author: HESTER, Judge.

text:
    622 A.2d 347
    Lorrie GOSS, Appellant, v. Randall L. TIMBLIN.
    Superior Court of Pennsylvania.
    Submitted Nov. 16, 1992.
    Filed March 12, 1993.

      Mary Jo Dillon, Butler, for appellant.
    Marilyn J. Horan, Butler, for appellee.
    Before CIRILLO, TAMILIA and HESTER, JJ.
   HESTER, Judge.

Lorrie Goss appeals from the April 21, 1992 order entered by the Court of Common Pleas of Butler County in this support action. She formerly was married to Randall Timblin, appellee, and has remarried since the divorce. Appellant sought an increase in support to pay for the post-secondary educational expenses of Jeison, the parties’ youngest child, who lives with appellant. The parties executed a separation agreement on November 7, 1984, in which they agreed, “Both parties shall assist the children to obtain a college education to the best of their then financial ability.” The trial court ordered appellee to pay $175.00 per month for Jeison’s tuition and expenses. Appellant argues that the trial court erred in calculating Jeison’s educational expenses by not specifically considering her contribution to Jeison’s room and board and by reducing Jeison’s anticipated educational costs by deducting an amount equal to a loan that she obtained to pay for Jeison’s tuition. We agree and reverse and remand.

The record reveals the following. The parties were married on June 1, 1970, in Butler, Pennsylvania. They separated in February, 1982, and divorced on November 4, 1984. Two children were born of the marriage, Randall Jr., born October 10, 1970, and Jeison, born December 17, 1972. Both parties since have remarried, and appellee has a six-year-old daughter by his current wife. Both Randall Jr. and Jeison have attained their majority and reside with appellant. However, since Randall Jr. has not pursued higher education, we are concerned only with support for Jeison.

Jeison, who is over eighteen, chose to attend the Art Institute of Pittsburgh for training in the graphic arts. He anticipates earning an associate degree in visual communications in two years instead of three. In the parties’ separation agreement, appellee agreed to assist the children to obtain a college education to the best of his financial ability “at that time.” Appellant filed a petition for increased support to pay for Jeison’s college expenses in June, 1991. The trial court adopted the master’s findings with respect to the income and expenses of the parties but reduced appellee’s obligation from $350 to $175 per month. Appellant filed this appeal contending that this amount is inadequate and that the court erred in its calculations.

Appellee is employed at Measuray Corporation as an operations manager and nets approximately $3,350 per month. His claimed expenses include $1,929 for mortgage and property taxes, $240 for utilities, $130 for insurance, $220 for automobile expenses, $600 for food, $112 for medical expenses, and $320 for child care. This totals $3,551 per month. Thus, his expenses currently exceed his income.

Appellant is a claim analyst at Nationwide Insurance Company and nets approximately $1,327 per month. Appellant’s monthly expenses include $395 for mortgage, $260 for utilities, $300 for food, and $94 for health insurance. Her monthly expenses total $1,049, which leaves approximately $278 per month of income unallocated. Jeison works part-time at Friedman’s Supermarket earning at $4.25 per hour or approximately $85 per week. His earnings since have risen slightly due to a pay raise.

Jeison’s academic program lasts eight quarters, and he will earn an associate’s degree. The program normally is completed in three years, with the summers free. Jeison, however, wants to complete the program in two years by continuing school during the summer. He hopes this faster pace will permit him to continue his education by obtaining a bachelors degree. He lives with appellant at home and commutes to school in a Volkswagen, which he owns and maintains. Jeison to date has done very well in this program.

The trial court calculated that the amount of tuition not covered by loans equalled $1,530 the first year, $1,200 the second, and none for the third year, or a total of $2,730. The court then added $3,510 for additional mandated costs for art supplies. It added these two figures together to calculate a total of $6,250 not met by the previously-approved loans. The court then divided this sum by thirty-six months and set appellee’s support obligation at $175 per month. It also found that Jeison was earning enough to pay for his own transportation, food, and lodging. It finally concluded that $175 per month would not burden appellee unduly.

We initially note that appellee specifically agreed to contribute to the costs of Jeison’s education. In Blue v. Blue, 532 Pa. 521, 616 A.2d 628 (1992), our Supreme Court overruled prior case law propounded by this court and determined that there is no obligation by parents to contribute to the post-secondary educational expenses of a child in Pennsylvania, absent enactment of such a duty by our legislature. Since appellant specifically agreed in the separation agreement to contribute to college education to the best of his financial ability, however, the resolution of this case becomes a matter of interpretation of language set forth in the separation agreement in accordance with principals of contract law. See Trunkwalter v. Truckwalter, 421 Pa.Super. 308, 309-311, 617 A.2d 1308, 1309 (1992) (provision to pay for higher education in a settlement agreement is enforceable on its own terms even absent a legal duty to do so).

It is well-established that a settlement agreement between a husband and wife in Pennsylvania is governed by the law of contracts unless the agreement states otherwise. Brower v. Brower, 413 Pa.Super. 48, 56, 604 A.2d 726, 730 (1992). See also De Witt v. Kaiser, 335 Pa.Super. 258, 262, 484 A.2d 121, 123 (1984) (interpretation of contract terms are determined pursuant to the rules for contracts generally).

Our standard of review for contracts is clear. In PBS Coals, Inc. v. Burnham Coal Co., 384 Pa.Super. 323, 328, 558 A.2d 562, 564 (1989), we stated:

The paramount goal of contractual interpretation is to ascertain and give effect to the intent of the parties. Greene v. Oliver Reality, Inc., 363 Pa.Super. 534, 526 A.2d 1192 (1987). In determining the intent of the parties to a written agreement, the court looks to what they have clearly expressed, for the law does not assume that the language of the contract was chosen carelessly. Daniels v. Bethlehem Mines Corp., 391 Pa. 195, 137 A.2d 304 (1958).

Instantly, the sole issue before the trial court was the determination of the ability of both parties to contribute to Jeison’s educational needs. “In the absence of fraud, mistake, overreaching or the like, it is not the function of the court to redraft a contract to be more favorable to a given party than the agreement which that party chose to enter.” Id. In interpreting the separation agreement, the court is not to insert language not placed there by the parties. Daniels v. Bethlehem Mines, supra. Consequently, the court’s role was to establish what amount represented the most the parties reasonably agreed they could contribute in relation to their financial ability.

Appellant first argues that the trial court erred in its calculation of Jeison’s educational costs in that it incorrectly determined the amount of Jeison’s expenses for education. She contends that the costs should include expenses for room, board, necessary transportation, and medical insurance, which are all necessary adjunct expenses of his education. Specifically, appellant asserts that Jeison will incur transportation costs over the next two years in lieu of boarding at school. During the same period, appellant asserts she will incur costs of $7,640 to provide room and board for Jeison to live at home in lieu of the expense of his boarding at school. She obtained this figure by dividing her expenses per year by three people (herself and her two children). In addition, appellant contends that while the yearly cost of Jeison’s health insurance and eye exams are borne by her, Jeison would bear this cost if he were not in school and working. Appellant asserts that these expenses, which exceed $13,000, should have been included by the court in the total cost of Jeison’s education, which the court utilized to determine the amount of appellee’s support. She thus contends that appellee should pay more in accordance with the provisions of their separation agreement.

