author: WIEAND, Judge: CAVANAUGH, Judge, JOHNSON, Judge,

text:
    520 A.2d 451
    COMMONWEALTH of Pennsylvania, Appellee, v. Woodrow W. KIRKWOOD, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 5, 1986.
    Filed Jan. 23, 1987.

      David F. Megnin, Kittanning, for appellant.
    Before CAVANAUGH, WIEAND and JOHNSON, JJ.
   WIEAND, Judge:

The principal issue in this appeal is whether a simple assault is committed by one who, during a dance, grabs a partner by the arm and swings the partner violently about the dance floor as a result of which the partner sustains bruises and fingernail marks of the arms.

As a result of such an incident, Woodrow W. Kirkwood was tried by a jury and was found guilty of simple assault. Post-trial motions were denied, and the court thereafter suspended a sentence of imprisonment and placed Kirkwood on probation for a period of two years. On direct appeal from the judgment of sentence, Kirkwood argues that: (1) the evidence was insufficient to show bodily injury inflicted intentionally, knowingly or recklessly; (2) the prosecutor improperly interviewed defense witnesses prior to trial; (3) trial counsel was constitutionally ineffective for failing to plead surprise and cross-examine a defense witness after she had given testimony at variance with her pre-trial statement; and (4) after-discovered evidence compelled the granting of a new trial.

Section 2701(a) of the Crimes Code, 18 Pa.C.S. § 2701(a) provides that “[a] person is guilty of assault if he: (1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another____” The term “bodily injury” is defined as an “impairment of physical condition or substantial pain.” 18 Pa.C.S. § 2301.

“In reviewing the sufficiency of the evidence, we view all the evidence and all reasonable inferences to be drawn therefrom in the light most favorable to the Commonwealth, which has won the verdict.” Commonwealth v. Rivera, 349 Pa.Super. 303, 305, 503 A.2d 11, 12 (1985) (en banc). The evidence in this case included the following.

Paula Sheasley testified that on the evening of August 11, 1984, she, along with her husband, her sister, and her brother-in-law, went to the Greendale Tavern in Cowanshannock Township, Armstrong County, to dance and to get something to eat. At approximately 1:30 a.m. on the following morning, she observed that Kirkwood was also at the tavern. Sheasley was a correctional officer at the Armstrong County Prison, and she knew Kirkwood as a former inmate who was then on parole. Later, while she was dancing a fast dance with the other members of her party, she said, Kirkwood had approached her, had grabbed her by the arm and had begun to swing her violently around the dance floor. Sheasley said that she had pleaded with Kirk-wood to stop because he was hurting her, but that he had continued to swing her until her husband intervened. The incident, she said, lasted approximately forty seconds and left her with bruises and cut marks on her arms. As a result, she testified, she suffered pain in her arms and her right knee for a short period of time thereafter. Her version of the incident was corroborated by her husband, her sister and her brother-in-law.

The term “bodily injury” and the definition thereof contained in 18 Pa.C.S. § 2301 have not been considered by the appellate courts of this Commonwealth in the factual context of a strenuous or violent dance. This Court, on two occasions, has concluded in the context of facts constituting the crime of rape that a simple assault occurred (1) when the victim was struck upon the head with an object hard enough to almost knock her unconscious, Commonwealth v. Adams, 333 Pa.Super. 312, 482 A.2d 583 (1984); and (2) when the victim was twice struck across the face from which, a majority of the court concluded, pain could be inferred, Commonwealth v. Jorgenson, 341 Pa.Super. 550, 492 A.2d 2 (1985). These decisions, however, are of little assistance to us as we attempt to apply the simple assault section of the Crimes Code to the facts of the instant case. Of greater assistance are this Court’s decisions in Commonwealth v. Fry, 341 Pa.Super. 333, 491 A.2d 843 (1985), where we held that it was not an assault to put one’s arms about a child and pick her up, and The Interest of J.L., 327 Pa.Super. 175, 475 A.2d 156 (1984), where we held that the act of pushing another away with one’s elbow without evidence of an intent to injure was insufficient to constitute an assault.

