author: BROSKY, Judge.

text:
    631 A.2d 650
    Robin WEIR v. Danny WEIR, Appellant.
    Superior Court of Pennsylvania.
    Argued June 23, 1993.
    Filed Sept. 3, 1993.

      Gloria V. Brown, Altoona, for appellant.
    Donald E. Speice, Public Defender, Hollidaysburg, for appellee.
    Before OLSZEWSKI, HOFFMAN and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from a protection from abuse order entered against appellant. The following issues are presented for our review: (1) whether this court can consider the merits of appellant’s allegations of error despite his failure to file post-trial motions; (2) whether the trial court’s failure to enter an adequate verdict excused appellant’s failure to file post-trial motions; (3) whether trial counsel was ineffective in failing to file post-trial motions on appellant’s behalf; (4) whether the trial court had subject matter jurisdiction over this action; (5) whether the evidence was sufficient to sustain the verdict; and (6) whether the trial court erred in permitting evidence of prior abuse to be introduced. For the reasons set forth below, we affirm.

We will briefly recount the relevant facts and history of this case before proceeding to consider the merits of appellant’s claims. Appellant, Danny Weir, and appellee, Robin Weir, were married in 1976. In the late evening hours of September 7, 1992, the Weirs were driving along mountainous back roads in the vicinity of Altoona, Pennsylvania. Mr. Weir was operating a van and Mrs. Weir was a passenger therein. The parties, who had been experiencing marital difficulties, started to argue. According to appellee, her husband drove the vehicle at an excessive rate of speed despite her protests to slow down. Appellant drove behind a sign and began to decelerate at which point appellee jumped out of the vehicle and began to run away. Appellant pursued appellee in the vehicle and eventually trapped her between the van and the concrete portion of a bridge. Appellant repeatedly told appellee to return to the vehicle. Appellee finally complied with appellant’s demands and got back into the vehicle. Appellant again began to drive at an excessive rate of speed.

Appellee and her children subsequently moved out of the marital residence and went to reside with appellee’s brother. On September 14, 1992, appellee filed a pro se protection from abuse petition against appellant. In response, the lower court entered a temporary order directing appellant to refrain from abusing or threatening to abuse appellee and scheduled a hearing on the petition. A hearing on the petition was held on October 21, 1992. The trial court entered an order granting appellee’s petition October 23, 1992. No post-trial motions were filed by either of the parties. Neither of the parties reduced the order to final judgment. Appellant thereafter instituted this appeal from the October 23rd order of court.

Although not addressed by either of the parties, we must first ascertain whether the order entered by the trial judge is properly appealable at this stage of the proceedings, since this determination necessarily affects our jurisdiction to entertain the issues raised. See Fried v. Fried, 509 Pa. 89, 91, 501 A.2d 211, 212 (1985); Flowers v. Flowers, 417 Pa.Super. 528, 530, 612 A.2d 1064, 1065 (1992). Questions relating to jurisdiction are not waived by the failure of the parties to raise them and may properly be raised by the court sua sponte. Fried v. Fried, 509 Pa. at 92, 501 A.2d at 212. In addressing this question, we must necessarily examine the practice and procedure to be followed in protection from abuse proceedings.

Protection from abuse actions are regulated by statute and the rules promulgated pursuant thereto. See generally, Protection From Abuse Act (“PFAA”), 23 Pa.C.S.A. § 6101- § 6117 and Pa.R.C.P., Rules 1901-1905, 42 Pa.C.S.A. Proceedings under the PFAA are to be conducted in accordance with applicable general rules. See 23 Pa.C.S.A. § 6117. The rules more specifically direct that the decision of the lower court shall be governed by Rule 1038(b) and (c) of the Pennsylvania Rules of Civil Procedure. Pa.R.C.P., Rule 1905(a), 42 Pa.C.S.A. Rule 1038 defines the practice and procedure to be followed in non-jury trials. Rule 1038(b) provides that the decision of the trial judge may consist only of general findings. Pa.R.C.P., Rule 1038(b), 42 Pa.C.S.A. This rule also permits the trial judge to include as part of the decision specific findings of fact and conclusions of law with appropriate discussion. See id. Rule 1038(c) allows the trial court to announce its decision either orally in open court or in a writing filed within seven (7) days after trial, unless the case is protracted or extraordinarily complex. Pa.R.C.P., Rule 1038(e), 42 Pa. C.S.A.

Post-trial practice in protection of abuse actions is governed by Rules 227.1-227.4. Pa.R.C.P., Rule 1905(b), 42 Pa.C.S.A. Pursuant to Rule 227.1, post-trial motions must be filed within ten (10) days after the filing of the decision in the case of a trial without jury. Pa.R.C.P., Rule 227.1(c)(2), 42 Pa.C.S.A. Following disposition of post-trial motions, or if no timely motion has been filed, the decision of the trial judge must then be entered as a final judgment, either by the trial court or upon praecipe of the parties. See Pa.R.C.P., Rules 227.1(a)(4) and 227.4(l)(b) and (2). See also Pa.R.A.P., Rule 301, 42 Pa.C.S.A. and Note thereto (discussing the reduction of an order to judgment as a prerequisite for appeal).

Application of the above provisions reveals that appellant has failed to comply with the procedural requisites by failing to have the trial court’s decision entered as a final judgment. However, this defect does not affect the validity of the appeal. Pa.R.A.P., Rule 903(a), 42 Pa.C.S.A. See also Melvin v. Melvin, 398 Pa.Super. 1, 13-14, 580 A.2d 811, 816 (1990) (where an appeal is improvidently taken prior to entry of final judgment, this court will ordinarily direct the appellant to praecipe for the entry of judgment and treat the notice of appeal as being filed on the date that judgment is entered); but see Schwartz v. Schwartz, 319 Pa.Super. 5, 6, 465 A.2d 1024, 1025 (1983) (quashing an appeal where the appellant failed to enter the order on the lower court docket). Moreover, our Supreme Court has indicated that in the interests of judicial economy, we may disregard a defect of this type and “regard as done that which ought to have been done.” See McCormick v. Northeastern Bank of Pennsylvania, 522 Pa. 251, 254 n. 1, 561 A.2d 328, 330 n. 1 (1989) (court considered the merits of an appeal despite the parties’ failure to reduce an order to judgment). We therefore conclude that appellant’s institution of this appeal prior to entry of a final judgment does not deprive us of jurisdiction.

We must next ascertain whether appellant has preserved any issues for appellate review. With regard to this question, we note that appellant has presented a challenge to the subject matter jurisdiction of the lower court. A court’s lack of subject matter jurisdiction is a non-waivable issue which may be raised by the parties at any stage of the proceedings and can be raised by the appellate courts sua sponte. See Fried v. Fried, supra; Andursky v. Andursky, 382 Pa.Super. 1, 3-4, 554 A.2d 571, 573 (1989) and Pa.R.C.P., Rule 1032(2), 42 Pa.C.S.A. Because lack of jurisdiction would render appellant’s remaining allegations moot, we will evaluate this question first.

The crux of appellant’s argument is that the trial court lacked jurisdiction to conduct a hearing because appellee’s petition failed to set forth an allegation of abuse as defined by the PFAA. The essence of this challenge is that the trial court should have summarily dismissed appellee’s petition for failure to set forth a prima facie allegation of abuse. We disagree with appellant’s reasoning.

The PFAA defines abuse as follows:

“Abuse.” The occurrence of one or more of the following acts between family or household members, sexual or intimate partners or persons who share biological parenthood:
(1) Attempting to cause or intentionally, knowingly or recklessly causing bodily injury, serious bodily injury, rape, spousal sexual assault or involuntary deviate sexual intercourse with or without a deadly weapon.
(2) Placing by physical menace another in fear of imminent serious bodily injury.
(3) The infliction of false imprisonment pursuant to 18 Pa.C.S. § 2903 (relating to false imprisonment).
(4) Physically or sexually abusing minor children, including such terms as defined in Chapter 63 (relating to child protective services).

23 Pa.C.S.A. § 6102(a)(l)-(4).

Appellee’s petition, which was filed pro se, consisted of a pre-printed form containing blank lines for the parties’ names, addresses, marital status, a description of the incident, and pertinent information pertaining to the parties’ children and financial status. See Petition for Protection Order and Leave to Proceed In Forma Pauperis, filed September 14, 1992. Paragraph 4 of the petition more specifically describes the abuse and appears as follows:

4. SINCE OR ABOUT Sept 7, 1992, RESPONDENT HAS ABUSED THE PETITIONER. THIS ABUSE CONSISTED OF THE FOLLOWING INCIDENTS: The incident occurred on Rt 36 (Catfish Ridge) Dan said I’ll show you your driving me crazy Then he started to drive real fast I jumped out of the van after I unhooked my seat belt without getting hurt, I started to run then he trapped me against the cement part of the bridge till I got back in the van. Then he took me threw back roads where I don’t even know he tried cutting curves at a high rate of speed enough to scare me. Then Regina MacDonald a friend of his talked to me on Sat 12,1992 at our pet shop she told me to leave him because he made the statement if he blacks out he couldn’t say what he might do to me.

Id. at paragraph 4.

Contrary to appellant’s interpretation, appellee’s petition clearly sets forth an allegation of abuse which falls within the statutory definition. Appellant’s conduct in driving at an excessive rate of speed over dark and winding mountain roads and in pinioning appellee against a concrete bridge abutment with a van certainly constituted an attempt to cause bodily injury or serious bodily injury to appellee. The conduct can also be viewed as placing appellee, by physical menace, in fear of sustaining imminent serious bodily injury. We therefore reject appellant’s claim that the petition failed to set forth a prima facie allegation of abuse and find that the trial court properly exercised subject matter jurisdiction over these proceedings.

