case, the revocation hearing was scheduled after the trial court had ordered the evidence suppressed, we recognize that the probation revocation proceeding “is a narrow inquiry; the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.” Id., 452 Pa. at 118, 305 A.2d at 709 (quoting Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484, 499 (1972)). Accordingly, the hearing court did not err in conducting the probation revocation proceeding notwithstanding the granting of the motion to suppress.

Appellant also argues that his revocation hearing was not held in a timely fashion because the hearing was held six months after appellant was arrested. In the instant case, appellant was bound over for court on August 5, 1982. The hearing judge scheduled the Gagnon II hearing on January 7,1983 for January 26, 1983, which was three days after the court ordered the evidence suppressed.

In examining the reasonableness of the delay, three factors should be considered. They are (1) the length of the delay; (2) the reasons for the delay; and (3) the prejudice to the defendant as a result of the delay. Commonwealth v. Nance, 290 Pa.Super. 312, 434 A.2d 769, 772 (1981). Our Court has stated that the “relevant period is that between the conviction ... and the revocation hearing.” Commonwealth v. Reed, 277 Pa.Super. 94, 419 A.2d 677 (1980); see also Pa.Crim.P. 1409 (a hearing shall be “held as speedily as possible” by the judge).

In this case, there was no delay from the date of conviction to the date of revocation. Hence, appellant is unable to argue that a delay has occurred. The record shows that the probation revocation hearing was scheduled three days after the trial court granted appellant’s motion to suppress. Under these circumstances, appellant is not entitled to relief.

With respect to the other issues raised, the trial court adequately discussed these issues and properly denied appellant relief. Thus, we need not elaborate.

Judgment of sentence is affirmed.

       See sections 17 and 26 of the Act of 1941 which also pertain to supervision by the board.

       Act of June 19, 1911, P.L. 1055, § 3, as amended, June 21, 1919, P.L. 569, § 1, 19 P.S. § 1053.

       Act of June 19, 1911, P.L. 1055, § 4, 19 P.S. § 1055.

       The record reveals that the probations for petitioners Kates and Allen were under the Act of 1911. The probation of petitioner

      . 19 P.S. § 1055, which was the predecessor to 42 Pa.C.S.A. § 9771 ' provided as follows:
      § 1055. Violation of probation; arrest and sentence
      Whenever a person placed on probation, as aforesaid, shall violate the terms of his or her probation, he or she shall be subject to arrest in the same manner as in the case of an escaped convict; and shall be brought before the court which released him or her on probation, which0 court may thereupon pronounce upon such defendant such sentence as may be prescribed by law, to begin at such time as the court may direct. 1911, June 19, P.L. 1055, § 4. 19 P.S. § 1055.

      . We also note that a legal distinction has been made between probation and state parole:
      “Among the distinctions between probation and state parole is that the trial judge generally also decides the probation violation.” Nickens v. Commonwealth of Pennsylvania Board of Probation & Parole, 93 Pa.Cmwlth. 313, 318 n. 9, 502 A.2d 277, 279 n. 9 (1985).
      However, parole revocation proceedings "are civil administrative hearings.” Id.


author: HESTER, Judge:

text:
    508 A.2d 1261
    Della R. BILER v. John D. BILER, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued March 18, 1986.
    Filed May 6, 1986.

      Nancy D. Eddy, Uniontown, for appellant.
    James N. Fitzsimmons, Jr., Uniontown, for appellee.
    Before BROSKY, ROWLEY and HESTER, JJ.
   HESTER, Judge:

This is an' appeal from an order awarding support to wife-appellee in the amount of $400 per month. Appellant argues that he and his wife are not separated within the meaning of the support statute, 48 P.S. § 131, for they continue to reside in the marital residence. He further contends that, irrespective of the fact that if the parties are separated, he continued to provide suitable maintenance for his wife so that the court erred in entering a support order. We hold that the parties are indeed separated though they live under the same roof, and that the support order was within the discretion of the trial court. We therefore affirm.

The parties have been married for more than thirty-two years. In July, 1984, appellant struck appellee, knocking her to the floor. As a result, she went to the hospital, and shortly thereafter filed for divorce. Both parties remained in the marital residence, but discontinued cohabiting and, indeed, have not spoken to each other since July, 1984. They communicate by leaving notes in appropriate locations within the dwelling. They share only limited common areas of the house such as the kitchen.