Appellant relies upon Deiley v. Deiley, 281 Pa.Super. 288, 422 A.2d 172 (1980), for the proposition that it is appropriate to include the costs of room and board within the costs of an education. In Deiley, a daughter attended Georgetown University, and we found that the costs of room and board properly were included in the total expenses deemed appropriate in setting the amount of support. Appellant argues that room and board equally were appropriate considerations in this case since they were necessary for Jeison successfully to complete his program. She asserts it does not matter that these costs were not incurred separately at the school, since they still were necessary.

We reject the assertion that equivalent imputed costs of room and board at school should be included. However, we do agree with appellant that it is appropriate to include within the cost of Jeison obtaining his college education all the additional expenses incurred by appellant on his behalf that she otherwise would not have paid if Jeison were working. These expenses would include extra food, increased utilities, medical insurance, and commuting costs. These are necessary adjunct expenses required in order for Jeison successfully to complete his program. Consequently, we direct the trial court on remand to add these expenses to its determination of Jeison’s educational costs.

Next, appellant argues that the trial court improperly deducted a Parent Plus Loan in the amount of $3,880 incurred by her to pay for Jeison’s expenses before calculating unmet expenses. The trial court subtracted this loan, together with Jeison’s Stafford student loans to determine what costs were not met and therefore, what level of support would be required from appellee. In effect, she asserts, inclusion of this loan in Jeison’s resources improperly lowered the cost of education to which appellee should contribute.

We agree that these expenses should be included in the cost of Jeison’s education. As noted previously, our focus is the cost of Jeison’s education and appellant’s contractual agreement to contribute to its payment. Accordingly, we hold the trial court may not subtract a loan for which appellant is responsible from a determination of the college costs to which both parties have obligated themselves to contribute.

Finally, we agree with appellant that the court erred in calculating appellee’s obligation by dividing the unmet expenses over a three year period instead of two years. Jeison’s program of study will expire in two years. That other students may take three years to complete the program is immaterial. The educational expenses will be incurred in a two-year period and the obligation for payment endures for two years. There is no basis to extend the obligation to pay beyond that time.

Order reversed and remanded. Jurisdiction relinquished.

      . We note with interest the fact that appellee has incurred significant financial obligations since he agreed contractually to provide college support for his child. While the trial court looked at appellee’s reasonable expenses in terms of present obligations, we believe that care must be taken that litigants do not effectively void their contractual obligation to provide college support by their subsequent, voluntary assumption of consumer debt.
      Certainly, a party's ability to help with college must be viewed in the context of his available resources and financial ability. However, appellee’s present expenses indicate that he enjoys a substantially better lifestyle now than he did when the parties divorced. His mortgage is nearly five times that of appellant. Yet, appellee wants to reduce his responsibility to provide college to his child by using the debt voluntarily incurred to underwrite this better lifestyle.
      A party cannot be permitted to incur what are lavish or unreasonable expenses when viewed in context of how the party lived when the contract was signed and then use those expenses as an offset to his financial obligation to pay for college. If this is permitted, people routinely will be able to avoid their contractual obligation to provide college assistance by making unreasonable purchases. A party should not become impoverished to pay for college; however, a party should not intentionally incur debt to purchase a large house and other consumer goods but then contest his obligation to assume debt to finance college for a child when the party agreed to pay for college. This should not be permitted under general contract principles which provide that the reasonable expectations of the parties at the time the contract is signed must be fulfilled.

      . It is apparent the trial court considered the contributions made by Jeison and appellant by first subtracting the loans and Jeison's part-time income from the total costs since appellee was obligated to pay the full amount remaining. However, this method makes it difficult to quantify the respective contributions of the parties. As appellee did not appeal the support order, this issue is not before us but should be


source: Caselaw Access Project

author: BECK, Judge. CIRILLO, Judge,

license: Public Domain

text:
    622 A.2d 351
    In the Interest of J.H. Appeal of J.H.
    Superior Court of Pennsylvania.
    Argued Jan. 6, 1993.
    Filed March 22, 1993.

      Sarah Kerr, Philadelphia, for appellant.
    Anthony Pomerantz, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before CIRILLO, BECK and KELLY, JJ.
   BECK, Judge.

This is an appeal from an Order of Commitment entered in Juvenile Court in Philadelphia County. Appellant asserts that the trial court erred in denying his motion to suppress. We agree and so reverse.

On October 21, 1991, police were contacted by a woman claiming to have information about a murder that occurred two days earlier on October 19, 1991. Two officers were dispatched to interview the woman, who informed them that five minutes earlier at a certain address, she saw a dark-complected black male who may have been involved in the murder. She described the male as approximately five-feet-seven-inches tall, wearing blue jeans and a peach jacket. The officers promptly went to the address, knocked on the door and got no answer. At that moment, they saw a black male in a peach jacket and blue jeans (appellant) walking toward them. They immediately searched appellant and found 45 vials of crack cocaine on his person. He was placed in handcuffs and transported to the Police Narcotics Division. He ultimately was found guilty of possession with intent to deliver.

Appellant asserts that the trial court erred in denying his motion to suppress. With respect to a trial court’s denial of suppression, we review only the court’s conclusions of law; in doing so we consider the prosecution’s evidence and any uncontradicted evidence offered by appellant. Commonwealth v. Woods, 404 Pa.Super. 432, 590 A.2d 1311, 1312, appeal denied, 528 Pa. 637, 598 A.2d 994 (1991).

The Commonwealth insists that based on the informant’s description, the police had probable cause to arrest appellant at the time they searched him; therefore, a complete search incident to arrest was proper. It is clear that in order for police to make a warrantless arrest, they must have probable cause; where probable cause to arrest does not exist, any evidence seized in a search incident to arrest must be suppressed. Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975, 981 (1982), cert. denied, 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1025 (1983). Probable cause is established when the facts and circumstances which are within the knowledge of the officer at the time of the arrest, and of which he has reasonably trustworthy information, are sufficient to warrant a person of reasonable caution to conclude that the suspect has committed a crime. Commonwealth v. Rodriguez, 526 Pa. 268, 585 A.2d 988, 990 (1991).

Our standard for determining the existence of probable cause is an analysis of the totality of the circumstances. Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921, 926 (1985) (citing Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983)). In the instant case, probable cause came from an informant’s tip. We must be satisfied that the tip was reliable and, therefore, assess the informant’s veracity as well as the basis for her knowledge in order to determine whether the officers had probable cause to arrest appellant. While the “totality” standard represents a loosening of the previously rigid, two-prong test for probable cause, the dual basis of knowledge and veracity prongs are still very much a part of our inquiry. Commonwealth v. Davis, 407 Pa.Super. 415, 595 A.2d 1216, 1219 (1991), appeal denied, 530 Pa. 630, 606 A.2d 900 (1992).