We likewise decline to adopt appellant’s suggestion that a trial court lacks the authority to conduct a hearing on any PFAA petition which may not contain a prima facie allegation of abuse. Appellant’s arguments ignore the fact that PFAA petitions are often initiated pro se. To dismiss inartfully drafted petitions which may not, on their face, be couched in the precise definitional terms set forth in the statute would eviscerate the purpose and goals of the PFAA, which is to provide spouses, household members, intimate partners and children with immediate temporary protection from abuse. See Snyder v. Snyder, 429 Pa.Super. 494,-- -, 629 A.2d 977, 980-982 (1993), (indicating that in light of the purpose of the PFAA and the lack of specific pleading requirements for PFAA petitions, detailed allegations of abuse are not required as it would place an impractical burden on the petitioners, especially where the petition is filed pro se). Moreover, the PFAA provides that “[wjithin ten days of the filing of a petition under this chapter, a hearing shall be held before the court[.]” 23 Pa.C.S.A. § 6107(a) (emphasis added). The PFAA’s usage of the term “shall” has been construed as creating a mandatory duty to conduct a hearing on the merits of the petition. Heard v. Heard, 418 Pa.Super. 250, 257, 614 A.2d 255, 259 (1992). The trial court’s authority to conduct a hearing thus is not limited by the allegations contained in the petition.

Having found appellant’s jurisdictional challenge lacking in merit, we must now consider whether his remaining allegations of error have been waived. As indicated above, post-trial practice in PFAA proceedings is governed by Rules 227.1-227.4. See Rule 1905(b), supra. It is also well settled that issues not raised in the lower court are waived and cannot be raised for the first time on appeal. Pa.R.A.P., Rule 302(a), 42 Pa.C.S.A. See also Lucia v. Lucia, 318 Pa.Super. 569, 571, 465 A.2d 700, 701 (1983); Horvat v. Horvat, 303 Pa.Super. 406, 407, 449 A.2d 751, 752 (1982); Knisely v. Knisely, 295 Pa.Super. 240, 241-242, 441 A.2d 438, 439 (1982) (issues were waived on appeal where the appellant failed to file exceptions or post-trial motions to a protection from abuse order). While appellant acknowledges his failure to file post-trial motions in accordance with Rules 227.1 and 1905(b), he argues that we should nevertheless consider the merits of his claims because the omission was caused by trial counsel’s ineffectiveness and an error by the trial court. We are not persuaded by either of the reasons posited by appellant.

Appellant asserts that his failure to file post-trial motions was excused by the trial court’s failure to issue adequate findings of fact. Appellant cites to In re Estate of Dorone, 349 Pa.Super. 59, 502 A.2d 1271 (1985), affirmed, 517 Pa. 3, 534 A.2d 452 (1987) for support. Dorone involved the appointment of a guardian for an incompetent, the practice and procedure of which is to be conducted in accordance with the rules governing equity actions. See Orphans’ Court Rule 3.1, 20 Pa.C.S.A. and Pa.R.C.P., Rules 1501-1550, 42 Pa.C.S.A. Pursuant to the equity rules, a trial judge is required to make an adjudication after a hearing. See Rule 1517(a). The adjudication consists of (1) a statement of the issues; (2) a closely condensed chronological statement of all the facts which are necessary to determine the issues; (3) a discussion of the questions of law involved and the court’s conclusions of law; and (4) a decree nisi. See id. Under certain circumstances, a chancellor’s failure to make an adjudication in accordance with Rule 1517(a)’s mandate has excused a litigant’s failure to file post-trial motions to a decree nisi. See e.g., In re Estate of Dorone, 349 Pa.Super. at 64, 502 A.2d at 1274.

The exception discussed in Dorone is inapplicable to the instant case. Proceedings under the PFAA are not conducted in accordance with the equity rules and the trial judge in a PFAA hearing is not required to make an adjudication containing a statement of the issues, specific factual findings, legal conclusions and a decree nisi. As indicated above, PFAA actions are expressly governed by Rules 1905 and 1038, pursuant to which the trial court may make general or specific findings if he or she wishes. See Rules 1905(a) and Rule 1038(b), supra. Appellant’s reliance on Dorone is therefore misplaced.

Appellant also argues that the trial court’s order is defective because it does not contain a specific finding of abuse. Appellant believes that a finding of specificity is required because the statutory provisions, purportedly found at 23 Pa.C.S.A. § 6306, contain several different definitions of abuse. See Appellant’s Supplemental Statement. Appellant thus asserts that he could not file his post-trial motions since he was unaware of the precise definition of abuse relied upon by the lower court. See id. We find appellant’s reasoning to be fundamentally flawed.

We have examined Title 23 and have been unable to find enumerated therein Section 6306. We thus assume that appellant’s reference to Section 6306 is erroneous and that he intended to reference the statutory provisions of the PFAA. We have reviewed the PFAA and have found that only Section 6102(a), supra, contains a specific definition of “abuse.” Appellant thus could not have been confused or mistaken as to the definition of abuse relied upon by the trial court since there is only one definitional statute which applied in this case.

Notwithstanding appellant’s arguments to the contrary, neither Rule 1038 nor any other provision regulating PFAA proceedings mandates that a specific finding of abuse be set forth in the trial court’s decision. See Snyder v. Snyder, Pa.Super. at-, 629 A.2d at 981 (indicating that the focus of the PFAA is on the prevention of abuse in the generic sense and that the court may enter any protection order or approve any consent agreement to bring about a cessation of abuse). Instead, the PFAA directs the trial court to enter an order which may include, in relevant part: (1) a direction to the defendant to refrain from abusing the plaintiff or minor children; (2) the grant of possession to the plaintiff of the residence or household with concomitant exclusion of the defendant; (3) an award of temporary custody or visitation rights with regard to minor children; (4) a direction to the defendant to pay financial support to those persons he or she has a duty to support; (5) a prohibition barring the defendant from having any contact with the plaintiff and harassing the plaintiff, the plaintiffs relatives or minor children; (6) an order requiring the defendant to temporarily relinquish weapons which have been used or threatened to be used in an incident of abuse; and (7) a direction that the defendant pay the plaintiff for reasonable losses suffered as a result of the abuse, including, inter alia, losses for injuries sustained and reasonable attorney fees. 23 Pa.C.S.A. § 6108(a)(l)-(8).

The trial court’s order in this case provided, in pertinent part, that “the Court believes the following actions are necessary to bring about a cessation of the abuse of the Petitioner which this Court finds.... ” See Order, dated October 23, 1992 at 1. The order then sets forth the relief to which appellee is entitled. See id. This order fully complied with both the general directives of Rule 1038 and the more specific requirements of Section 6108 of the PFAA. Under these circumstances, the trial court’s order does not excuse appellant’s failure to file timely post-trial motions.

Appellant also argues that we should review his claims because of trial counsel’s ineffectiveness. The essence of appellant’s challenge appears to be that he is entitled to effective and competent representation in a PFAA proceeding and that trial counsel’s conduct has deprived appellant of this right. Appellant has not referred us to any pertinent authority which would support this novel proposition nor has our own research disclosed any such authority. Appellant nevertheless urges us to extend, by way of analogy, the holdings enunciated in juvenile delinquency proceedings in which the right to effective counsel has been recognized. See, e.g., In Interest of A.P., 421 Pa.Super. 141, 146, 617 A.2d 764, 767 (1992) (en banc); In Matter of Smith, 393 Pa.Super. 39, 47, 573 A.2d 1077, 1080 (1990) (en banc) and In Interest of Cunningham, 393 Pa.Super. 79, 80, 573 A.2d 1096, 1097 (1990) (en banc), allocatur granted, 527 Pa. 614, 617, 590 A.2d 755, 757 (1991) (juveniles are entitled to the benefit of effective representation of counsel in delinquency hearings). We agree with appellant that the right to effective representation has been acknowledged in delinquency actions as well as in dependency, termination of parental rights, involuntary commitment and paternity proceedings. See, e.g., In Interest of A.P., In Matter of Smith and In Interest of Cunningham, supra; In re S.M., 418 Pa.Super. 359, 366, 614 A.2d 312, 315 (1992) and In Matter of J.P., 393 Pa.Super. 1, 8, 573 A.2d 1057, 1061 (1990) (en banc) (parents of dependent children are entitled to effective representation in a dependency proceeding); In re Adoption of T.M.F., 392 Pa.Super. 598, 607, 573 A.2d 1035, 1040 (1990) (en banc), allocatur denied, 527 Pa. 634, 592 A.2d 1301 (1990) (Pennsylvania law requires counsel in termination of parental rights proceedings and flowing from this it is presumed that counsel should be effective); In re Hutchinson, 500 Pa. 152, 158, 454 A.2d 1008, 1011 (1982) (alleged mental incompetent is entitled to effective representation by competent counsel in an involuntary commitment proceeding as the appointment of court-appointed counsel is statutorily required); Corra v. Coll, 305 Pa.Super. 179, 193-194, 451 A.2d 480, 488 (1982) (indigent defendant must be appointed counsel in a proceeding to establish paternity). However, we are not persuaded that this same right should be extended to protection from abuse proceedings.

The cases in which the right to effective counsel has been recognized fall into one of two categories: (1) cases in which the right to counsel is statutorily mandated; or (2) cases in which the defendant could be deprived of a fundamental or substantial right under the United States or Pennsylvania Constitutions. Where the appointment of counsel is legislatively created, the courts have construed this right to necessarily include the right to effective and competent representation since the right to counsel would otherwise be rendered meaningless. See, e.g., In re Hutchinson, 500 Pa. at 157, 454 A.2d at 1011 and In Matter of Smith, 393 Pa.Super. at 45, 573 A.2d at 1079-1080.