The Official Comment to the Pennsylvania Crimes Code suggests that the definition of bodily injury appearing at 18 Pa.C.S. § 2301 was derived from Section 210.0 of the Model Penal Code. The Comment to the Model Penal Code, in turn, suggests that the definition of “bodily injury” was based on section 10.00 of the crimes code of New York. See: Toll, Pennsylvania Crimes Code Annotated § 2301 (1974 ed.). Therefore, we look also to decisions of the courts of New York, where we are able to find additional guidance. In interpreting the crimes code of New York, the courts of that state have held that petty slaps, kicks and shoves do not amount to “bodily injury.” In re Philip A., 49 N.Y.2d 198, 424 N.Y.S.2d 418, 400 N.E.2d 358 (1980). In the absence of evidence of physical impairment, moreover, testimony that the alleged victim sustained a very sore neck was insufficient to show that she had suffered the requisite bodily injury or substantial pain. People v. Hargrove, 95 App.Div.2d 864, 464 N.Y.S.2d 224 (1983). And where there was a swelling and a red mark on the victim’s face, this was held insufficient as a matter of law to establish “impairment of physical condition or substantial pain.” In re Philip A., supra. Also, a one centimeter cut above the lip, without more, was held to be inadequate to show that the alleged victim had suffered either “substantial pain” or “impairment of physical condition.” People v. Jimenez, 55 N.Y.2d 895, 449 N.Y.S.2d 22, 433 N.E.2d 1270 (1982). Finally, an incidental reference to a blackened eye without any development of its appearance, seriousness, accompanying swelling, or suggestion of pain was held insufficient in People v. McDowell, 28 N.Y.2d 373, 321 N.Y.S.2d 894, 270 N.E.2d 716 (1971). On the other hand, a punch in the nose, even where the victim has missed no time from work, wás held adequate to show bodily injury in People v. Chesebro, 94 App.Div.2d 987, 463 N.Y.S.2d 711 (1983); and a kick in the stomach, even though not requiring medical attention, was held to be sufficient to show bodily injury within the statutory definition in In re Parks, 78 Misc.2d 281, 356 N.Y.S.2d 440 (1974).

The New York decisions, of course, are not binding upon us in our quest to ascertain the intent of the legislature in this Commonwealth. Nevertheless, the prior decisions in New York and the prior decisions of this Court suggest that the assault section of the Crimes Code was’ intended to protect and preserve one’s physical well being and was not intended to prevent temporary hurts resulting from trivial contacts which are a customary part of modern day living. See: Interest of J.L., supra, 327 Pa.Super. at 178, 475 A.2d at 157. (“... it is difficult to attach criminality to the pushing, shoving, slapping, elbowing, hair-pulling, perhaps even punching and kicking, that frequently occur between siblings or other members of the same family.”). The Pennsylvania legislature, in recognition that not all physical contact constituted an assault and in an attempt to close any loophole which remained by virtue of the definition of assault, created the summary offense of harassment, which it defined to include a situation in which “[a] person ... with intent to harass, annoy or alarm another person: (1) ... strikes, shoves, kicks or otherwise subjects him to physical contact, or attempts or threatens to do the same....” 18 Pa.C.S. § 2709.

In the instant case, the defendant’s uninvited attentions and violent dancing, according to the victim, caused bruises and slight cuts on her arms, and her right knee and arms hurt as a result of the manner in which appellant swung her during the dance. There was no evidence that she had consulted a physician or that she had lost time from work. We conclude that this evidence was insufficient to establish either the “physical impairment” or the “substantial pain” which is necessary to prove the crime of criminal assault as defined in 18 Pa.C.S. § 2701. Temporary aches and pains brought about by strenuous, even violent, dancing are an inadequate basis for imposing criminal liability upon a dance partner for assault. Appellant’s invitation to the dance, even if uncivil and harassing, was not assaultive within the meaning of the statute.

The judgment of sentence is reversed, and appellant is discharged.

CAVANAUGH, J., files a concurring opinion.

JOHNSON, J., files a dissenting opinion.

CAVANAUGH, Judge,

concurring:

I concur with the majority’s analysis and agree that appellant is properly ordered discharged. I write separately because I believe that the behavior involved in this case does not rise to the level of criminal harassment but rather falls within the purview of 18 P.S. § 312, relating to de minimus infractions.

In relevant part, the de minimus infractions statute reads as follows:

(a) General rule. — The court shall dismiss a prosecution if, having regard to the nature of the conduct charged to constitute an offense and the nature of the attendant circumstances, it finds that the conduct of the defendant:
(1) was within a customary license or tolerance, neither expressly negatived by the person whose interest was infringed nor inconsistent with the purpose of the law defining the offense;
(2) did not actually cause or threaten the harm or evil sought to be prevented by the law defining the offense or did so only to an extent too trivial to warrant the condemnation of conviction;
or
(3) presents such other extenuations that it cannot reasonably be regarded as envisaged by the General Assembly or other authority in forbidding the offense.