There are a number of ways to determine the reliability of an informant’s tip. We have been satisfied that an informant’s tip constitutes probable cause where police have been able to provide independent corroboration of the tip or where the informant previously provided police with accurate information of criminal activity, or where the informant himself participated in the criminal activity. See Commonwealth v. Ogborne, 410 Pa.Super. 164, 599 A.2d 656 (1991) (probable cause found where informant’s previous information was accurate and police corroborated tip), appeal denied, 530 Pa. 631, 606 A.2d 901; Commonwealth v. Carlisle, 348 Pa.Super. 96, 501 A.2d 664 (1985), aff'd, 517 Pa. 36, 534 A.2d 469 (1986) (probable cause established where informant engáged in criminal activity with accused, provided police with past information and there was independent corroboration).

In the instant case, the evidence does not support a finding of probable cause. Glaringly absent at the suppression hearing was any testimony regarding the basis of the informant’s knowledge. It was not claimed that she was an eyewitness to the crime or had information from an individual involved in the murder. Nor was there any testimony of the informant’s previous cooperation with the police. The Commonwealth cites Commonwealth v. Sudler, 496 Pa. 295, 436 A.2d 1376 (1981) and argues that because the tip was from an “average citizen,” police are entitled to rely on it. In Sudler, the informants were acquaintances of the accused to whom the accused admitted committing the crime. The acquaintances gave sworn statements to police. Id. at 299, 436 A.2d at 1377. There was no such testimony in the instant case.

Further, there was no independent investigation by the police to link appellant with the murder. The only evidence adduced at the hearing was that there was a question whether another individual, in addition to a suspect already in custody, was involved in the crime. The Commonwealth claims that the tip was “verified” by the officers because they found appellant, matching the informant’s description, in the area she described. It is this verification, the Commonwealth argues, that gave the officers probable cause. We disagree. A mere description of an individual, with nothing more, does not establish probable cause. This information, appellant’s clothing and location, does not support the reliability of the informant’s tip; it is information available to anyone and is not indicative of criminal conduct. See Commonwealth v. Edmunds, 526 Pa. 374, 382 n. 3, 586 A.2d 887, 891 n. 3 (1991) (citing United States v. Leon, 468 U.S. 897, 903 n. 2, 104 S.Ct. 3405, 3410 n. 2, 82 L.Ed.2d 677 (1984)).

In sum, the suppression court was presented with no evidence tending to prove that the information given to police was reasonably trustworthy. See Rodriguez, 526 Pa. at 272-73, 585 A.2d at 990. Accordingly, the evidence seized from appellant should have been suppressed.

Order reversed. Jurisdiction relinquished.

CIRRILLO, J., files a Dissenting Statement.

CIRILLO, Judge,

dissenting:

I respectfully dissent from the majority’s opinion. I have written extensively on the policy reasons for relaxing constitutional protections for juvenile court adjudication. See e.g. In the Interest of Davis, 377 Pa.Super. 46, 546 A.2d 1149 (1988) (Cirillo, P.J., dissenting). To reiterate, juvenile proceedings are unique because the goal is rehabilitation rather than punishment. Id. at 70, 546 A.2d at 1162. The juvenile justice system is best able to attain its goals by relaxing the full panoply of constitutional rights to which an adult would be entitled. The strict application of the suppression remedy for an unlawful search of a juvenile works against the rehabilitative opportunity afforded through juvenile adjudication.

Accordingly, I dissent.

      . The order denying suppression was not based on a search incident to arrest; indeed, the suppression court explicitly found that the police did not have probable cause to arrest. While we can affirm the ruling of a lower court on any basis, Commonwealth v. Terry, 513 Pa. 381, 404, 521 A.2d 398, 409, cert. denied, 482 U.S. 920, 107 S.Ct. 3198, 96 L.Ed.2d 685 (1987), we find no basis of support for the order in this case.

      . Prior to Gates, the Commonwealth had to satisfy the AguilarSpinelli test, which required a showing of both the basis for the informant's knowledge and independent facts establishing the informant's reliability. See Commonwealth v. Gray, 509 Pa. at 481, 503 A.2d at 924. Our supreme court adopted the Gates totality test because it was "more practical” and based on a common sense non-technical analysis. Id. at 484, 503 A.2d at 925.

      . At the suppression hearing, one of the officers testified as follows: It was a burglary, a rape, and a homicide and there was questions [sic] as to that complainant which, you know, I don’t want to reveal ... She had information that may have led us to believe that this other individual was involved in the homicide.
      It may be that the officer had information which could have proved the informant's reliability or revealed her basis of knowledge; if so, such information should have been presented to the suppression court. While our inquiry is guided by the facts and circumstances within the officer’s knowledge at the time of the arrest/search, we are aware of only those facts and circumstances to which the officer testifies.

      . The facts of this case are readily distinguished from Commonwealth v. Langana, 503 A.2d 921 (Pa.1988). In Langana, the accused was present at the location to which the officer was directed. In addition, the accused was observed "casing a business establishment with a pair of binoculars in the pouring rain.” Id. at 1354. The court found that the "suspicious conduct under the circumstances, taken as a whole, suggested that the [accused] was involved in criminal activity” and, therefore, the officer possessed reasonable suspicion to conduct a frisk for weapons under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Id. (emphasis supplied).

      . We need not consider whether the officers had information sufficient to establish reasonable suspicion for an investigatory stop and limited search under Terry v. Ohio, supra. A valid Terry stop would have authorized a pat down of appellant for weapons to insure the officers’ safety. Here, however, the officer testified explicitly that he did not conduct a pat down for weapons, but searched appellant "completely.”


author: POPOVICH, Judge.

text:
    622 A.2d 355
    Michael J. KRAJSA, Appellant, v. KEYPUNCH, INC., Diane Colfer, Robert B. Colfer, Appellees.
    Superior Court of Pennsylvania.
    Argued Jan. 27, 1993.
    Filed March 22, 1993.

      Donald E. Wieand, Jr., Allentown, for appellant.
    Mark Malkames, Allentown, for appellees.
    Before McEWEN, POPOVICH and BROSKY, JJ.
   POPOVICH, Judge.

This is an appeal from the judgment of the Court of Common Pleas of Lehigh County in a wrongful discharge case. Upon review, we affirm.

On January 17, 1989, appellant, Michael J. Krajsa filed a complaint against Keypunch, Inc., Diane Colfer, Robert B. Colfer and David Jordan (hereinafter collectively referred to as “appellees”). In the complaint, appellant avers that his termination of employment with appellees was “intentional, wrongful and without justification” and “retaliatory in nature and for the purpose and intent of harming [appellant]”. Appellant’s Complaint p. 4. To support his contentions, appellant pleads facts which suggest that appellees were violating their contracts with governmental and private parties by over billing them for work actually performed, and his job was terminated as a result of his “expressed willingness to advise proper authorities of [appellees’] unlawful business practices.” Appellant’s Complaint pp. 3-4. Appellant’s amended complaint, filed March 20, 1989, reiterates verbatim those contentions and accompanying facts. Appellant’s Amended Complaint pp. 3-4.