Unlike cases arising under the Juvenile Act or cases concerning involuntary commitment, there is no legislatively created right to court-appointed counsel in PFAA proceedings. Rather, the PFAA only requires that the court advise a defendant of the right to be represented at the hearing by counsel. See 23 Pa.C.S.A. § 6107(a). The right to be represented by counsel cannot be equated with the right to receive court-appointed counsel. The right to be represented by counsel in civil proceedings is one accorded to all individuals. However, all civil litigants do not have the right to court-appointed counsel. The PFAA thus cannot be construed as requiring the appointment of counsel for indigent parties.

Although there is no legislative right to counsel, we must next ascertain whether a PFAA action is the type of proceeding which involves the deprivation of a constitutional right so as to require the appointment of counsel. Even were we to assume, purely for the sake of argument, that the appointment of counsel was constitutionally mandated in a PFAA proceeding and that this encompasses the right to effective representation, we nevertheless conclude that appellant is not entitled to any relief.

The appellate courts have generally applied the standard of review utilized in criminal proceedings to determine whether counsel has provided effective representation in noncriminal settings. See, e.g., In re Hutchinson, 500 Pa. at 158, 454 A.2d at 1011 (1982). In this case, the alleged ineffectiveness involves trial counsel’s failure to preserve appellant’s claims for review by filing timely post-trial motions. While this conduct is not to be condoned, it does not entitle appellant to relief unless he can demonstrate: that the underlying claims have arguable merit; that counsel’s actions had no reasonable basis designed to effectuate appellant’s interests; and that he has been prejudiced by counsel’s conduct. See In re Hutchinson, supra; Commonwealth v. Persinger, 532 Pa. 317, 321, 615 A.2d 1305, 1307 (1992); In Interest of A.P., 421 Pa.Super. at 147, 617 A.2d at 767.

Appellant believes that relief is warranted because the evidence was insufficient to sustain the trial court’s finding of abuse and because the trial court erred in admitting testimony concerning prior incidents of abuse. In reviewing an allegation of this type, this court has applied the same standard governing a review of the sufficiency of the evidence in a civil action, which is set forth as follows:

In considering the sufficiency of the evidence to sustain the verdict, we view the evidence in the light most favorable to the verdict winner, granting that party the benefit of all reasonable inferences, and determine whether the evidence introduced at trial was sufficient to sustain the verdict.

Snyder v. Snyder, — Pa.Super. at-, 629 A.2d at 982.

In support of his challenge' to the sufficiency of the evidence, appellant relies upon Keith v. Keith, 28 D. & C.3d 462 (C.C.P. Lancaster 1984) and Popeski v. Popeski, 3 D. & C.4th 200 (C.C.P. Erie 1989). We find these decisions to be factually distinguishable from the instant case. The facts presented here are more closely aligned with those presented in Ickes v. Ickes, 3 D. & C.4th 166 (C.C.P. Adams 1989). In Ickes, the defendant-husband grabbed the steering wheel three times while the plaintiff-wife was driving and attempted to pull the vehicle to the side of the road. Id. at 167. The trial court found this conduct sufficient to constitute abuse under the PFAA. Id. at 169. Appellant’s conduct in this case, i.e., driving at a dangerous rate of speed over rural roads during the late evening hours and trapping appellee against a cement bridge abutment with the parties’ van represents the same type of conduct deemed sufficient to constitute abuse as in Ickes.

Appellant also challenges the trial court’s decision to admit appellee’s testimony concerning a prior incident of abuse which occurred earlier in the parties’ marriage. “Questions of the admission and exclusion of evidence are within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion.” Moran v. G. & W.H. Corson, Inc., 402 Pa.Super. 101, 125, 586 A.2d 416, 428 (1991), allocatur denied, 529 Pa. 650, 602 A.2d 860 (1992) (citation and quotation marks admitted). Accord Snyder v. Snyder, — Pa.Super. at-, 629 A.2d at 982. “Evidence is admissible if ... [it] logically or reasonably tends to prove or disprove a material fact in issue, tends to make such a fact more or less probable, or affords the basis for or supports a reasonable inference or presumption regarding the existence of a material fact.” Moran v. G. & W.H. Corson, Inc., 402 Pa.Super. at 125-126, 586 A.2d at 428-429 (citations and quotation marks omitted).

As applied here, the trial court found that the evidence of prior abuse was relevant and probative with respect to the question of whether appellant’s conduct reasonably placed appellee in fear of imminent serious bodily injury at the time the instant abuse occurred. N.T. 10/21/92 at 7-8. Under these circumstances, the trial court did not abuse its discretion in admitting evidence of the parties’ prior conduct. See Snyder v. Snyder, — Pa.Super. at -, 629 A.2d at 982 (finding that prior incidents of abuse which had not been alleged in the plaintiffs petition were properly admitted where they were relevant and probative). Because neither of appellant’s underlying claims has merit, trial counsel cannot be faulted for failing to preserve these issues for appellate review. Thus, appellant has failed to demonstrate that ineffective representation occurred in this case.

It is well settled that the appellate courts will not decide constitutional issues unless it is absolutely necessary to do so. Krenzelak v. Krenzelak, 503 Pa. 373, 381, 469 A.2d 987, 991 (1983); Heard v. Heard, 418 Pa.Super. at 258, 614 A.2d at 260. Since trial counsel was not ineffective in the instant case, this appeal is not the proper vehicle for resolving the constitutional question of whether a defendant in a PFAA action is entitled to receive court-appointed counsel and whether that counsel must provide effective representation. Having found that appellant’s allegations of error do not warrant the grant of any relief, we affirm the action of the lower court.

Order affirmed.

      . Capitalized words are contained in the original form and designates the portions thereof which are pre-printed. The description of the incident was hand-written by appellee and extends onto a blank page affixed to the petition. The spelling and grammatical construction in the original petition have been left intact.

      . Appellant initially argued in his brief that the trial court failed to issue a general finding of abuse in its order. Appellant’s Brief at 15. Following oral argument, appellant’s counsel determined that this assertion was erroneous and filed a request for leave to file a supplemental statement, which was subsequently granted by order of this court. Counsel has filed this statement and now avers that while the trial court’s order contains a general finding of abuse, the order fails to specify the definition of abuse which was relied upon. Appellant's Supplemental Statement.

      . Even if this section exists, it would appear to fall within the provisions of the Child Protective Services Law ("CPSL”), 23 Pa.C.S.A. § 6301- § 6384. The proceedings in this case arise under the PFAA, not the CPSL. Accordingly, the definitions set forth in the PFAA rather than the CPSL are controlling.

      . To the extent that appellant’s argument may be further construed as a challenge to the trial court’s failure to identify the subcategory of abuse which applied to appellant's conduct, this claim must likewise be rejected. There is no requirement that the trial court specify which of the four definitions of abusive conduct set forth in Section 6102(a) has been established by the evidence. Moreover, the evidence in this case could only reasonably have been based upon the definitions of abuse set forth in Section 6102(a)(1) or (a)(2). Because appellant’s conduct supported a finding of abuse under either definition, we are mystified as to the manner in which the trial court’s failure to specify the subsection relied upon completely absolved appellant of his responsibility to file any post-trial motions.


source: Caselaw Access Project

author: ROWLEY, President Judge:

license: Public Domain

text:
    631 A.2d 658
    Richard B. MOORE, Appellant, v. Hon. Nelson A. DIAZ and Matthew F. Lewandowski.
    Superior Court of Pennsylvania.
    Argued May 27, 1993.
    Filed Sept. 16, 1993.

      Richard B. Moore, in pro. per.
    Howard M. Holmes, Philadelphia, for appellees.
    Before ROWLEY, President Judge, and FORD ELLIOTT and HOFFMAN, JJ.
   ROWLEY, President Judge:

Contending that his appointed position as Assistant Jury Commissioner was eliminated by the appellee, Judge Diaz, who lacked the authority to take such action, Richard B. Moore, (hereinafter “appellant”) appeals from the trial court’s adjudication in equity in favor of Judge Diaz , and Matthew F. Lewandowski, (hereinafter “appellees”). In order to dispose of this appeal, we must consider two interrelated questions raised by appellant, which are: (1) “whether the Jury Commission[ ] in Philadelphia [County] is part of the Court' of Common Pleas of Philadelphia [County];” and (2) “whether an Administrative Judge of the Trial Division [of the Philadelphia County Court of Common Pleas] can furlough/terminate an Assistant Jury Commissioner of Philadelphia [County].” Following a thorough review of the record and careful analysis of appellant’s arguments, we affirm the trial court’s order dismissing the instant cause of action.

An understanding of the history underlying the Jury Selection Commission of Philadelphia County, and its composition, is necessary to a meaningful analysis of the instant appeal. By custom, from 1858 to 1976, potential jurors in Philadelphia County were chosen by the Board of Judges of the Philadelphia County Court of Common Pleas with the assistance of the Sheriff of that county. Eventually this task became so time consuming and burdensome to the Board of Judges and the Sheriff that, to assist them in carrying out the task of selecting jury pools for each session of court, they appointed a “clerk of the board,” an “assistant clerk of the board,” and several persons who were designated as “masters.”

In 1978, with regard to all counties of this Commonwealth except Philadelphia, the legislature altered the manner in which the members of the body responsible for selecting potential jurors should be chosen. In this regard, 42 Pa. C.S.A. § 2122(a) provides that “[ejxcept in the first judicial district, the jury selection commission shall consist of two jury commissioners [who are] elected ... and the president judge of the court of common pleas of the judicial district embracing that county.” (emphasis supplied).