Appellant’s conduct during the 40-second whirlwind encounter and its lack of resultant bodily harm constitutes an infraction too trivial in nature to warrant the condemnation of conviction. The circumstances surrounding this incident indicate that appellant may not be held criminally culpable for complainant’s minor and temporary injuries. Appellant should not be stigmatized with a criminal conviction for actions which may be considered, if not customary, at least not wholly extraordinary during a fast dance at a tavern.

JOHNSON, Judge,

dissenting:

In his appeal to this Court appellant raises five issues:

I. Whether the recantation testimony of a central witness warrants the granting of a new trial?
II. Whether defendant should have been granted a new trial on the basis of after-discovered evidence?
III. Whether the conduct of the prosecution in handling this case was so improper as to constitute a denial of due process and equal protection?
IV. Whether defendant had effective assistance of counsel prior to and in the course of the trial?
V. Whether the evidence was sufficient to support a conviction of simple assault?

The majority reverses the judgment of sentence and discharges appellant based on its finding that the evidence was insufficient to support a conviction of simple assault. I disagree. I believe the evidence was sufficient and, finding no merit in Appellant’s other arguments, I would affirm the conviction. Accordingly, I dissent.

The majority concludes that the:

evidence was insufficient to establish either the “physical impairment” or the “substantial pain” which is necessary to prove the crime of criminal assault as defined in 18 Pa.C.S. § 2701. Temporary aches and pains brought about by strenuous, even violent, dancing are an inadequate basis for imposing criminal liability upon a dance partner for assault.

Majority op. at 275. I believe the evidence presented by the Commonwealth sufficienty supports the conviction.

We have stated on previous occasion that:

In determining whether the evidence is sufficient to support a conviction, we accept as true all the evidence, and the reasonable inferences therefrom, upon which the fact-finder could have based its verdict and then ask whether that evidence, viewed in a light most favorable to the Commonwealth, was sufficient to prove guilt beyond a reasonable doubt.

Commonwealth v. Crawford, 334 Pa.Super. 630, 632-33, 483 A.2d 916, 917 (1984). The testimony of the victim, Paula Sheasley, established the following. The victim, her husband, her brother-in-law and his wife were fast dancing at the Greendale Tavern. While they were dancing in a circle the appellant tapped Sheasley on the shoulder. Sheasley testified that she turned around and appellant grabbed her by the arms. He said something to her and started flinging her around. His nail went into the lower part of her arm. Sheasley testified that appellant Woodrow Kirkwood:

just started flinging me. Like I couldn’t call it dancing. I mean he was flinging me and I asked him to stop. The first time I said, “Woody, would you please stop, you’re hurting me.” And he didn’t stop. So the second time I said — I was getting angry and it was hurting. I was in pain, and I said, “Woody, would you please stop, it hurts.” And he didn’t stop. Then the third time I said, “Please stop, Woody, it hurts.” And I almost fell then. I asked him to stop the third time after I almost fell, but he still had a hold of me at the time. And I slid down on my right leg, but I didn’t completely fall to the floor. But I slid and my right leg went out from underneath me.

N.T. 11/23/84 at 26. The incident lasted 40 seconds, until Sheasley’s husband intervened. Sheasley sustained bruises and nail marks on both arms where appellant grabbed her. In fact, her arms were slightly sore for the next day or few days and her right knee bothered her for over a month.

In defining the offense of simple assault, 18 Pa.C.S. § 2701 provides that:

A person is guilty of assault if he:
(1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another;

18 Pa.C.S. § 2701(a). Bodily injury consists of:

Impairment of physical condition or substantial pain. 18 Pa.C.S. § 2301.

My reading of Sheasley’s testimony, as well as the testimony of her husband and her brother-in-law, is that appellant impaired Sheasley’s physical condition and caused her substantial pain. She suffered bruises on her arms and scars from appellant’s fingernails. At the time of the incident, she told appellant three times that he was hurting her and asked him to stop. Appellant ignored her pleas. Sheasley eventually slid down on her right leg in such fashion that her knee bothered her for over a month.

This case does not present this Court with the situation of an intra-family squabble, as in the case cited by the majority, In the Interest of J.L., 327 Pa.Super. 175, 475 A.2d 156 (1984). The majority states that:

the prior decisions in New York and the prior decisions of this Court suggest that the assault section of the Crimes Code was intended to protect and preserve one’s physical well being and was not intended to prevent temporary hurts resulting from trivial contacts which are a customary part of modern day living.

Majority, op. at 275. I do not consider the 40 second violent flinging of Sheasley to be a trivial contact which is a customary part of modern day living.