On June 23, 1989, the lower court entered an order which denied appellees’ preliminary objections to appellant’s complaint. The lower court implicitly held that appellant’s complaint had set forth a wrongful discharge cause of action on public policy grounds. Because of numerous pre-trial motions and conferences, the case was not called for trial until January 6, 1992.

At the trial, both parties presented their opening arguments, and appellant was then called as the first witness. Appellant began offering evidence regarding his wrongful discharge when appellees objected. The jury was recessed, and the trial court, after argument from both sides, sustained appellees’ objections, and ruled that any testimony pertaining to the wrongful discharge claim was irrelevant on the basis that no cause of action existed. The court below, however, determined that the appellant had a viable claim for unpaid commissions and allowed the trial to proceed on that action. Ultimately, the jury found that a contract existed between the parties, but that appellant was not entitled to the commissions. Trial Court Opinion, p. 2.

Appellant then filed post trial motions which were denied by the lower court. On appeal, appellant contends that a cause of action for wrongful discharge existed, and thus the evidence regarding this claim was improperly excluded at trial. Appellant further argues that his claim for unpaid commissions was prejudiced by exclusion of the evidence of wrongful discharge, and that his ability to impeach appellee, Colfer, was severely hampered. Appellant requests a new trial on the basis that the lower court acted without authority by essentially entering an involuntary nonsuit as to his wrongful discharge claim.

Contrary to appellant’s position, we find that he lacks a cause of action for wrongful discharge on both procedural and substantive grounds. Consequently, the above mentioned arguments, which are contingent upon the existence of that claim, are without merit.

Appellant argues that there are two recognized bases for a claim of wrongful discharge in at-will employment relationships: First, when the termination threatens clear mandates of public policy; Second, when the discharge is based on specific intent to harm.

With respect to appellant’s wrongful discharge claim on the basis that it violates public policy, we hold that it fails both procedurally and substantively. Pennsylvania Rule of Civil Procedure 1019(a) provides that “[t]he material facts on which a cause of action or defense is based shall be stated in a concise and summary form.” It is not necessary that the plaintiff identify the specific legal theory underlying the complaint. Burnside v. Abbott Laboratories, 351 Pa.Super. 264, 276, 505 A.2d 973, 980 (1985); Weiss v. Equibank, 313 Pa.Super. 446, 453, 460 A.2d 271, 275 (1983). Pa.R.C.P. 1019(a) has been construed to mean that the complaint must not only apprise the defendant of the claim being asserted, but it must also summarize the essential facts to support the claim. Dickerson v. Brind Truck Leasing, 362 Pa.Super. 341, 524 A.2d 908, 910 (1987); Burnside, 351 Pa.Super. at 276, 505 A.2d at 980; Weiss, 313 Pa.Super. at 451, 460 A.2d at pp. 274-75; Alpha Tau Omega Fraternity v. University of Pennsylvania, 318 Pa.Super. 293, 298, 464 A.2d 1349, 1352 (1983). We recognize the proposition that the Rules of Civil Procedure are to be liberally interpreted. See, Pa.R.C.P. 126. “However, liberal construction does not entail total disregard of those rules concerning pleading.” Duquesne Light Co. v. U.S. Indus. Fabricators, 334 Pa.Super. 444, 447, 483 A.2d 534, 536 (1984).

A purpose behind the rules of pleading is to enable parties to ascertain, by utilizing their own professional discretion, the claims and defenses that are asserted in the case. This purpose would be thwarted if courts, rather than the parties, were burdened with the responsibility of deciphering the cause of action from a pleading of facts which obscurely support the claim in question. Parties ought not be allowed to delegate their duties under the Rules of Civil Procedure to our courts.

After carefully examining appellant’s complaint, we find that the facts pleaded are insufficient to support a claim for wrongful discharge on public policy grounds. In the complaint, appellant avers that appellees were engaged in unlawful activity by inflating their bills to contractual parties, and that appellant’s job was terminated for informing appellees that he would report their conduct to proper authorities. His complaint is structured with those facts immediately preceding these statements:

The termination of [appellant’s] employment with [appellees] was intentional, wrongful and without justification. The termination of [appellant’s] employment was retaliatory in nature and for the purpose and intent of harming [appellant], all as a result of [appellant’s] expressed willingness to advise proper authorities of [appellees’] unlawful business practices.

Appellant’s Complaint p. 4.

In its June 23, 1989, ruling of appellees’ preliminary objections, the lower court determined that a dismissal resulting from an attempt to correct illegal business activities would “strike at the heart of a citizen’s social right, duty and responsibility.” (citation omitted). It implicitly ruled that appellant had set forth facts in his complaint to support a claim for wrongful discharge on public policy grounds. Trial Court’s Order of June 23, 1989 p. 3. Courts have a duty to discover from the facts alleged in a complaint the cause of action, if any, stated therein. Burnside, 351 Pa.Super. at 276, 505 A.2d at 980. Even though we embrace this responsibility, for reasons already discussed, we reject the notion that parties should thereby be relieved of their own duties under the Rules of Civil Procedure. When reading words, such as, “intentional,” “wrongful,” and “for the purpose of harming” in conjunction with the averments, we conclude that appellant has failed to plead a cause of action for wrongful discharge on public policy grounds. Instead, we find that this language warrants a claim for wrongful discharge solely on the basis of a specific intent to harm. Although appellees may have been on notice of an assertion of public policy due to the lower court’s pretrial order, “[appellant] cannot escape [his duty under Pa. R.C.P. 1019(a) ] by a general averment that the facts are in the possession of the defendant.” Id., 351 Pa.Super. at 276, 505 A.2d at 980.

Even assuming that appellant satisfied Pa.R.C.P. 1019(a) with respect to his public policy argument, it would be to no avail for substantive reasons. As a general rule, there is no common law cause of action against an employer for termination of an at-will employment relationship. Paul v. Lankenau Hospital, 524 Pa. 90, 93, 569 A.2d 346, 348 (1990); Clay v. Advanced Computer Applications, Inc., 522 Pa. 86, 88, 559 A.2d 917, 918 (1989); Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974). An at-will employee may be terminated for good reason, bad reason, or no reason at all. Yetter v. Ward Trucking Corp., 401 Pa.Super. 467, 585 A.2d 1022, 1025 (1991), appeal denied, 529 Pa. 623, 600 A.2d 539 (1991); Hershberger v. Jersey Shore Steel Co., 394 Pa.Super. 363, 366, 575 A.2d 944, 946 (1990) appeal denied, 527 Pa. 601, 589 A.2d 691 (1991). “Exceptions to this rule have been recognized in only the most limited of circumstances, where discharges of at-will employees would threaten clear mandates of public policy.” Clay, 522 Pa. at 88, 559 A.2d at 918. See Paul, 524 Pa. at 93, 569 A.2d at 348; Yetter, 401 Pa.Super. at 471, 585 A.2d at 1025; Hershberger, 394 Pa.Super. at 366, 575 A.2d at 946.