Subsequently, in 1980, the legislature attempted to codify the system utilized by Philadelphia County for its jury selection process. In this regard, 42 Pa.C.S.A. § 2122(d) provides that “[i]n the first judicial district, the jury selection board shall constitute the jury selection commission. The clerk of the board shall be the commissioner, the assistant clerk of the board shall be the deputy commissioner, and the masters, not to exceed four, shall be the assistant commissioners.” This statute changed neither the composition of the group appointed to carry out the task of selecting potential jurors, nor the relationship between that group and the Court of Common Pleas. It merely changed the name given to that group from “Jury Selection Board” to “Jury Selection Commission.” The Commission’s members are today, and have always been, appointed by the Board of Judges of the Court of Common Pleas, with the assistance of the Sheriff.

With this historical perspective, we move on to a recitation of the facts pertinent to this appeal. At all relevant times, Justice Papadakos of the Supreme Court of Pennsylvania was overseeing the fiscal affairs of the Philadelphia County Court of Common Pleas (hereinafter “court”). He had the authority to “approve, implement and monitor all changes deemed necessary and proper to the[ ] [court’s] budgets and to insure that such changes bring about fiscal responsibility.” In re Petition of Blake, 527 Pa. 456, 458, 593 A.2d 1267, 1268 (1991).

Pursuant to that authority, on March 1, 1991, Justice Papadakos penned a letter, on stationery bearing the name of the Supreme Court of Pennsylvania, to Judge Diaz, in his capacity as Administrative Judge of the Trial Division of the Philadelphia County Court of Common Pleas, advising that “the Supreme Court is committed to” “the task of reducing the budget of the Philadelphia courts by at least $16,000,000.00.” In furtherance of that goal, Judge Diaz was expected to “fashion a plan of reducing the workforce in [the Trial] Division and [to] submitf] it to [Justice Papadakos] for approval and/or modification.”

Thereafter, Judge Diaz appointed a “Staffing Committee” to study the organizational structure of the court and to determine which staff positions could be cut from the court’s budget without substantial interference to the court’s operations or efficiency. At the time the study was conducted, there were three (3) Assistant Jury Commissioners in Philadelphia County, although the statute authorizes up to four (4) such positions. The study recommended a salary reduction with regard to each of the three Assistant Jury Commissioners from $33,000.00 to $26,000.00. Additionally, the study indicated that the post of Assistant Jury Commissioner in Philadelphia County did not carry any substantive duties but rather, was “largely ceremonial” in nature. The budget of the Jury Selection Commission of Philadelphia County is, and always has been, subsumed in the court’s budget.

Based on the results of the study and pursuant to the mandate of the Supreme Court to reduce the budget of the Trial Division, Judge Diaz, acting as Administrative Judge thereof, reduced the salaries of all three Assistant Jury Commissioners to $10,000.00 per year. A union grievance was then filed on behalf of the Assistant Jury Commissioners with regard to the salary diminution because, although they were not union “members,” their positions were “covered” by the bargaining agreement. The union grievance was granted. However, following negotiations with the court employees union, Local 810, Judge Diaz decided to completely eliminate the positions of Assistant Jury Commissioner rather than renegotiate the salaries therefor. Many other positions throughout the Trial Division were also eliminated by Judge Diaz.

Early in August of 1991, the three appointed Assistant Jury Commissioners then serving Philadelphia County were advised that they would be “furloughed from the Court of Common Pleas on August 23, 1991.” The notifications were sent on the official stationery of “Nelson A. Diaz, Administrative Judge, Trial Division, Court of Common Pleas.” The recipients of this notification were requested to “report to the Court Personnel Office, Room 311, One East Penn Square, to sign [thei]r separation papers” at 3:00 p.m. on their furlough date.

Appellant, an attorney, was one of the three individuals who held the post of Assistant Jury Commissioner when it was abrogated. On August 23,1991, in a space designated “Signature of Employee,” appellant signed his name to a “Report of Separation” listing his department as “Court of Common Pleas” and his class title as “Assistant Commissioner, Jury Selection.”

A Complaint in Equity was then filed by appellant pro se seeking reinstatement to the position of Assistant Jury Commissioner, contending that Judge Diaz, acting in his capacity as Administrative Judge of the Trial Division, was without authority to “furlough” him because he served exclusively at the will of the “Jury Selection Commission,” a separate entity “created by statute,” 42 Pa.C.S.A. § 2122(d), rather than at the pleasure of the court. Following a hearing, Senior Judge' Oscar S. Bortner, Specially Presiding, found in favor of appellees and dismissed appellant’s cause of action. Post-trial .motions were filed and denied. The instant appeal was then timely filed.

As a preliminary matter, we note that this appeal is properly before us pursuant to Rule 741 of the Rules of Appellate Procedure, 42 Pa.C.S.A. That rule provides that “[t]he failure of an appellee to file an objection to the jurisdiction of an appellate court on or prior to the last day under these rules for the filing of the record” perfects the jurisdiction of the appellate court in which it initially was filed, “notwithstanding any provision of law vesting jurisdiction of such appeal in another appellate court.” 42 Pa.C.S.A. Rule 741(a).

In the instant case, although appellant should have filed this appeal with the Commonwealth Court, 42 Pa.C.S.A. § 762(a)(4), appellees made no objection to this Court’s jurisdiction. Therefore, jurisdiction has been perfected in this Court, and pursuant to Rule 752 of the Pennsylvania Rules of Appellate Procedure, 42 Pa.C.S.A., it is within our discretion to hear the appeal or to transfer it. Schaeffer v. Frey, 403 Pa.Super. 560, 563-564 n. 4, 589 A.2d 752, 754 n. 4 (1991); Schultz v. City of Philadelphia, 314 Pa.Super. 194, 197, 460 A.2d 833, 834 (1983). In the interest of judicial economy, we exercise our discretion to hear appellant’s arguments and decide the merits thereof in this tribunal.

In addressing appellant’s claims, we are mindful of the standard by which we must review them, as follows:

“Our scope of review of an adjudication in equity is well established. A chancellor’s findings of fact ... have all the force and effect of a jury’s verdict and will not be disturbed on appeal if there is sufficient evidence to sustain such findings, [citation omitted]. This rule is particularly applicable to findings which are predicated upon the credibility of witnesses, whom the chancellor has had the opportunity to hear and observe, [citation omitted]. It is equally well settled that a chancellor’s conclusions, whether of law or ultimate fact, are always reviewable as they are no more than his reasoning from the underlying facts, [citation omitted].”

Village Beer & Beverage, Inc. v. Vernon D. Cox & Co., 327 Pa.Super. 99, 102, 475 A.2d 117, 118 (1984). See also: Wagner v. Hart Chemical Co., 409 Pa.Super. 289, 597 A.2d 1208 (1991), alloc. denied, 533 Pa. 601, 617 A.2d 1275 (1992).

Appellant’s first contention is that Judge Diaz was without authority to terminate appellant’s position as Assistant Jury Commissioner of Philadelphia County because appellant was not an employee of the Court of Common Pleas. Appellant contends that he served exclusively at the will of the Jury Selection Commission. We must therefore decide whether the Jury Selection Commission is an organization separate and apart from the Court of Common Pleas, as appellant contends, or rather, is a department within the Trial Division of the Philadelphia court system, as argued by appellee.

In its findings of fact, the trial court specifically found that the group of individuals in charge of Philadelphia County’s jury selection, whether it be titled the “Jury Selection Board” or the “Jury Selection Commission,” has, both in the past and in the present, evidenced an intention to be under the “guiding hand” of the Philadelphia County court system. In so finding, the trial court relied heavily on the testimony of Former Jury Commissioner Kozay, now a Judge of the Court of Common Pleas.

Judge Kozay testified that in his tenure as Jury Commissioner, he was regarded as one of the “Department Heads” in the court system and as such, was given a set of regulations and policies by the Court Administrator pertaining to court personnel. Furthermore, Judge Kozay testified that these regulations were consistently followed by him in managing the staff of the Jury Selection Commission. Finally, Judge Kozay testified that the Jury Selection Commission has not “operated under an independent budget since 1957, when it was absorbed by the Court of Common Pleas.” (emphasis added)

Based on this testimony, and the relevant statutory authority, 42 Pa.C.S.A. § 2122, the Chancellor found that in Philadelphia, as opposed to all other counties in this Commonwealth, the Jury Commissioner, Deputy Jury Commissioner, and the Assistant Jury Commissioners, are by custom and codification thereof, employees of the Court of Common Pleas. They function together as a unit or department under the umbrella of the court system. Appellant has not presented one shred of evidence to the contrary.

Indeed, the record is conspicuously silent as to the manner in which appellant came to be an Assistant Jury Commissioner in Philadelphia County. In the absence of such evidence, and in light of overwhelming countervailing evidence, we deem appellant’s claim, that only the Jury Selection Commission had the legal authority to terminate him, to be completely devoid of merit.

In addition to the factors delineated by the trial court which indicate the actuality of the employer/employee relationship of the Court of Common Pleas in Philadelphia County to the Jury Selection Commission, we note the following items, all of which indicate to us that appellant was indeed an employee of the Philadelphia County Court of Common Pleas: (1) the use of the term “employer ” to designate the Philadelphia County Court of Common Pleas in the bargaining agreement which “covered” appellant’s position as Assistant Jury Commissioner; (2) the fact that appellant submitted a request for a leave of absence from his duties as Assistant Jury Commissioner to Judge Diaz, in his capacity as Administrative Judge of the Trial Division of the Philadelphia court system; and finally, (3) appellant’s signature on a document entitled a “Report of Separation” designating him as an employee of the Court of Common Pleas. Having carefully perused the record evidence in this case, we determine that the Chancellor’s factual findings are more than adequately supported.

It is clear to us that the Court of Common Pleas of Philadelphia County has the right to control the manner in which the Jury Selection Commission performs its work because this group was originally created by the Board of Judges in Philadelphia County to perform a function which had previously been entrusted to them, together with the Sheriff, to wit, that of selecting potential jurors to hear cases tried in the Court of Common Pleas. Therefore, we conclude, as did the trial court, that while he occupied the office of Assistant Jury Commissioner, appellant was, in fact, an employee of the Philadelphia County Court of Common Pleas.