Following the institution of the divorce action by appellee, appellant stopped relying on appellee to manage the family budget. He paid all normal household expenses. From his net monthly income of $2,300, he gave appellee $200 for her personal expenses.

Appellee then instituted an action for support. Following a hearing, the trial court ordered appellant to pay appellee $400 per month, and to continue making mortgage payments, to pay the expenses of maintaining the marital residence and to pay appellee’s reasonable medical and dental expenses.

This appeal from the support order is based on two allegations of error: first, that the parties are not separated, as required by the support law, while they live together; and second, if the arrangement constitutes a separation, the court erred in finding that appellant failed to provide suitable maintenance for his wife.

The trial court, in concluding that the parties were separated for purposes of the support law, relied on Powelson v. Powelson, 277 Pa.Super. 220, 419 A.2d 741 (1980), finding that the parties herein were situated similarly to those in Powelson. We agree. This court, in a recent interpretation of the phrase “separate and apart” in section 201(d) of the Divorce Code, 23 Pa.S. § 201(d), stated:

Thus, the gravamen of the phrase “separate and apart” becomes the existence of separate lives not separate roofs____ This position follows the trend of Pennsylvania case law in which a common residence is not a bar to showing that the parties live separate and apart in order to establish entitlement to support. Wechsler v. Wechsler, 242 Pa.Super. 356, 363 A.2d 1307 (1976); Commonwealth ex rel. DiPadova v. DiPadova, 223 Pa.Super. 408, 302 A.2d 510 (1973).

Flynn v. Flynn, 341 Pa.Super. 76, 81, 491 A.2d 156, 159 (1985). This reasoning applies equally to the term “separate” in the support law, 48 P.S. § 131. As the trial court stated, “In reality the parties could be no more alienated if they lived miles apart.” Slip op., September 24, 1985, at 3. Their living arrangement thus constitutes a separation.

The second issue is whether the trial court correctly found that appellant neglected to provide suitable maintenance by giving her $200 a month for her expenses. When we review a support order, we follow the abuse of discretion standard set forth in Melzer v. Witsberger, 505 Pa. 462, 475 n. 8, 480 A.2d 991, 997 n. 8 (1984), quoting Costello v. LeNoir, 462 Pa. 36, 40-41, 337 A.2d 866, 868 (1975): an order of support will not be disturbed unless there is a clear abuse of discretion. The record reflects no such abuse.

The trial court relied on ample evidence to support its decision. Although appellant purchased food for appellee in addition to paying joint household expenses, appellee’s medical condition required a restricted diet. Notes of testimony, July 22, 1985 (N.T.), at 59-60, 70. As a result, appellee could not consume the food provided by appellant. N.T. at 62-63, 70. Appellee also had necessary automobile expenses which were not paid by appellant. N.T. at 64, 71. Appellee had other reasonable personal expenses, such as clothing, entertainment, toiletries and dry cleaning. N.T. at 70-71. We therefore hold that the support order entered on August 12, 1985, was not an abuse of discretion by the trial court.

Order affirmed.

      . 48 P.S. § 131 states:
      If any man shall separate himself from his wife or children without reasonable cause, and, being of sufficient ability, shall neglect or refuse to provide suitable maintenance for his said wife or children, action may be brought, at law or in equity, against such husband for maintenance of said wife or children.


author: BROSKY, Judge:

text:
    508 A.2d 1263
    Leon D. TOURVILLE, Appellant v. INTER-OCEAN INSURANCE COMPANY and James Colwell.
    Superior Court of Pennsylvania.
    Argued March 20, 1985.
    Filed March 4, 1986.
    Reargument Denied May 18, 1986.

      John T. Tierney, III, Pittsburgh, for appellant.
    Alan H. Perer, Pittsburgh, for appellees.
    Before BROSKY, ROWLEY and FEENEY, JJ.

       Honorable John M. Feeney of the Court of Common Pleas of Allegheny County, Pennsylvania, sat by designation but did not participate in the decision or disposition of this case.

   BROSKY, Judge:

This appeal is from summary judgment against plaintiff in a civil suit for wrongful discharge. Appellant contends that there were sufficient factual allegations to go to trial on the issue of wrongful discharge. We disagree and, accordingly, affirm.