After scrutinizing the facts before us, we find that no clear mandate of public policy has been threatened nor violated. In Cisco v. United Parcel Services, Inc., 328 Pa.Super. 300, 306, 476 A.2d 1340, 1343 (1984), this Court noted:

The sources of public policy [which may limit the employer’s right of discharge] include legislation; administrative rules, regulation, or decision; and judicial decision. In certain instances, a professional code of ethics may contain an expression of public policy ... Absent legislation, the judiciary must define the cause of action in case-by-case determinations.

Id. citing Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 72, 417 A.2d 505, 512 (1980). Appellant contends that courts can make case-by-case determinations of whether a public policy is implicated when there is no piece of legislation directly on point. However, our Supreme Court’s decisions in Clay and Paul, preclude us from undertaking the task of creating and forming public policy with respect to wrongful discharge on our own initiative. Instead, in order to find a cause of action for wrongful discharge in at-will employment relationships, the discharge must threaten or violate a .clear mandate of public policy.

Our review of cases regarding this cause of action reveals that our courts have found a clear mandate of public policy threatened on only three occasions. Field v. Philadelphia Electric Co., 388 Pa.Super. 400, 565 A.2d 1170 (1989) (violation of public policy where discharge was based on performance of duty to report nuclear safety violations under federal statute); Hunter v. Port Authority, 277 Pa.Super. 4, 419 A.2d 631 (1980) (violation of the Pennsylvania Constitution to deny public employment to a person on the basis of a prior conviction for which he has been pardoned); Reuther v. Fowler & Williams, Inc., 255 Pa.Super. 28, 386 A.2d 119 (1978) (under Pennsylvania law, a person is statutorily required to serve when called for jury duty for the purpose of having citizens available for trial, and thus a discharge for fulfilling this statutory duty is against public policy). In those cases where our courts recognized a violation of a clear mandate of public policy, the plaintiff demonstrated that a statute or constitution applied to his case and that the discharge resulted from his duty to act in accordance with that applicable law. Since appellant fails to show how any recognized law applies to his case, the instant case is distinguishable from those cases. Here, appellant alleges that appellees’ conduct violated a clear mandate of public policy pursuant to Pennsylvania’s WhistleBlower Law, 43 Pa.Stat.Ann. sec. 1421 et seq. (1986) (hereinafter “the Act”). However, after analyzing the language of the Act, we conclude that it is inapplicable to the facts in the instant case. The following sections of the Act are relevant to our examination:

Section 1423(a) Persons not to be discharged. — No employer may discharge, threaten or otherwise discriminate or retaliate against an employee regarding the employee’s compensation, terms, conditions, location or privileges of employment because the employee or a person acting on behalf of the employee makes a good faith report or is about to report, verbally or in writing, to the employer or appropriate authority an instance of wrongdoing or waste.
Section 1422 Definition
Employee — A person who performs a service for wages or other remuneration under a contract of hire, written or oral, express or implied, for a public body.
Employer — A person supervising one or more employees, including the employee in question; a superior of that supervisor; or an agent of a public body.
Public body — All of the following:
(1) A State officer, agency, department, division, bureau, board, commission, council, authority or other body in the executive branch of State government.
(2) A county, city, township, regional governing body, council, school district, special district or municipal corporation, or a board, department, commission, council or agency.
(3) Any other body which is created by Commonwealth or political subdivision authority or which is funded in any amount by or through Commonwealth or political subdivision authority or a member or employee of that body. The Act’s scope is limited to employees discharged from

governmental entities or any other body which is created or funded by the government. See Cohen v. Salick Health Care, Inc., 772 F.Supp. 1521 (E.D.Pa.1991) (corporation’s discharge of employee did not come -within public policy exception where corporation was not a public employer) on reconsideration, 1992 WL 7033 (E.D.Pa., Jan. 6, 1992) (initial order shall remain in full force and effect). Appellant was not employed by a public body but by Keypunch, Inc., a private company. There is no evidence to suggest that the company was created or funded by a political body. Although Keypunch, Inc. performed governmental contracts, this is not sufficient to invoke the application of the Act. We agree with the lower court which reasoned that the legislative branch restricted the language of the Act to “public” rather than “private” entities because “it may well have been concerned with opening up a flood of litigation between the millions of employers and their employees in the private sector.” Trial Court Opinion, p. 6. We are not prepared to expand the coverage of the Act into the private arena. Accordingly, we hold that appellant’s discharge does not come within the public policy exception to the employment at-will doctrine by virtue of the Act.

Appellant also contends that he has a claim for wrongful discharge based on specific intent to harm. Although in several cases prior to Clay and Paul this Court recognized a cause of action under the specific-intent-to-harm-theory, see Tourville v. Inter-Ocean Insurance Co., 353 Pa.Super. 53, 508 A.2d 1263 (1986), allocatur denied, 514 Pa. 619, 521 A.2d 933 (1987); Darlington v. General Electric, 350 Pa.Super. 183, 504 A.2d 306, 318 (1986), Clay and Paul clearly hold that the only exception to the employment at-will doctrine is where the discharge violates clear mandates of public policy. In order to survive a challenge of failure to state a cause of action, the complaint must establish the violation of public policy. Yetter, 401 Pa.Super. at 474, 585 A.2d at 1026. Applying the rule of Clay and progeny to the facts presented before us, we find that both bases of appellant’s claim for wrongful discharge lack substance. We, therefore, affirm the lower court’s decision which excluded evidence regarding this claim.

Because appellant’s wrongful discharge cause of action lacks sufficient substance, or, in the alternative, fails procedurally, his remaining arguments which are contingent upon that claim are without merit. Appellant’s sole basis for appealing the issue of unpaid commissions is that he was prejudiced by the lower court’s exclusion of the evidence pertaining to the claim for wrongful discharge. The lower court properly ruled in excluding that evidence, and thus we deny appellant’s request for a new trial on his claim for unpaid commissions. Similarly, the appellant argues that the exclusion of the evidence regarding the claim for wrongful discharge severely hampered his ability to impeach the credibility of the appellees. Even if appellant had a cause of action, he would have been precluded from introducing evidence of specific bad acts to impeach witnesses. See Butler v. Flo-Ron Vending Co., 383 Pa.Super. 633, 557 A.2d 730, appeal denied, 523 Pa. 646, 567 A.2d 650 (1989).

Accordingly, we deny appellant’s request for a new trial and affirm the judgment of the court below.

McEWEN, J., concurs in the result.

      . On August 20, 1990, upon stipulation and order, appellant’s case was discontinued as to David Jordan.

      . In that order, the court below found as follows:
      In short, the [appellant] alleges that his employer was conducting its business in an illegal manner and summarily dismissed the Plaintiff when he threatened to take action in an effort to stop the above-noted practice. We believe that these allegations are material and appropriate to the Plaintiff's cause of action. Certainly a dismissal resulting from an attempt to correct illegal business activities would “strike at the heart of a citizen’s social right, duty and responsibility.” (Citations omitted)

      . Our opinion addresses the substantive question of a wrongful discharge claim based upon a violation of public policy. As discussed, this cause of action is extremely limited.