Next, we must determine whether the Chancellor was correct in concluding that termination of appellant’s ceremonial office was within the authority and discretion of Judge Diaz, acting as Administrative Judge of the Trial Division of the Philadelphia County Court of Common Pleas. Rule 706(d) of the Rules of Judicial Administration provides that:

“[e]ach division of a court having three or more judges shall be presided over and administered by an administrative judge, who shall be one of the judges of the court of which the division is a part and shall be selected by the Supreme Court to serve for a term of three years or at the pleasure of the Court.”

Further, the Directive to that rule states that “[t]he Administrative Judge shall appoint and assign all personnel of the division.”

A “Division” is defined as:

“[a]n administrative unit composed of those judges of the court responsible for the transaction of a specified class of the business of the court. In a court having two or more divisions, each division of the court is vested with the full jurisdiction of the whole court, but the business of the court may be allocated among the divisions of the court by or pursuant to general rules.”

42 Pa.C.S.A. § 102.

Appellant has advanced no legal authority in support of his argument that Judge Diaz acted beyond the scope of his power as Administrative Judge of the Trial Division in eradicating the post of Assistant Jury Commissioner. Rather, appellant cites us to Beckert v. Warren, 497 Pa. 137, 439 A.2d 638 (1981). We note that this case was decided prior to the Supreme Court’s order appointing Justice Papadakos to oversee the budgetary restructuring of the Philadelphia court system. In Beckert, the Supreme Court considered the burden of proof that common pleas judges bear in a mandamus action brought to compel county commissioners to comply with the budgetary requirements of the court.

Appellant relies on this case for the proposition that “county staff ... includes jury commissioners,” such that the “general supervisory and administrative authority [of the Supreme Court] over the personnel of the [unified judicial] system” is not applicable in this case. However, appellant’s reliance upon Beckert is misplaced for several reasons. First,, the Supreme Court stated in Beckert that employees will be deemed “county staff,” rather than court personnel, when they are “neither appointed nor supervised by the judges of a court of common pleas.” Id. at 148, 439 A.2d at 644. In the instant case, the judges of the court of common pleas do appoint the individuals who constitute the Jury Selection Commission, and therefore, those persons, including appellant, cannot be regarded as “county staff.”

Secondly, the Beckert case originated in Bucks County, where by statute and custom, Jury Selection Commissioners are elected. However, in Philadelphia, by custom, subsequently codified by the legislature, a completely different practice is utilized. Thus, we conclude that Beckert is inapposite to the facts of the instant case.

Therefore, in light of the power given to Judge Diaz under the Rules of Judicial Administration, as Administrative Judge of the division logically governing juries, the Trial Division, to “facilitate the speedy and proper administration of justice in th[at] division[],” and also in view of the specific approval given to Judge Diaz by Justice Papadakos of the Supreme Court concerning abrogation of appellant’s position due to budgetary constraints, we decide that Judge Diaz was acting well within his sphere of authority, as Administrative Judge of the Trial Division, in furloughing appellant from a post which he held at the exclusive pleasure of the Philadelphia County Court of Common Pleas. Thus, the conclusions drawn by the Chancellor from his findings of fact are legally sound and appellant’s cause of action must fail.

Accordingly, we affirm the decision of the trial court awarding judgment to appellees.

Judgment affirmed.

      . At the time of the events giving rise to this law suit, Judge Diaz was the Administrative Judge of the Trial Division of the Court of Common Pleas of Philadelphia.

      . Deputy Court Administrator for Personnel Services.

      . By the Act of May 10, 1949, P.L. 1066, 17 P.S. § 1251, the legislature codified Philadelphia’s jury selection practice. That statute provided that ”[t]he judges of the courts of common pleas of each county of the first class, with the sheriff thereof, shall constitute a board to be known as the ‘jury selection board.’ ”

      . We find it very significant that in passing 42 Pa.C.S.A. § 2122, the legislature chose not to disturb the practice utilized by Philadelphia County for selecting jury pools. Contrary to the arguments made by appellant, we believe this evidences a deliberate intent on the part of the legislature not to create a separate and independent body for the task of jury selection in Philadelphia County.

      . The trial court found that because a quorum is all that is necessary for a member of the Jury Selection Commission to be appointed, and because "the sheriff['s] ... absence could never defeat a quorum,” (Trial Court Opinion, 12/Í8/92, p. 8), it is, in actuality, the Board of Judges of the Philadelphia County Court of Common Pleas that directs both the operation of the Jury Selection Commission and appoints its members. This finding is adequately supported by the evidence of record.

      . The salaries of the Jury Commissioner and Deputy Jury Commissioner were also substantially reduced.

      . The bargaining agreement, pursuant to which the grievance was filed on behalf of appellant and others, provided that the Court of Common Pleas of Philadelphia County was the employer of Philadelphia County’s Assistant Jury Commissioners.

      . 1972 to 1988.

      . In so concluding, we note that the "relation of employer and employee exists when a party has the right to select the employee, the power to discharge him, and the right to direct both the work to be done and the manner in which such work shall be done.” Sweet v. Pennsylvania Labor Relations Board, 457 Pa. 456, 462, 322 A.2d 362, 365 (1974). See also: Local 449 v. Pennsylvania Labor Relations Board, 149 Pa.Commw. 411, 416, 613 A.2d 155, 157 (1992). Furthermore, "it is enough to establish the employer-employee relationship if the employer has the right to control the employee’s manner of performance of work, regardless of whether the right is ever exercised.” Red Line Express Co., Inc. v. W.C.A.B. (Price), 138 Pa.Commw. 375, 381, 588 A.2d 90, 93 (1992).

      . Our decision here, although not mandated by the Standards Relating to Court Organization published by the Judicial Administration Division of the American Bar Association, is in complete conformity therewith. Section 1.41, relating to Court Administrative Offices, provides that one of the responsibilities of court unit administrators, such as the Administrative Judge of the Trial Division of a Court of Common Pleas, should be "jury administration." Standards of Judicial Administration, Volume 1, § 1.41(b)(ii)(8).


author: HOFFMAN, Judge.

text:
    631 A.2d 665
    Thomas JONES and Emma Jones, Appellants, v. GENERAL MOTORS CORPORATION.
    Superior Court of Pennsylvania.
    Argued May 12, 1993.
    Filed Sept. 20, 1993.

      George F. Douglas, Jr., Carlisle, for appellants.
    Maureen A. Kane, Philadelphia, for appellee.
    Before POPOVICH, HOFFMAN and HESTER, JJ.
   HOFFMAN, Judge.

This is an appeal from an order granting summary judgment in favor of appellee, General Motors Corporation. Appellants, Thomas Jones and Emma Jones, present the following question for our review:

Can there be a product liability cause of action under Section 402A of the Restatement of Torts, 2d, for fire damage to the vehicle itself, allegedly caused by a defect in the design or manufacture of the said vehicle?

Appellants’ Brief at 2. For the reasons set forth below, we affirm.

Preliminarily, we point out that a motion for summary judgment is properly granted only where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Pa.R.C.P. 1035(b). In reviewing a motion for summary judgment, the trial court “must examine the record in the light most favorable to the non-moving party.” Laventhol & Horwath v. Dependable Ins. Associates, Inc., 396 Pa.Super. 553, 558, 579 A.2d 388, 390 (1990), appeal denied, 527 Pa. 648, 593 A.2d 420 (1991).

Applying this standard of review, the relevant facts are as follows. In 1986, appellants purchased a new Chevrolet pickup truck which was manufactured in part, sold and/or supplied by appellee. On the morning of June 22,1991, Thomas Jones drove his pick-up truck from his home in Wapwallopen, Luzerne County, to the parking lot of the Ames Department Store located in Columbia County. While Thomas Jones was inside the department store, a malfunction in the truck caused the vehicle to catch fire. The fire resulted in the destruction of appellants’ pickup truck.

On December 11, 1991, appellants filed a complaint against appellee seeking $7,976.95 in damages for the loss of their pick-up truck. On October 1,1992, appellee filed a motion for summary judgment alleging that appellants failed to state a claim upon which relief could be granted. The trial court subsequently granted appellee’s motion for summary judgment in its November 13, 1992 order. This timely appeal followed.

Appellants contend that as they sufficiently stated a cause of action for relief in strict liability, the trial court erred in granting summary judgment. We disagree.

In REM Coal Co., Inc. v. Clark Equipment Co., 386 Pa.Super. 401, 563 A.2d 128 (1989), this Court held that negligence and strict liability theories do not apply to disputes involving a product that malfunctions where the only resulting damage is to the product itself. Id. at 412-13, 563 A.2d at 134. In the instant action, appellants have made no allegations of damage outside of the loss of the truck itself. Appellants properly point out, however, that the REM Coal decision was limited to disputes between commercial enterprises. Here, the dispute is between a commercial enterprise, appellee, and two individuals, appellants. Nonetheless, we find that the rationale behind REM Coal is equally applicable to disputes involving claims brought by individuals.

We first note that in limiting its holding to disputes between commercial enterprises, the REM Coal Court did not conclude that its analysis was inapplicable to disputes involving noncommercial parties. Rather, the Court was simply restricting itself to the question before it. See id. at 413, 563 A.2d at 134 n. 4 (“Since the case sub judice involves a dispute between commercial enterprises, we need not decide any questions regarding disputes between non-commercial parties.”).