Facts

Appellant was an insurance broker for appellee before he fell ill. During his hospitalization an employee of appellee came to his house and collected his business records; justifying this to his wife with the statement that he was dying. Appellant did not fulfill this prophecy, but returned home. His former clients were then told that by the same employee he had beat his wife, had a nervous breakdown and kept dishonest accounts. He denies his demise, his brutality and the dishonesty attributed to him. The trial court granted summary judgment for appellee based on the legal conclusion that appellant had not alleged a violation of public policy necessary to support a wrongful discharge action.

Wrongful Discharge

The seminal wrongful discharge case in Pennsylvania is Geary v. U.S. Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974). Writing for a majority of the Court, Justice Pomeroy announced a cause of action for wrongful discharge for at-will employees. Under Geary, one of two circumstances have to be met: the discharge must be made with the specific intent to harm, or it must be contrary to public policy. We agree with the trial court that appellant’s pleadings do not support a discharge violative of public policy. It remains to be seen, however, whether those pleadings establish the basis for going on to trial on a theory of discharge motivated by a specific intent to harm.

Specific Intent to Harm

The post-Geary development of the law has focused on discharges violative of public policy. This has also been the national trend. Left undefined by subsequent cases has been the specific intent to harm type of discharge, which we treat today. We are not, however, without ample guidance in this definitional endeavour; for Geary made it clear that the specific intent to harm type of wrongful discharge was firmly grounded in other types of actions based on malice of iong standing in Pennsylvania’s common law. With these sources to guide us, we can identify two ways that a specific intent to harm discharge can be successfully alleged.

“Disinterested Malevolence”

Geary gave the specific intent to harm type of wrongful discharge some form by referring to a number of cases. Principal among these was a case by Justice Holmes, American Bank & Trust Co. v. Federal Reserve Bank, 256 U.S. 350, 41 S.Ct. 499, 65 L.Ed. 983 (1921). Two phrases from that case, quoted in Geary, provide the framework we need for our analysis.

The first of these phrases is “disinterested malevolence.” By this we take it to mean that there was no proper interest involved in the malevolent act; that there was no reason for the action (other than an atavistic desire to hurt another). This, certainly, is something that the trial court can look for in the pleadings or in the evidence at trial to test the legal sufficiency of a case. If there is not present a cause, which in every day, civilized life would serve as the basis for the action, then the malevolence surely is pure, unadulterated and disinterested.

Applying this standard to the instant case, we find that appellant’s cause of action fails. Appellee contended that appellant was discharged simply because he had fallen ill and could not perform his duties. Appellant did not gainsay the fact of his illness or of his temporary inability to do his job. This could, without any doubt, provide sufficient reason for an employer to discharge an employee, so that the presence of a malicious desire to harm cannot be inferred from the absence of any reason.

“Ulterior Purpose”

The other phrase from Holmes’ American Bank that Geary highlighted was “ulterior purpose.” This phrase finds definition in another case cited in Geary, Wheatley v. Baugh, 25 Pa. 528 (1855), and in the abuse of process cases, the progenitor of which is also cited in Geary. The thrust of these cases is that a harmful action is done with sufficient reason (unlike our first type), but it is done with an ulterior motive — to harm the other party. How, then, would a trial court find this to be present? Given a sufficiency of plausible justification, how would this reveal itself?

The answer, we think, is rather obvious: that what is harmfully done is beyond the necessity of the justified harmful act. The quality of maliciousness could be discovered by the lack of proportionality or the impropriety or viciousness with which a thing is done. Is that, then, present under the facts as alleged here? Before that can be answered, it must first be determined what facts are relevant.

To this point we have faithfully followed Geary and the cases cited by Geary. We would continue to do so, but at this juncture they no longer guide us. The central question here is what acts can be looked at to reveal these undesirable qualities. Can we only look to the act of discharge itself; or can we go beyond that to examine the acts committed by the employer before and after the actual discharge?

We conclude that the broader scope is the proper one. The actual act of saying to someone, “You’re fired.” could virtually never, in and of itself, reveal an intent to harm. On the other hand, we do think that the specific intent to harm by firing could, in all fairness, be revealed by the surrounding circumstances.