      . In his concurring opinion in Clay, Chief Justice Nix reviewed the holding in Geary v. United States Steel, 456 Pa. 171, 319 A.2d 174 (1974) and concluded that a cause of action for wrongful discharge in an at-will employment relationship does not exist. 522 Pa. at 97, 559 A.2d at 923. The Chief Justice reasoned that "a wrongful discharge action would be inimical to the continued existence of at-will employment." Id. In Geary, our Supreme Court stated:
      The notion that substantive due process elevates an employer’s privilege of hiring and discharging his employees to an absolute constitutional right has long been discredited. But this case does not require us to define in comprehensive fashion the perimeters of this privilege, and we decline to do so. We hold only that where a complaint itself discloses a plausible and legitimate reason for terminating an at-will employment relationship and no clear mandate of public policy is violated thereby, an employee at will has no right of action against his employer for wrongful discharge.

        Geary at 184, 319 A.2d at 180 (footnote omitted). If we were to apply the Chief Justice’s interpretation of Geary to the instant case, appellant's cause of action for wrongful discharge on both public policy and intent to harm bases would clearly fail. However, we are inclined to follow the majority’s opinion in Clay and Paul, and our decisions in Yetter and Hershberger. In those cases, our courts ruled that a cause of action for wrongful discharge in an at-will employment relationship would be recognized in cases where the dismissal would threaten clear mandates of public policy.

      . Interestingly, the lower court in its order of June 23, 1989, determined that the appellant had a viable claim for wrongful discharge on public policy grounds. But, at trial in January, 1992, it found that this claim was without substance. The lower court may have changed its position due to fact that Clay, Paul, Hershberger, and Yetter had been decided in the interim.

      . The appellant also contends that the court below improperly granted an involuntary nonsuit as to his wrongful discharge claim. However, the lower court never acted upon a request for a nonsuit nor did it enter one. Trial Court Opinion, p. 3. Even if its decision to preclude the wrongful discharge claim had the effect of an involuntary nonsuit, as appellant alleges, we hold that it was procedurally harmless to appellant’s suit. The lower court found that appellant’s claim for wrongful discharge was without substance and correctly dismissed this action, irrespective of the fact that this finding was at the beginning of the trial.


author: CIRILLO, Judge:

text:
    622 A.2d 361
    COMMONWEALTH of Pennsylvania v. David SEIBERT, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 7, 1993.
    Filed March 24, 1993.

      Brian McMonagle, Philadelphia, for appellant.
    Karen A. Brancheau, Asst. Dist. Atty., Philadelphia, for Com. appellee.
    Before CIRILLO, BECK and KELLY, JJ.
   CIRILLO, Judge:

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Philadelphia County. We affirm.

Following a bench trial before the Honorable William J. Mazzola, appellant David Seibert was convicted of third-degree murder, recklessly endangering another person, and possession of controlled substances with intent to deliver. Post-trial motions were filed and denied. Seibert was sentenced to five to ten years imprisonment on the murder conviction, a concurrent term of one to two years imprisonment on the reckless endangerment conviction, and a concurrent term of seven years probation on the possession with intent to deliver conviction. Seibert filed a motion for reconsideration of sentence claiming his sentence was excessive and exceeded the guidelines. The motion was denied and this appeal followed. Seibert raises the following issues for our review:

1. Whether there is insufficient evidence of malice to sustain the third-degree murder conviction?
2. Whether the sentence of 7 years probation for a violation of 35 Pa.S. § 780-113(a)(3) is in excess of the five year maximum sentence authorized by 35 Pa.S. § 780-113(f)(2) and 42 Pa.C.S. § 9754, and must therefore be vacated?
3. Whether the imposition of a five-year mandatory sentence for an unintentional killing violates the intent of the legislature in enacting 42 Pa.C.S. § 9712 of the mandatory minimum sentencing act?
4. Whether there is insufficient evidence to sustain appellant’s conviction of recklessly endangering another person?
5. Whether there is insufficient evidence to sustain appellant’s conviction of possession with the intent to deliver marijuana?
6. Whether appellant was denied a fair trial because of the impartiality of the factfinder?

First, we note that issue four, five, and six were not raised in post-trial motions. These claims, therefore, are waived. See Pa.R.Crim.P. 1123(a); Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983). Further, the record indicates that after filing his appeal, Seibert was ordered to file a concise statement of matters complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). Seibert failed to comply with this directive.

Seibert’s first issue, concerning the sufficiency of the evidence of malice to sustain a conviction for third-degree murder, was properly raised in post-trial motions and has been preserved for appeal. Pa.R.Crim.P. 1123(a). In this claim, Seibert argues that the evidence was insufficient to establish malice, a necessary element of third-degree murder. The well-established standard for reviewing a sufficiency claim on appeal is

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

Commonwealth v. Griscavage, 512 Pa. 540, 543 517 A.2d 1256, 1257 (1986) (quoting Commonwealth v. Harper, 485 Pa. 572, 576-577, 403 A.2d 536, 538-539 (1979) (citations omitted)). The facts and circumstances established by the Commonwealth “need not be absolutely incompatible with [the] defendant’s innocence, but the question of any doubt is for the [fact finder] unless the evidence ‘be so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances.’ ” Commonwealth v. Sullivan, 472 Pa. 129, 150, 371 A.2d 468, 478 (1977) (quoting Commonwealth v. Libonati, 346 Pa. 504, 508, 31 A.2d 95, 97 (1943).

Seibert, then twenty-six years old, spent the evening of November 17, 1990 entertaining the teenage victim and four other youths, including Michael Sola, Robert Robinson, and Lisa Gold. During the evening, Seibert supplied his guests with beer, Valium and marijuana. Seibert also brandished a gun during the evening, repeatedly removing and replacing the ammunition clip, passing the gun around the room, and pointing it at his guests after having been asked not to do so. This went on for approximately fifteen minutes. Ultimately, Seibert’s destructive behavior led to the death of his friend, Keith Marigliano.

After placing the gun on a shelf in the living room and leaving it for a couple of hours, Seibert retrieved the gun, walked over to the victim, placed the gun at the victim’s head, and shot him. Sola testified to these events, stating: “[The defendant] had the gun pointed to Keith’s head and then I looked at them and I thought they were playing around and I just turned my head and the whole room flashed and I heard a pop.” Robinson also testified that he heard a shot and saw a flash of light. He then heard Seibert say: “I shot him. I can’t believe I shot him.”

Lisa Gold testified that she was seated on the victim’s lap at the time and that Seibert walked up to the victim and shot him in the head. Lisa Gold’s testimony also established that after the shooting, Seibert and his girlfriend were devising a plan to explain the victim’s death — that two intruders had broken into the apartment and killed the victim.

After the shooting, the front desk of Seibert’s apartment building was notified. Mr. George Alden, a security guard, was sent to Seibert’s apartment. Seibert answered the door and then telephoned for medical assistance. Mr. Alden testified that when asked what had occurred, Seibert responded that two intruders broke into his apartment and shot his friend.

The police arrived a short time later. Following a search of Seibert’s apartment, the officers recovered a semi-automatic handgun, a starter pistol, which was found on the roof of the apartment, a spent casing behind the chair on which the victim lay dead, as well as marijuana and valium. The officers spoke with Seibert, Lisa Gold and Seibert’s girlfriend and were told that Seibert was in the bathroom when two intruders broke into the apartment and shot the victim.