In reaching its decision that damage to a manufacturer’s product alone is not sufficient to state a cause of action in negligence or strict liability, the REM Coal Court provided the following rationale:

Pennsylvania’s breach of warranty law supplies a suitable framework for regulating and enforcing the expectations and obligations of the parties as to product enforcement. It provides a disappointed purchaser a complete remedy for loss of the product itself and of its use within the limits of the parties’ contractual understandings. To impose tort liability in addition would certainly erode the important distinctions between tort and contractual theories including their differing objectives.

REM Coal at 411, 563 A.2d at 133 (citation omitted).

The same concerns are present in the instant case. Regardless of whether a consumer is a commercial entity or an individual, a manufacturer’s warranty as to the quality of its product is a bargained for condition of sale, the effect of which must not be undermined. If a consumer were entitled to bring an action under both contract and tort law where the only damage alleged is to the product, any limitation of the manufacturer’s liability pursuant to the warranty would have little or no effect. As the REM Coal Court stated, such a deleterious result can easily be avoided by limiting consumers in those situations to the remedies available under contract law.

As appellants have made no allegations of damage outside of the loss of the truck, they have failed to state a cause of action in strict liability. Accordingly, we affirm the trial court’s order.

Order affirmed.

      . Appellants eventually reduced their claim to $6,018.95 as a result of the $1,958.00 they received for the remains of the pickup truck.


author: WIEAND, Judge: HESTER, Judge,

text:
    631 A.2d 666
    COMMONWEALTH of Pennsylvania, Appellant, v. Christina A. SPENCE, Appellee.
    Superior Court of Pennsylvania.
    Submitted April 14, 1993.
    Filed Sept. 21, 1993.

      Bradley K. Hellein, Asst. Dist. Atty., Kittanning, for Com., appellant.
    Joseph Caruso, Ford City, for appellee.
    Before WIEAND, POPOVICH and HESTER, JJ.
   WIEAND, Judge:

In this criminal action, the trial court suppressed evidence obtained by electronic interception and also evidence subsequently seized from the defendant’s vehicle. The Commonwealth appealed. It has certified that the court’s suppression of evidence has substantially handicapped the prosecution.

In August, 1990, state police were able to enlist the services of Donald Dentici, a confidential informant, to assist in the investigation of illegal drug activities in Armstrong County. Pursuant thereto, he agreed to permit the interception and recording of telephone conversations with his suppliers. On August 7, 1990, Dentici was interviewed by Deputy Attorney General Eric Noonan, who concluded that Dentici’s consent to such interceptions was being given freely and voluntarily. Therefore, Noonan prepared a Memorandum of Approval allowing consensual interceptions of oral/wire conversations involving Dentici and others during the period between noon on August 9,1990, and noon on August 29,1990. Dentici also signed a memorandum of consent for the same period. Subsequently, he signed seven (7) additional memoranda of consent for varying periods until April 16,1991. Several of these were executed in the presence of his lawyer. However, Dentici was not again interviewed by representatives of the Attorney General or the District Attorney, and no determinations were made by those officials that he was continuing to cooperate freely and voluntarily.

On January 21, 1991, during a consensual telephone intercept, Dentici was able to arrange for a purchase of marijuana from Christina A. Spence. She was unsure of the quantity which she could deliver, and Dentici was instructed by her to call back. When he did so, Spence had been unable to contact her source. Therefore, Dentici agreed to call the following day. However, later that evening, at or about 10:30 p.m., Spence called to say that she could guarantee at least ten pounds. Arrangements were then made for delivery to take place at a McDonald’s Restaurant outside of Kittanning on the following day.

At or about 10:30 a.m. on January 22,1991, Dentici received a call from Spence advising that she was on her way from Toledo, Ohio. She also said that she had ten bushels of apples, which was understood to mean ten pounds of marijuana. Dentici asked that she call again when she was about an hour’s driving time away. This conversation was not intercepted but was related by Dentici to State Trooper Jeffrey Rood, who was participating in the investigation. A second unintercepted call was received about 2:00 p.m., when Spence said she was at Butler and driving a white Ford Taurus.

Police thereafter arranged for surveillance at McDonald’s. At or about 2:30 p.m., Spence arrived and met Dentici. After a short conversation, Dentici was permitted to examine the contents of the trunk of Spence’s vehicle. Both parties then re-entered their vehicles. Spence drove to another portion of the parking lot, and Dentici left, ostensibly to obtain the money to conclude the purchase. In fact, he stopped and told police that the marijuana was in the trunk of the Spence vehicle. When police, with a drug detection canine, approached the Spence vehicle, appellee attempted to leave but was prevented from doing so by police vehicles. She was asked to consent to a search of her vehicle but refused. When the dog was taken to the vehicle, however, it indicated a “hit” at the left rear of the Spence vehicle. The trunk of her vehicle was then opened, revealing numerous baggies of marijuana, and Spence was placed under arrest.

She was thereafter charged with possession of a controlled substance, possession with intent to deliver, possession of drug paraphernalia, and criminal conspiracy. She filed an omnibus pre-trial motion seeking to suppress the contents of her several telephone conversations and the contraband which had been removed from the trunk of her car. The trial court granted the petition and suppressed not only the intercepted telephone conversations but also evidence of unintercepted telephone conversations and contraband seized in the McDonald’s parking lot which, the court determined, had been the product of unlawful telephone interceptions.

The focus and purpose of the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. §§ 5701, et séq., is the protection of privacy. Commonwealth v. DeMarco, 396 Pa.Super. 357, 371, 578 A.2d 942, 949 (1990). The Act criminalizes the interception of wire and oral communications, and prohibits the use of the contents of any communication derived from such an interception. See: 18 Pa.C.S. § 5703. Excepted, however, are interceptions made for law enforcement purposes, where one party to a wire or oral communication has consented to the interception of that communication. The Act provides, in pertinent part:

§ 5704. Exceptions to prohibition of interception and disclosure of communications
It shall not be unlawful under this chapter for:
(2) Any investigative or law enforcement officer or any person acting at the direction or request of an investigative or law enforcement officer to intercept a wire, electronic or oral communication involving suspected criminal activities where:
(ii) one of the parties to the communication has given prior consent to such interception. However, no interception under this paragraph shall be made unless the Attorney General or a deputy attorney general designated in writing by the Attorney General, or the district attorney, or an assistant district attorney designated in writing by the district attorney, of the county wherein the interception is to be made, has reviewed the facts and is satisfied that the consent is voluntary and has given prior approval for the interception; however such interception shall be subject to the recording and record keeping requirements of section 5714(a) (relating to recording of intercepted communications) and that the Attorney General, deputy attorney general, district attorney or assistant district attorney authorizing the interception shall be the custodian of recorded evidence obtained therefrom.

18 Pa.C.S. § 5704(2)(ii). See: Commonwealth v. Brachbill, 520 Pa. 533, 546-547, 555 A.2d 82, 89 (1989); Commonwealth v. Parrella, 416 Pa.Super. 131, 139, 610 A.2d 1006, 1010 (1992).

If an interception of a wire or oral communication is made without prior compliance with the Act, evidence obtained as a result of the interception is subject to being suppressed. The Act provides in part as follows:

§ 5721. Suppression of contents of intercepted communication or derivative evidence
(a) Motion to suppress. — Any aggrieved person in any trial, hearing, or other adversary proceeding in or before any court or other authority of this Commonwealth may move to suppress the contents of any intercepted wire, electronic or oral communication, or evidence derived therefrom, on any of the following grounds:
(1) The communication was unlawfully intercepted.

18 Pa.C.S. § 5721(a)(1). See also: Commonwealth v. Parrella, supra at 139, 610 A.2d at 1010; Commonwealth v. DeMarco, supra at 371, 578 A.2d at 948-949.

The record shows that on August 7, 1990, Dentici signed a consent form which permitted the interception and recording of his telephone conversations from August 9, 1990 to August 29,1990. That same day, Deputy Attorney General Eric Noonan, after interviewing Dentici, completed an extensive written memorandum approving the wiretap. When Dentici thereafter signed seven additional consent memoranda for additional periods of time, he was not again interviewed by a deputy attorney general or assistant district attorney, and there was no determination made that Dentici had consented freely and voluntarily. Although Dentici testified at the suppression hearing that Assistant Attorney General Doug Wright had contacted him prior to his signing of the January 3rd consent, the suppression court found no evidence that Dentici’s continuing voluntariness had been discussed. Moreover, there was no evidence that approval, written or otherwise, had been obtained from an appropriate authority for a wiretap during the time period beginning on January 3, 1991 and continuing until appellee’s arrest on January 22, 1991. Given these facts, the trial court properly found that the interceptions of Dentici’s telephone conversations with the defendant-appellee had not been properly authorized.'

In Commonwealth v. Clark, 374 Pa.Super. 308, 542 A.2d 1036 (1988), allocatur denied, 523 Pa. 635, 565 A.2d 444 (1989), the Superior Court concluded that the Wiretap Act requires that the Attorney General, District Attorney, or a designee of the Attorney General or District Attorney, review the facts and interview an informant each time a new consent is signed in order to determine the voluntariness of that consent. The Clark Court wrote:

The provisions of the Act must be strictly adhered to in order to insure that safeguards are in place to protect persons from unauthorized surreptitious interceptions. Here, the supervision directed by the Act was not followed. The responsibilities outlined in the Act regarding the duties of the Attorney General, District Attorney or their designee are non-deligable [sic]. Those persons responsible for authorizing interceptions under the Act must personally review the facts, ascertain directly from the consenting party the voluntariness of his or her consent and give prior approval to the interceptions. The Assistant District Attorneys’ [sic] designated to authorize the interception of Appellant’s conversations with Mr. McCullough never performed these prepatory [sic] duties. Rather, these duties were wrongly delegated to and undertaken by the Pennsylvania State Police.