Given that scope, appellant has not alleged sufficient facts to support a wrongful discharge cause of action. See Farbo v. Caskey, 272 Pa. 573, 116 A. 543 (1922).

Judgment affirmed.

      . Geary, 456 Pa. at 178-9, 319 A.2d at 177-8.

      . Geary, 456 Pa. at 181-3, 319 A.2d at 178-80.
      Whether one accepts this two alternative elements design (which Geary seems to set out) or follows Judge Spaeth's interpretation that specific intent to harm is merely an example of a public policy violation, Yaindl v. Ingersoll-Rand Co., 281 Pa.Super 560, 573, n. 5, 422 A.2d 611, 618, n. 5 (1980), matters little. In either event, a specific intent to harm discharge supports a wrongful discharge cause of action in Pennsylvania.

      . This may, indeed, explain the trial court's attention only to that element.

      . Of course, it is not sufficient that the term simply be inserted into a pleading; the alleged facts must support it. But exactly what those facts have to establish is the question before us now.

      . Initially, it must be recognized, as was done in Geary, that the commission of the harmful act of discharging an employee cannot be sufficient to establish, at law, a wrongful discharge. For in any discharge there will be a foreseeable harm to the employee. Rather, there must be a specific intent to harm the employee. How are we, then, to judge if that specific intent was present?

      . See Cisco v. United Parcel Services, Inc., 328 Pa.Super. 300, 308, 476 A.2d 1340, 1344 (1984). "We have concluded that a plausible and legitimate reason for appellant’s discharge existed ...”

      . A Pennsylvania case involving another malicious cause of action— malicious prosecution — follows just this line of reasoning. "Malice,” it says, "may be inferred from want of probable cause.” Hugee v. Pa.R.Co., 376 Pa. 286, 291, 101 A.2d 740, 743 (1954) (emphasis in original).

      . We do not applaud such a rationale for discharge. In the best of all possible worlds one would, perhaps, see employers willing to wait for an employee’s recovery. But the law does not require men to be as good as they might be — and we will not hold an employer to such a standard of decency.

      . Sommer v. Wilt, 4 S & R 19 (1818).

      . That broader scope must not become too broad. It should be limited to those acts of the employer which occurred shortly before, contemporaneous with, and shortly after the discharge itself.


author: WATKINS, Senior Judge:

text:
    509 A.2d 332
    Gloria ROSS, Appellant, v. Robert BOWLBY.
    Superior Court of Pennsylvania.
    Submitted Nov. 25, 1985.
    Filed April 21, 1986.
    James M. Jacobs, Assistant District Attorney, Somerset, for appellant.

      James A. Kudasik, Somerset, for appellee.
    Before CIRILLO, BECK and WATKINS, JJ.
   WATKINS, Senior Judge:

This is an appeal from an Order entered June 20, 1985, in the Court of Common Pleas of Somerset County sustaining appellee, Robert Bowlby’s preliminary objections and confirming a Maryland judgment dismissing the case.

Leslie, J. Ross was born June 11, 1971, to appellant, Gloria Ross. Appellant initially received welfare payments for the support of her daugher from 1971 to 1978. She later went “off” welfare and obtained employment.

On May 6, 1976, appellant filed a support action against the appellee, Robert Bowlby. This action was filed at the request of the Pennsylvania Department of Welfare and was transferred by a Revised Uniform Reciprocal Support Act Petition, RURESA, 42 Pa.C.S.P. § 6741, et seq. to Prince Georges County, Maryland, where appellee was thought to be living. The action was transferred to Howard County, Maryland, on March 9, 1977. The Howard County Court issued an Order upon the appellee on May 31, 1977 to show cause why he should not be required to support the child. Appellee filed an answer averring that he was not the father of the child, had never acknowledged paternity nor contributed to the maintenance of the child. He also filed for summary judgment based on Maryland’s two-year Statute of Limitations in paternity actions. Maryland Code, Article 16, § 66(e). On October 5, 1977, the Howard County Maryland Court granted summary judgment for appellee, Robert Bowlby.

Subsequently, the Maryland Court of Appeals held that the Maryland two-year paternity statute of limitations set forth in Article 16, Section 66 of the Maryland Code unconstitutional on August 4, 1983. See Frick v. Maldonado, 296 Md. 304, 462 A.2d 1206 (1983).