At trial, David Seibert testified that he “lied when the cops came” because he was “scared to death.” He also testified that when he went to the bathroom, the gun was “under the couch ... with the clip out of it.” When Seibert came out of the bathroom, he went over to the victim because the gun was in the victim’s chair. Seibert reached for the gun at the same time the victim did and the gun “was in both of our hands and I was standing over him and as I came through the gun went off ... I just grabbed the gun and it went off---- I called the ambulance right away. I didn’t know what to do.”

Dr. Paul J. Hoyer, Assistant Medical Examiner of Philadelphia, testified that the victim died as a result of a gunshot wound to the left side of the forehead. Dr. Hoyer stated that his examination revealed that the gun was held to the skin, but not pressed against it, when the gun' was fired.

After hearing this testimony, the trial court found Seibert guilty of third-degree murder, recklessly endangering another person, and possession of controlled substances with intent to deliver (marijuana and valium). The court found Seibert’s actions constituted implied malice, sufficient to support a conviction of third-degree murder.

Third-degree murder is defined in the Crimes Code as “All other kinds of murder” other than first-degree murder or second-degree murder. 18 Pa.C.S. § 2502(c). The elements of the third-degree murder, as developed by case law, are a killing done with legal malice but without the specific intent to kill required in first-degree murder. See Commonwealth v. Pitts, 486 Pa. 212, 404 A.2d 1305 (1979). “Malice express or implied is the criteria and absolutely the essential ingredient of murder.” Commonwealth v. Commander, 436 Pa. 532, 537, 260 A.2d 773, 776 (1970). The traditional definition of malice was set forth in Commonwealth v. Drum, 58 Pa. 9 (1868):

Malice is a legal term, implying much more. It comprehends not only a particular ill-will, but every case where there is wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured. Murder, therefore, at common law embraces cases where no intent to kill existed, but where the state or frame of mind termed malice, in its legal sense, prevailed.

Id. at 15 (emphasis added). See also Commonwealth v. Hilbert, 476 Pa. 288, 382 A.2d 724 (1978); Commonwealth v. Polimeni, 474 Pa. 430, 378 A.2d 1189 (1977); Commonwealth v. Green, 464 Pa. 557, 347 A.2d 682 (1975). Under the Crimes Code, 18 Pa.C.S. § 101 et seq., the offense of third-degree murder incorporates common law malice as an element. 18 Pa.C.S. §§ 2501, 2502(c). Malice is the distinguishing factor between murder and the lesser degrees of homicide. See Commonwealth v. Culmer, 463 Pa. 189, 344 A.2d 487 (1975). Chief Justice Nix explained:

[BJetween the recklessness or culpable negligence necessary to support the charge of involuntary manslaughter, see Commonwealth v. Busler, 445 Pa. 359, 284 A.2d 783 (1971), and the specific intent to kill which is a prerequisite of murder of the first degree, there is a class of wanton and reckless conduct which manifests such an extreme indifference to the value of human life which transcends the negligent killing and reaches to the level of malice ...

Commonwealth v. Taylor, 461 Pa. 557, 337 A.2d 545 (1975). Further, malice may be inferred from the use of a deadly weapon on a vital part of the body. Commonwealth v. Hinchcliffe, 479 Pa. 551, 388 A.2d 1068, cert. denied, 439 U.S. 989, 99 S.Ct. 588, 58 L.Ed.2d 663 (1978). See also Commonwealth v. Caye, 465 Pa. 98, 348 A.2d 136 (1975); Commonwealth v. Boyd, 463 Pa. 343, 344 A.2d 864 (1975).

In Commonwealth v. Malone, 354 Pa. 180, 47 A.2d 445 (1946), the Pennsylvania Supreme Court clarified the concept of malice:

When an individual commits an act of gross recklessness for which he must reasonably anticipate that death to another is likely to result, he exhibits that “wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty” which proved that there was at that time in him “the state or frame of mind termed malice.”

Id. at 183, 47 A.2d at 447 (quoting Commonwealth v. Drum, supra.) In Commonwealth v. Young, 494 Pa. 224, 431 A.2d 230 (1981), the Pennsylvania Supreme Court noted that malice may be found where the “actor consciously disregard^] an unjustified and extremely high risk that his actions .might cause death or serious bodily harm.” Id. at 228, 431 A.2d at 232. See Commonwealth v. Rife, 454 Pa. 506, 312 A.2d 406 (1973) (malice imports the absence of justification, excuse or mitigation and intent to cause a particular harm or the wanton and willful doing of an act with knowledge of circumstances indicating awareness of a plain and strong likelihood that harm will result); see also Commonwealth v. Hare, 486 Pa. 123, 129, 404 A.2d 388, 391 (1979) (malice may be found where the perpetrator “consciously disregarded an unjustified and extremely high risk that his actions might cause death or serious bodily harm.”); Commonwealth v. Wanamaker, 298 Pa.Super. 283, 444 A.2d 1176 (1982) (same).

Siebert argues that the evidence did not establish the malice required for third-degree murder. He maintains that the evidence established poor judgment, but not the knowledge required to establish malice, and that the trial court erred in finding malice “where there was recklessness of consequences unaccompanied by wickedness of disposition, hardness of heart, cruelty and mind regardless of social duty.” The law, however, does not require for a finding of third-degree murder the specific intent to kill. See Young, supra; Hare, supra; Wanamaker, supra. An intentional act which indicates recklessness of consequences and a mind regardless of social duty is sufficient, even if there was no intent to harm another.

To summarize: If there was an unlawful killing with (legal) malice, express, or implied, that will constitute murder even though there was no intent to injure or kill the particular person who was killed and even though his death was unintentional or accidental....

Commonwealth v. Gooslin, 410 Pa. 285, 289, 189 A.2d 157, 158 (1963).

Here, the trial court determined that the evidence presented established implied malice. The question we must decide is whether, after reviewing the record in the light most favorable to the Commonwealth and granting all reasonable inferences in favor of the Commonwealth, a malicious killing was established.

In Commonwealth v. Young, 494 Pa. 224, 431 A.2d 230 (1981), the Pennsylvania Supreme Court addressed this issue in a similar context. The defendant, Oscar P. Young, was seated in the rear of a bus with two companions. Young and his companions began shouting obscenities at several youths in the street, one of whom was the victim, Ralph Williams. Williams and another youth threw snowballs at the bus. Williams “ran the bus down” and attempted to board it. The bus driver would not seat Williams and ordered him off the bus. When Williams was back on the street, Young drew a .22 caliber gun from his waistband, pointed it out an open window, and fatally shot Williams in the chest.