Id. 374 Pa.Super. at 317, 542 A.2d at 1040. See also: Commonwealth v. Adams, 362 Pa.Super. 549, 556, 524 A.2d 1375, 1378, allocatur denied, 516 Pa. 631, 533 A.2d 90 (1987).

Here, too, the duties imposed by the Act were improperly delegated to the State Police conducting the investigation. While it is clear that the State Police had Dentici complete a consent form for the time period in which calls between Dentici and the defendant-appellee were intercepted, it is equally clear that the only intercept approved by the Attorney General was the initial intercept period. This period expired on August 29, 1990. There were no subsequent approvals by the Attorney General’s office, and none for the time when the defendant-appellee’s calls were intercepted.

Under the holding of Commonwealth v. Clark, supra, the Wiretap Act was not followed. The Attorney General could not rely on the State Police to ensure Dentici’s continued consent through the signing of consent forms. Therefore, the suppression court did not err when it suppressed the contents of the intercepted calls between Dentici and Spence.

The Commonwealth argues, however, that this issue was decided by the suppression court sua sponte and that it had not been raised previously in the defendant’s motion to suppress. The Commonwealth is in error. The defendant’s written motion asserted specifically that “[p]rior approval for the interceptions was not given as required by 18 Pa.C.S. § 5704(2)(ii).”

The more difficult issue is whether the suppression court properly suppressed as fruit of the unlawful interceptions evidence of the unintercepted telephone conversations of January 22, 1991 and the surveillance and search of appellee’s vehicle which occurred later the same day. The Act, it will be recalled, provides for the suppression not only of the contents of an unlawfully intercepted communication but also the “evidence derived therefrom.” 18 Pa.C.S. § 5721(a). Here, all the evidence obtained by police on January 22, 1991 was the result of telephone conversations previously intercepted unlawfully. Indeed, the events of that day had been orchestrated completely by telephone conversations made by an informant and intercepted by the police. Without the unlawfully intercepted telephone communications, not only would the police not have known of an illegal drug transaction but, in fact, there would have been no such transaction. Therefore, we reject the Commonwealth’s argument that the two calls of January 22, 1991 and the subsequent meeting of the principal actors at Kittanning later on the same day were independent of and would have been discovered irrespective of the unlawful interceptions. In short, the evidence obtained by police on January 22, 1991, was so closely connected, perhaps even intertwined, with the unlawful interceptions of earlier telephone conversations, that the suppression court could properly find that it clearly was fruit of the unlawful interceptions.

We take no delight in our decision. It may well be that a guilty purveyor of drugs will escape punishment. It is eminently clear, however, that the procedure prescribed by 18 Pa.C.S. § 5704(2)(ii) was not followed with respect to the interception of telephone conversations in which the defendant-appellee was a party. Therefore, the evidence obtained thereby and derived therefrom must be suppressed. The legislature, in order to preserve individual privacy, has mandated the result which the courts are now called upon to enforce. See: Commonwealth v. Brachbill, 520 Pa. 533, 548-549, 555 A.2d 82, 90 (1989).

Order affirmed.

HESTER, J., files a dissenting statement.

HESTER, Judge,

dissenting:

I respectfully dissent.

      . When the Commonwealth has certified that the suppression of evidence substantially handicaps the prosecution, "that certification is not contestable" and "in and of itself precipitates and authorizes the appeal."

        Commonwealth v. Parrella, 416 Pa.Super. 131, 136 n. 1, 610 A.2d 1006, 1008 n. 1 (1992), quoting Commonwealth v. Dugger, 506 Pa. 537, 545, 486 A.2d 382, 386 (1985).

      . Dentici had previously been arrested for selling drugs illegally and had agreed, in exchange for promises of leniency, to assist in the investigation.

      . The Act also provides that in certain other situations, law enforcement agencies may obtain a court order authorizing the interception of wire or oral communications without the consent of the parties. See: 18 Pa.C.S. § 5708.

      . The parties have not argued and we do not decide whether the warrantless seizure of marijuana from the trunk of appellee's vehicle was otherwise lawful.


author: WIEAND, Judge:

text:
    631 A.2d 671
    CRUM AND FORSTER PERSONAL INSURANCE COMPANY v. TRAVELERS CORPORATION and Eugene McDonald and Trudy McDonald, h/w, and Phillip Ellis. Appeal of Eugene McDONALD and Trudy McDonald, h/w.
    Superior Court of Pennsylvania.
    Argued April 27, 1993.
    Filed Sept. 29, 1993.

      Thomas J. Mettee, Philadelphia, for appellants.
    L. Rostaing Tharaud, Philadelphia, for Crum and Forster, appellee.
    Before CAVANAUGH, WIEAND and HOFFMAN, JJ.
   WIEAND, Judge:

In this declaratory judgment action to determine an issue of coverage, we are asked to interpret a policy provision which excludes coverage for a vehicle, other than the covered auto, which is “furnished or available for the regular use of any family member” of the named insured.

Eugene McDonald was seriously injured as a result of a collision between the vehicle which he was operating and a vehicle operated by Phillip Ellis. The vehicle being operated by Ellis was owned by his grandparents, Arlie and Dora Robson; it was insured under a policy issued by Travelers Corporation. At the time of the accident, Ellis was using the car to pick up his girlfriend’s children.

McDonald and his wife, Trudy, filed an action against Ellis, and gave notice to Crum and Forster Personal Insurance Company (Crum and Forster), which insured a vehicle owned by Ellis’s mother, Viola, that they were looking to Crum and Forster for excess coverage. Ellis lived with his mother but spent most of his days taking care of his grandfather, who was disabled, and his grandmother, who was deaf. In response to a request for admissions, he admitted that during the four years preceding the accident he had operated his grandparents’ car approximately five times a week.

The policy issued by Crum and Forster to Ellis’s mother provided coverage to the insured and members of her family while operating the insured vehicle or another vehicle, but subject to the following exclusion:

B. We do not provide Liability Coverage for the ownership, maintenance or use of:
2. Any vehicle, other than your covered auto, which is:
a. owned by you; or
b. furnished or available for your regular use.
3. Any vehicle, other than your covered auto, which is:
a. owned by any family member; or
b. furnished or available for the regular use of any family member.

On the basis of this clause and information that Ellis had regularly operated his grandparents’ vehicle, Crum and Forster commenced the present action seeking a declaratory judgment that the policy, which had been issued on the vehicle of Ellis’s mother, did not provide coverage for the accident which had occurred while Ellis was driving his grandparents’ car. The trial court, on motion, entered summary judgment in favor of Crum and Forster. The McDonalds appealed. After careful review, we affirm.

The purpose of the pertinent policy language was to provide coverage to the insured or members of her family while engaged in casual or infrequent use of a vehicle other than the one described in the policy, but not to cover the insured or members of her family with respect to another vehicle which he or she used or had the opportunity to use frequently. The policy language thus prevents the situation in which members of one household may have two vehicles which they can use interchangeably while insuring only one of them. Volpe v. Prudential Property & Casualty Ins. Co., 802 F.2d 1, 3 (1st Cir.1986); Aler v. Travelers Indemnity Co., 92 F.Supp. 620, 623 (D.Md.1950); Coombs v. Lumbermen’s Mut. Cas. Co., 23 Ariz.App. 207, 531 P.2d 1145 (1975). As Judge Ditter said in Johnson v. Braunsberg, 51 Pa.D. & C.2d 659 (1970):

The clause in question represents an attempt on the part of the insurance company to strike a balance between the desire of the insured to be covered, even though not using his own car, and its own right to receive payment of premiums based upon the risk presented by the number of automobiles operated. It is generally held that such a clause covers the insured during infrequent or casual use of a nonowned automobile, but excludes coverage as to another’s automobile which the policyholder frequently uses or has the opportunity to use: American Casualty Co. v. Lattanzio, 78 N.J.Super.Ct. 404, 188 A.2d 637 (1963); Annotation, 173 A.L.R. 901, 86 A.L.R.2d 937.

Id. at 661. See also: Kieffer v. Nationwide Mut. Ins. Company, 7 Pa.D. & C.3d 293, 298 (1978). Or, as the Court said in Highlands Ins. Co. v. Universal Underwriters Ins. Co., 92 Cal.App.3d 171, 176, 154 Cal.Rptr. 683, 687 (1979), the exclusion prevents “abuse by precluding the insured and his family from regularly driving two or more cars for the price of one policy.” See also: Jenkins v. Aetna Casualty & Surety Co., 324 N.C. 394, 378 S.E.2d 773 (1989).

The exclusionary language is not ambiguous, Federal Kemper Ins. Co. v. Ward, 679 F.Supp. 489 (E.D.Pa.1988), aff'd, 860 F.2d 1074 (3d Cir.1988), and must be given its ordinary meaning. Beverly v. Midwestern Indemnity Co., 60 Ohio App.3d 139, 141, 573 N.E.2d 1221, 1222 (1989). “The words ‘regular use’ suggest a principal use as distinguished from a casual or incidental use, and such a regular use is not covered.” 6C Appleman, Insurance Law and Practice, § 4455, p. 558. See: Allstate Ins. Co. v. Humphrey, 246 Md. 492, 497-498, 229 A.2d 70, 73 (1967). “Regular use” means “habitual use” as opposed to occasional or incidental use. Kenilworth Ins. Co. v. Cole, 587 S.W.2d 93 (Mo.App.1979).

Under the language in the instant policy, it is not only “regular use” which is determinative of the applicability of the exclusion. The vehicle must be “furnished or available” for regular use by the family member. This implies an understanding with the owner of the vehicle that the family member of the named insured could use the automobile of the other person at such times as he or she desired, if available. Benjamin v. Plains Ins. Co., 500 F.Supp. 919 (D.C.Tex.1980), aff'd, 650 F.2d 98 (5th Cir.1981). See also: 6C Appleman, Insurance Law and Practice, § 4455, pp. 563-564. Such an understanding may be shown by direct or circumstantial evidence.