Appellee returned to Somerset County in 1979. Appellant again went “on” welfare in 1984 and the Pennsylvania Department of Welfare again had her institute action for support against the appellee. This action was filed in the Somerset County Domestic Relations Department on September 24, 1984.

Appellee again denied paternity and filed preliminary objections to the paternity complaint on November 15, 1984. In these objections he contended that the matter was barred by the res judicata effect of the Maryland judgment.

The court below heard argument on the preliminary objections on December 13, 1984. In an opinion dated February 5, 1985, the lower court held that the Maryland decision is res judicata whether or not it was decided on the merits and that a change in the law changing the basis for the decision in the case does not merit a reversal of the judgment in the case. The court continued the hearing on the preliminary objections and scheduled a hearing for April 10, 1985, to allow both parties to present evidence as to their respective equities.

In an Order dated June 20, 1985, the court below sustained the defendant-appellee’s preliminary objections and confirmed the Maryland judgment dismissing the case. This appeal followed.

Appellant presents the following questions for our consideration:

1. Did the court below err in holding that the Maryland judgment of dismissal based on Maryland’s two year statute of limitations was res judicata?
2. Assuming arguendo that the court below properly gave the Maryland court’s decision res judicata effect, did the court below err in not opening judgment based on the equitable grounds raised by appellant?
3. Did the court below err in giving res judicata effect to a judgment based on an unconstitutional statute?
4. Did the court below err in failing to apply 42 Pa.C. S.A. § 5533(b) to the instant case?

The doctrine of res judicata applies to bar subsequent actions where four conditions occur:

1. There is an identity of the thing sued upon;
2. There is an identity of the cause of action;
3. There is an identity between the persons or parties to the action;
4. There is an identity of the quality or capacity of the parties suing or being sued.

Where these four conditions are met, then a final judgment rendered on the merit by a court of competent jurisdiction is conclusive to the rights of the parties. See Lebeau v. Lebeau, 258 Pa.Superior Ct. 519, 525, 393 A.2d 480, 482 (1978).

By holding that the decision of the Maryland Court based on Maryland’s two year statute of limitations is entitled to res judicata effect, the court below is finding as a matter of law that these requisites have been met.

The res judicata effect of decisions rendered on the basis of Statutes of Limitations was dealt with in Commonwealth ex rel. Johnson v. King, 297 Pa.Superior Ct. 431, 444 A.2d 108 (1982). In Johnson this Court held that paternity actions filed within six (6) years of the child’s birth were not barred by a dismissal based on the two year statute of limitations in effect when the paternity actions were originally filed. The six year Statute of Limitations set out at 42 Pa.C.S.A. 6704, was to be applied to cases arising before the Act’s date of passage, April 28, 1978.

The Johnson court further observed that “Because a final determination of paternity and/or support was never made, due to the dismissal of both actions, there is no res judicata or collateral estoppel effect ...”

In the case sub judice, like Johnson, there has been no final determination of paternity. The Maryland court's decision to dismiss was based on the Maryland Statute of Limitations. There has been no final judgment rendered on the merits as is required by Lebeau, supra, to invoke the doctrine of res judicata.

Thus, the court below erred when it held that the decision of the Howard County, Maryland Court should be given res judicata effect.

Considering our disposition of this appeal, we do not reach the merits of appellant’s remaining claims.

Order reversed and the case is remanded for further proceedings consistent with this opinion. Jurisdiction relinquished.


text:
    509 A.2d 334
    Robyn LITTLEJOHN, Appellant, v. KEYSTONE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Dec. 17, 1985.
    Filed April 25, 1986.
    Reargument Denied June 5, 1986.

      Allen L. Feingold, Philadelphia, for appellant.
    Michael W. McCarrin, Philadelphia, for appellee.
    Before CIRILLO, MONTEMURO and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the order of the Court of Common Pleas of Philadelphia County, later reduced to judgment, denying a motion to vacate an arbitration award entered against the plaintiff, Robyn Littlejohn, and, in turn, confirming the award. We affirm.

On the 20th of June, 1977, Ms. Littlejohn was awaiting the change of a red light at an intersection when the vehicle she occupied was struck by one driven by a Carl Stewart. It was Ms. Littlejohn’s belief that a third vehicle hit the rear of the Stewart automobile and caused it to make contact with her vehicle. The identity of this alleged third party was never discovered, nor, in fact, was it ever proven that such a third vehicle ever existed.