At trial Young testified that the shooting was accidental. He stated that he pointed the gun at Williams “just to scare [him]” and that the bus hit a bump at that time which caused the gun to discharge accidentally. One of Williams’ companions testified that before he heard the gunshot, he saw an arm come through the bus window and heard a voice state “I’m going to get you.” Id. at 227, 431 A.2d at 231. The trier of fact chose to reject Young’s testimony, see Commonwealth v. Green, 493 Pa. 409, 415, 426 A.2d 614, 617 (1981), and Young was convicted of third-degree murder. On appeal, Young argued that the evidence was insufficient to prove beyond a reasonable doubt that the killing was committed with malice. The Pennsylvania Supreme Court disagreed, stating:

[Young] intentionally pointed a loaded gun at the victim and shot him in the chest. Under these circumstances, whether the gun discharged accidentally or was fired intentionally is irrelevant for the purpose of determining the existence of malice.[ ] Even if, as [Young] claims, he did not know that the gun was loaded and intended only to “scare” the victim, his conduct nevertheless unjustifiably created an extremely high degree of risk, thereby evincing a wanton and reckless disregard for human life. By intentionally aiming a gun at Williams without knowing for a certainty that it was not loaded, appellant exhibited that type of cruel and wanton conduct of which legal malice is made.

Young, 494 Pa. at 228-29, 431 A.2d at 232.

Here, as in Young, the finder of fact chose to disregard the defendant’s testimony. Judge Mazzola instead chose to believe the testimony of the eyewitnesses, Lisa Gold and Michael Sola, both of whom stated that Seibert pointed the gun at the victim and shot him, and the testimony of the medical examiner, Dr. Hoyer, who testified that the gun was held against the victim’s forehead when the victim was shot. Seibert, not knowing for certain whether the gun was loaded, “exhibited that type of cruel and wanton conduct of which legal malice is made.” Id. The trial court found that the circumstances established “implied malice.” The record fully supports this finding. Siebert’s characterization of his actions as simply an illustration of poor judgment understates the gravity of his actions and the Commonwealth’s evidence, and disregards Judge Mazzola’s role in this case as determiner of credibility and finder of fact. See Commonwealth v. Kersten, 333 Pa.Super. 343, 482 A.2d 600 (1984) (malice, which may be inferred from attending circumstances in a homicide prosecution consists either of an express intent to kill or inflict great bodily harm, or of a wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty, indicating unjustified'disregard for the probability of death or great bodily harm); see also Commonwealth v. Pigg, 391 Pa.Super. 418, 571 A.2d 438, appeal denied, 525 Pa. 644, 581 A.2d 571 (1990) (operation of 18-wheel tractor trailer down narrow road while in intoxicated state is sufficient to give rise to inference of malice as necessary to support conviction for third-degree murder).

Seibert also argues that the trial court erred in finding malice where the Commonwealth’s direct evidence “negated the inference of malice.” In addition to the testimony recounted above, the Commonwealth’s witnesses had also testified that Seibert and the decedent were friends, and that there had been no displays of animosity between them that evening. Thus, Seibert argues, the Commonwealth’s direct evidence negated the inference of malice.

Seibert’s expression of the law is correct. An inference of malice cannot be accepted in a vacuum. The law infers or presumes from the use of a deadly weapon, in the absence of circumstances of explanation or mitigation, the existence of malice. See Commonwealth v. Jones, 355 Pa. 522, 50 A.2d 317 (1947); see generally 40 Am.Jur.2d Homicide § 265 (1968). “While this inference is well recognized in our law it will not be permitted to support a finding of malice where the direct evidence presented in the Commonwealth’s case proves the contrary.” Commonwealth v. Caye, 465 Pa. 98, 101, 348 A.2d 136, 137 (1975). Seibert’s reliance on this rule, however, is misplaced. The Commonwealth’s evidence that Seibert and the decedent were friends does not prove the contrary here; the evidence of Seibert’s friendship with the decedent does not prove that Seibert’s recklessness did not reach to the level of malice sufficient for a finding of third-degree murder.

In Caye, supra, and in a similar case, Commonwealth v. McGuire, 487 Pa. 208, 409 A.2d 313 (1979), the issue before the Supreme Court of Pennsylvania was whether the evidence was sufficient to support a finding of malice in a murder conviction. In both cases the appellants had used a deadly weapon on a vital part of the decedent’s body, raising the inference of malice. In both cases the appellants had raised the defense of self-defense, and the evidence presented reached only to the level of imperfect self-defense, that is, the appellant either used excessive or unnecessary force on the victim, or his belief that his life was in danger was an unreasonable belief. Thus, the evidence presented, although sufficient to reject a claim of self-defense, was not sufficient to find malice and would have supported only a finding of voluntary manslaughter. Caye, 465 Pa. at 102, 348 A.2d at 138; McGuire, 487 Pa. at 218, 409 A.2d at 319. Here, there is no claim of self-defense, nor is there an issue of imperfect self-defense. Although we do not necessarily interpret Caye and McGuire as negating the inference of malice only in situations involving imperfect self-defense, we are not persuaded that the rule is applicable in this context. The evidence which Seibert points to as negating the inference of malice is not related to conduct which formed the basis for the court’s finding of malice. The malice here was not based upon evidence of hatred, spite, or ill-will; rather, it was founded upon evidence of recklessness of consequences and a mind regardless of social duty. See Young, supra; Pigg, supra.

After reviewing the evidence in the light most favorable to the Commonwealth, and granting all reasonable inferences in favor of the Commonwealth, we conclude that the evidénce is sufficient to establish the element of malice necessary for a conviction of third-degree murder. Griscavage, supra; Young, supra.

In issues two and three Seibert challenges the legality of his sentence. First, Seibert claims that the sentence of seven years probation for a violation of section 780-113(a)(16) and section 780-113(a)(30) of the Controlled Substance, Drug, Device and Cosmetic Act, 35 Pa.S. § 780-113(a)(30), exceeds the maximum term allowed by statute and is therefore illegal. Seibert was convicted of possession with intent to deliver two controlled substances, marijuana, a schedule I substance, and Valium, a schedule IV substance. See 28 Pa.Code § 25.-72(e)(1)(xiii). The maximum sentence that can be imposed for possession with intent to deliver marijuana, a schedule I substance, is a term of imprisonment of five years. 35 Pa.S. § 780 — 113(f)(2). The maximum sentence that can be imposed for possession with intent to deliver Valium, a schedule IV substance, is three years. 35 Pa.S. § 780—113(f)(3). Seibert’s sentence of seven years probation does not exceed the statutory limit.

Finally, Seibert argues that the mandatory minimum sentence of five years imprisonment for a conviction of third-degree murder violates the legislature’s intent in enacting the Mandatory Minimum Sentencing Act. 42 Pa.C.S. § 9712. Seibert’s argument focuses on the “unintentional” nature of his act, and is premised upon his characterization of the killing as an “accidental shooting.” This argument is meritless. The trial court’s determination that the evidence established murder in the third degree has been resolved in the Commonwealth’s favor and, therefore, Seibert’s claim must fail.

Judgment of sentence affirmed.

      . The Act provides in part:
      (a) Mandatory sentence. — Any person who is convicted in any court of this Commonwealth of murder of the third degree ... shall, if the person visibly possessed a firearm during the commission of the offense, be sentenced to a minimum sentence of at least five years of total confinement notwithstanding any other provision of this title or other statute to the contrary.
      42 Pa.C.S. § 9712(a).