Although it is not the use of ambiguous language which causes court’s to disagree about the meaning of the exclusionary language, “[c]ourts struggle with its application because each case must be decided on its own facts and circumstances and therefore, its application is a struggle. Its meaning is not.” Central Security Mutual Ins. Co. v. DePinto, 9 Kan. App.2d 85, 87, 673 P.2d 122, 124 (1983), aff'd, 235 Kan. 331, 681 P.2d 15 (1984). See also: State Farm Mutual Auto. Ins. Co. v. Differding, 69 Ill.2d 103, 12 Ill.Dec. 739, 370 N.E.2d 543 (1977). “Whether a vehicle is covered, or whether it is excluded under a provision denying coverage where such vehicle is furnished for the insured’s (or family member’s) regular use, normally becomes a jury question.” 6C Apple-man, Insurance Law and Practice, § 4455, p. 565. Where the facts are not in dispute, however, and reasonable minds cannot differ regarding the result, the issue of coverage can be decided as a matter of law by the court.

This is such a case. Here, the family member of the insured formally admitted that he had driven the car owned by his grandparents on an average of five times per week for and during the entire four years preceding the accident. Because his grandfather had been disabled, his grandmother was deaf, and both required regular care, the grandson provided care for them on an almost daily basis. He also used his grandparents’ car on a regular basis. When he did so, insurance coverage was provided by Travelers, which insured the grandparents’ vehicle. He was excluded, however, from the coverage provided by Crum and Forster on the vehicle owned by Ellis’s mother, with whom he resided, because his grandparents’ vehicle was furnished and available to him for regular use. For him to be covered under his mother’s policy while regularly driving his grandparents’ car required the payment of an additional premium.

Although a similar issue has not previously been before the appellate courts of this state, our holding is consistent with several trial court decisions. In Kieffer v. Nationwide Mut. Ins. Co., supra, the court found that coverage was excluded for an insured while she was operating her daughter’s car, which, together with the daughter’s keys and registration card, had been made available to members of the family, with whom the daughter resided, for use whenever they pleased. And in Federal Kemper Ins. Co. v. Ward, supra, the federal court for the Eastern District of Pennsylvania determined that coverage was excluded for an insured while using his fiancee’s truck. In that case, the insured had contributed to the purchase price of the vehicle, had his own set of keys, had access to the vehicle whenever he pleased, and used the vehicle regularly to go to work, to take his fiancee to work and for personal errands. In these cases, as here, the non-insured vehicle was furnished or available on a regular basis to a member of the insured’s family or one maintaining a special relationship to the insured.

The order entering summary judgment is affirmed.

      . We are advised that this action was settled by Travelers for policy limits of one hundred thousand ($100,000.00) dollars.

      . Neither Ellis nor Travelers joined the appeal or filed a brief.

      . Compare: Johnson v. Braunsberg, supra, where the trial court declined to apply a "regular use” exclusion to a situation in which the insured's brother, a serviceman, had left his vehicle with the insured to sell, but where there was no evidence to indicate the frequency or regularity of the insured’s use of the vehicle.


author: WIEAND, Judge.

text:
    631 A.2d 674
    Phyllis BUCKNO, Appellant, v. PENN LINEN & UNIFORM SERVICE, INC., Appellee.
    Superior Court of Pennsylvania.
    Argued May 19, 1993.
    Filed Sept. 28, 1993.

      Robert Pandaleon, Allentown, for appellant.
    Stephen A. Bergstein, Allentown, for appellee.
    Before WIEAND, CIRILLO and CERCONE, JJ.
   WIEAND, Judge.

Phyllis Buckno has appealed from an order entered by the Court of Common Pleas of Lehigh County which granted defendant-appellee’s motion for summary judgment. After a careful review of the record and applicable law, we affirm.

Buckno from birth has suffered from epilepsy. After graduation from high school in 1968, she was hired by Penn Linen & Uniform Service, Inc. (“Penn Linen”), as a general laborer. She worked in that capacity for eighteen (18) years until 1986. On July 25th of that year Buckno’s employment was terminated by Penn Linen because she was unable to perform satisfactorily according to company standards the job duties which had been assigned to her.

On July 13, 1990, appellant-Buckno filed a civil complaint against Penn Linen, alleging that she had been discharged because of invidious discrimination in violation of her rights under the Pennsylvania Human Relations Act of October 27, 1955, P.L. 744, No. 222, 43 P.S. Section 951, et seq. The complaint requested damages for the loss of past and future wages and fringe benefits as well as damages for mental anguish, sleeplessness, loss of reputation and humiliation. After the pleadings had been closed and discovery completed, Penn Linen filed a motion for summary judgment. When the trial court, on April 10, 1992, entered summary judgment in favor of Penn Linen, Buckno appealed.

Summary judgment is proper if the moving party can demonstrate that there is no genuine issue of material fact and that such party is entitled to judgment as a matter of law. Carns v. Yingling, 406 Pa.Super. 279, 282, 594 A.2d 337, 339 (1991); Mariscotti v. Tinari, 335 Pa.Super. 599, 601, 485 A.2d 56, 57 (1984). In deciding whether to grant a motion for summary judgment, the court must examine the record in the light most favorable to the non-moving party, and all doubts must be resolved against the moving party. Hayward v. Medical Center of Beaver County, 530 Pa. 320, 324, 608 A.2d 1040, 1042 (1992). “An entry of summary judgment may be granted only in cases where the right is clear and free of doubt.” Musser v. Vilsmeier Auction Co., Inc., 522 Pa. 367, 370, 562 A.2d 279, 280 (1989). See also: Roselli v. General Elec. Co., 410 Pa.Super. 223, 226, 599 A.2d 685, 687 (1991). A party seeking to avoid the entry of summary judgment against him or her may not merely rest on averments in the pleadings. The party must show that there is a genuine issue for trial once a properly supported summary judgment motion confronts him or her. See: Washington Fed. Sav. & Loan Ass’n v. Stein, 357 Pa.Super. 286, 289, 515 A.2d 980, 981 (1986).

The cause of action in this case was filed under provisions of the Pennsylvania Human Relations Act which provide legal recourse when employment is terminated because of discrimination based upon an individual’s physical handicap. Under the statute, a claimant bears the initial burden of establishing a prima facie case that he or she was discharged from employment because of a handicap. See: Civil Service Comm’n v. Commonwealth, Human Relations Comm’n, 527 Pa. 315, 318, 591 A.2d 281, 282 (1991). However, the statute does not have application to prevent the discharge of an employee who has suffered a handicap which is job related, that is, a handicap which substantially interferes with the employee’s ability to perform essential functions of his or her employment. See: 43 P.S. § 955(a) and § 954(p). See also: Jenks v. Avco Corp., 340 Pa.Super. 542, 548, 490 A.2d 912, 915 (1985). Nevertheless, an employer must make reasonable accommodations to permit an employee to perform the job at hand. See: Jenks v. Avco Corp., supra at 550, 490 A.2d at 916. A “reasonable accommodation” is one which does not impose “an undue hardship on the employer.” Id.

On appeal, Buckno contends that material issues of fact exist as to whether her handicap was job related. Penn Linen, on the other hand, claims that the evidence is conclusive that either Buckno’s epilepsy or the medication which she takes to control her epilepsy leaves Buckno unable to perform the essential functions of her job with the alacrity at which and in the quantity which other employees are able to perform and which an employer is entitled to expect. The trial court concluded that Buckno’s handicap was such that it prevented her from performing the essential functions of her job, despite accommodations which had been attempted by Penn Linen, and despite Buckno’s best efforts. Therefore, the trial court concluded that Buckno’s handicap was job related and that Penn Linen had a legitimate reason for terminating her employment. We agree.

The record discloses that Penn Linen is a textile processing company which launders industrial garments and rents linens to hospitals, hotels, barber shops and similar businesses. In deposition testimony, Buckno testified that as early as 1977 she was told by a supervisor that she was working too slowly. In time, she admitted, she too became aware that she was working too slowly. She was then moved to a part of the plant where a conveyer belt system was utilized. Here, too, she recognized that her output was not as great as that of her co-workers. Buckno testified that generally she could only produce sixty-five percent of the quota set for the employees, while other employees were able to complete ninety percent. No other employee was consistently producing sixty-five percent or less of the quota. Buckno admitted that she knew that output figures were important to her job; and, therefore, she would frequently compare her numbers with the numbers of others. The comparison upset her, she said, because despite her best efforts her figures were not impressive.

Despite company attempts to allow Buckno to become a productive employee, this was never realized. She was given opportunities to try various jobs at the plant, but her work was always either substandard or too slow. Buckno was permitted to work at some of these jobs for significant periods of time, but it was clear that she was not performing as well as or in the quantity as other employees were performing. The explanation given for her lack of productivity was that the medication she was required to take for her epilepsy caused drowsiness, impaired her ability to remember and concentrate, slowed motor functions, and interrupted coordination.

Given the record and appellant’s admissions, it is clear that Buckno’s epilepsy was job related in that it substantially impaired her job performance. See, e.g.: School District of Phila. v. Friedman, 96 Pa.Commw. 267, 276, 507 A.2d 882, 886 (1986); Laws v. Commonwealth, 50 Pa.Commw. 340, 345, 412 A.2d 1377, 1380 (1980). Despite substantial employer efforts to accommodate her subpar performance, the lack of improvement eventually resulted in her being discharged. Thus, even though she may have given her best efforts, it is clear that her job performance was substandard. Under these circumstances, discharge will not support a cause of action under the Pennsylvania Human Relations Act. The trial court properly entered summary judgment in favor of the employer, which had good cause for the discharge.

Order affirmed.