In February of 1980, Ms. Littlejohn instituted a complaint in assumpsit and trespass against her carrier, Keystone Insurance Company, for failing to honor her claim for uninsured motorist benefits arising out of the actions of the purported third motorist who left the scene of the accident. Alternatively, in November of 1981, Ms. Littlejohn also filed a petition seeking the appointment of a neutral arbitrator to expedite the resolution of the matter, as provided for in the policy of insurance.

Keystone filed an answer and new matter, accompanied by a memorandum of law, arguing that the plaintiff’s election to file suit in Common Pleas Court precluded her from seeking the identical relief through arbitration. If the court did not agree, then Keystone asked that all judicial proceedings be stayed pursuant to 42 Pa.C.S.A. § 7304(d).

All proceedings in Common Pleas Court were ordered stayed and the parties were directed to commence arbitration. In accordance therewith, a 3-member panel was selected and heard evidence in September of 1982, the consequence of which was the entry of an award, with one arbitrator dissenting, that read: “Find in favor of defendant and against plaintiff.” Exceptions and a motion to vacate the award were filed and denied by the court. This appeal followed.

Two of the four issues raised by the plaintiff were adequately addressed by the court below. The third question, labelled Roman numeral IV in the plaintiffs appellate brief, does not appear in the Exceptions and Motion to Vacate filed with the court below. Therefore, we hold this matter waived. Cf. Commercial Credit Corp. v. Cacciatiore, 343 Pa.Super. 430, 495 A.2d 540 (1985). Even if, for the sake of argument, we were to hold the issue preserved, our determination would not be altered since it is intertwined with the “settlement” disclosure issue, a subject which we have found to be meritless. See discussion infra. Thus, we will center our discussion on an issue which appears to have received little consideration by the appellate courts. The plaintiff frames it as follows:

II. Whether the lower Court erred when it dismissed plaintiffs Petition to Vacate the Award of Arbitrators and confirmed the said Award since defendant improperly informed the arbitrators of the settlement recovered by plaintiff in a separate action against a third party driver.

We find no fault with the plaintiffs general proposition that the law is not hesitant to reverse a verdict where the trier-of-fact has been exposed to information that a plaintiff has received compensation from a source other than the defendant, especially where the plaintiff seeks the recoupment of identical damages in a subsequent suit except this time it is from the defendant. See, e.g., Moidel v. Peoples Natural Gas Co., 397 Pa. 212, 154 A.2d 399 (1959) (Collateral source rule in the context of a trial); Kagarise v. Shover, 218 Pa.Super. 287, 275 A.2d 855 (1971) (semble).

However, before delving into the merits of the plaintiffs argument, we find it prudent to point out some preliminary matters as an aid to understanding the ultimate ruling made.

First, we must decide whether the arbitration proceedings were conducted under common law or under the procedure outlined in the Arbitration Act of April 25, 1927, P.L. 381, 5 P.S. § 161 et seq., repealed by the Judiciary Act Repealer Act of October 5, 1980, P.L. 693, No. 142, § 501(c), effective in 60 days. For purposes of appellate review, this dichotomy is vital. See generally Wingate Construction Co. v. Schweizer Dipple, Inc., 419 Pa. 74, 213 A.2d 275 (1965) (Arbitration Act of 1927 compared to common law arbitration); Bromley v. Erie Insurance Group, 322 Pa.Super. 542, 469 A.2d 1124 (1983) (Uniform Arbitration Act of 1980 compared to common law arbitration).

The distinction to be made is that in the case of statutory arbitration a court “shall” modify or correct an award that is “contrary to law”, just as if it were rendered by a jury and vulnerable to change because of the impropriety. See 42 Pa.C.S.A. § 7302(d)(2). On the other hand, judicial review of common law arbitration awards is narrowly circumscribed. As our Supreme Court has oft-stated:

If the appeal is from a common law award, Appellant, to succeed, must show by clear, precise and indubitable evidence that he was denied a hearing, or that there was fraud, misconduct, corruption or some other irregularity of this nature on the part of the arbitrator which caused him to render an unjust, inequitable and unconscionable award, the arbitrator being the final judge of both law and fact, his award not being subject to disturbance for a mistake of either.

Harwitz v. Selas Corporation of America, 406 Pa. 539, 542, 178 A.2d 617, 619 (1962). Accord Greenspan v. United Services Auto. Association, 324 Pa.Super. 315, 471 A.2d 856 (1984), allocatur denied July 20, 1984.

Instantly, the record reveals that the parties conducted their dispute under the auspices of statutory arbitration. John A. Robbins Co. v. Airportels, Inc., 418 Pa. 257, 210 A.2d 896 (1965).

We observe that the parties’ reference to the Act of 1927, as governing the review of the issues argued below, is correct, even though it was repealed by the time the 1982 arbitration hearing was conducted. See Pasternak v. State Farm Mutual Automobile Insurance Co., 350 Pa.Super. 448, 504 A.2d 925 (1986) (Because the cause of action arose prior to repeal of the Act of 1927, the fact that arbitration held after its repeal, did not render it ineffectual). Even if the case were otherwise, our determination would not be changed under the present statute on the matter. See The Uniform Arbitration Act of October 5, 1980, P.L. 693, No. 142, 42 Pa.C.S.A. § 7301 et seq.

To explicate, as succintly as possible, we start by noting that this Court recently held that the “collateral source rule” was modified by the then existing No-Fault Act to the extent that a trier-of-fact could be informed of the plaintiff’s receipt of benefits as a result of an automobile accident which were in addition to those for which he had instituted suit. See Holland v. Zelnick, 329 Pa.Super. 469, 478 A.2d 885 (1984). Since the No-Fault Act was in effect at the time of the arbitration under scrutiny here, we see no reason why Holland should not be looked to for guidance.

Also, we observe that the discussion of the “settlement” was broached by counsel for the plaintiff during defense counsel’s opening remarks to the arbitrators. (See Hearing at pages 4-5) This renders untenable the plaintiff’s “error of law” assertion. See Collins v. Cement Express, Inc., 301 Pa.Super. 319, 447 A.2d 987 (1982).

Lastly, because the plaintiff entered into a settlement agreement with Stewart “without the written consent of the insurer”, she would be precluded from securing compensation for her bodily injuries sustained as a result of the purported third-party uninsured motorist. See Uninsured Motorist Act, 40 P.S. § 2000(e)(2); Cotton v. Insurance Co. of North America, 344 Pa.Super. 602, 497 A.2d 254 (1985).

It must be remembered that the purpose of opting for arbitration vis-a-vis a trial is the “quick and easy mode of obtaining justice” afforded by the arbitration form of dispute-resolution. See Sudders v. United National Insurance Co., 217 Pa.Super. 196, 269 A.2d 370 (1970); Application of Westinghouse Air Brake, 166 Pa.Super. 91, 70 A.2d 681 (1950). To permit the aggrieved party to use the process now as merely a step to further appellate review would be to emasculate the objectives of the arbitration scheme. We will not be a party to such maneuvering in the face of a record unblemished by procedural or substantive error.

We affirm the actions of the court below.

      . See The Act of October 5, 1980, P.L. 693, No. 142, § 501(a), 42 Pa.C.S.A. § 7314(d).

      . See Plaintiff’s Memorandum of Law attached to Exceptions and Motion To Vacate Award at pages 9-10; Defendant’s Answer to Plaintiff’s Exceptions and Motion To Vacate at points 14 and 34; Defendant's Memorandum of Law attached to Petition to Confirm Arbitrators’ Award.

      . The Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.101 et seq., repealed by the Act of February 12, 1984, P.L. 26, No. 11, § 8(a), effective October 1, 1984.

      . Paragraph (2) of subsection (e) of Section 2000 reads:
      § 2000. Motorists uninsured, insurance protection
      ******
      (e) The coverage required by this section does not apply.
      ******
      (2) To bodily injury sustained by the insured with respect to which the insured or his representative shall, without the written consent of the insurer, make any settlement with or prosecute to judgment any action against any person who may be legally liable therefor.
      The Act of August 14, 1963, P.L. 909, § 1, as amended 1968, December 19, P.L. 1254, No. 397, § 1, effective January 1, 1969, 40 P.S. § 2000(e)(2).