I believe the evidence is not only sufficient to establish bodily injury but also sufficient to establish intent. The Pennsylvania Crimes Code provides that:

(1) A person acts intentionally with respect to a material element of an offense when:
(i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result;

18 Pa.C.S. § 302(b). Intent can be inferred from circumstantial evidence. Commonwealth v. Moore, 261 Pa.Super. 92, 395 A.2d 1328 (1978). The evidence adduced at trial shows that appellant not only approached Sheasley, grabbed her and began flinging her, but that he continued to fling her despite her three pleas to stop. I believe that the factfinder could properly infer from this that appellant intended to cause bodily injury to Sheasley. I would accordingly find the evidence sufficient to sustain his conviction for simple assault.

Having reviewed appellant’s first four issues, I would find them to be meritless.

Appellant contends that the recantation of Goldia Elkin warrants the grant of a new trial. Elkin testified at trial immediately after appellant testified. The thrust of appellant’s testimony was that Sheasley bumped him on several occasions while he was dancing with Goldia Elkin and that it was Sheasley who asked him to dance. Appellant testified that he turned from Goldia Elkin and then began dancing with Sheasley. Appellant contends that he did not swing Sheasley on the dance floor. Goldia Elkin testified that Sheasley came up to appellant and punched him on the arm. According to Elkin’s testimony at trial, appellant did not dance with Sheasley, but continued dancing with Elkin. Several months later Elkin recanted and testified at a post-trial motions hearing that appellant did leave her on the dance floor and danced with Sheasley. Elkin explained at the hearing that she had received intimidating phone calls and had therefore altered her testimony at trial.

Recanted testimony is generally viewed as exceedingly unreliable and a new trial will be denied where a court is not satisfied that such testimony is true. Commonwealth v. Hubble, 314 Pa.Super. 99, 460 A.2d 784 (1983). This Court will not reverse an order denying a new trial on the basis of recanted testimony absent an abuse of discretion. In its opinion of April 24, 1985 the lower court found the testimony given by Elkin at the post-trial hearing to be contradictory in some instances and somewhat difficult to interpret. The court stated that:

[I]t appears that the testimony of Ms. Elkin at the February 28th hearing may at least be somewhat closer to the truth than the testimony which she offered at trial____

Opinion 4/24/85 at 7. The court went on to find that Elkin’s trial testimony was not essential to the guilty verdict and that appellant was not entitled to a new trial based on this recantation. I agree with the trial court. It does not appear clear to me that the court found Elkin’s new testimony to be true. I would find no abuse of discretion in the ruling.

Appellant’s second issue is that the after-discovered evidence of witnesses at the scene warrants the grant of a new trial. The evidence to which appellant refers is the testimony of witnesses who had been present at the tavern on the night in question, but who had not testified at trial. The testimony was to the effect that these witnesses had been present at the tavern on the night of the incident and they were unaware of the occurrence of any incident or altercation such as the one about which Sheasley testified. A new trial will not be granted on the basis of after-discovered evidence if the evidence was merely cumulative or offered only to impeach credibility. Commonwealth v. Hubble, supra. Appellant’s own testimony and that of his defense witnesses at trial, was that no altercation or incident occurred between appellant and Sheasley at the tavern. The testimony of these new witnesses is merely cumulative of that trial testimony. I would find that the trial court did not err in refusing to grant a new trial based on this evidence.

Appellant next contends that the conduct of the prosecution in handling this case was so improper as to constitute a denial of due process and equal protection. Specifically, appellant claims that defense counsel made a request for the names and addresses of prosecution witnesses and had been denied this information, yet the defense was required to disclose the names of its eyewitnesses in the context of the request for a continuance. Appellant correctly draws this Court’s attention to his Request for Informal Disclosure or Discovery filed pursuant to Pa.R.Crim.P. 305 A. In the document appellant requested the names and addresses of eyewitnesses from the attorney for the Commonwealth. What appellant fails to mention, and what the record fails to contain, is any pre-trial motion made to the Court requesting this information. Apparently, appellant did not follow his informal request for disclosure with a motion to the court. Rule 305 A provides that:

When there are items requested by one party which the other party has refused to disclose, the demanding party may make appropriate motion to the court. Such motion shall be made fourteen (14) days after arraignment, unless the time for filing is extended by the court. In such motion the party must set forth the fact that a good faith effort to discuss the requested material has taken place and proved unsuccessful.

Pa.R.Crim.P. 305 A. Subsection B of Rule 305 addresses the issue of eyewitnesses. It provides that:

if the defendant files a motion for pretrial discovery, the court may order the Commonwealth to allow the defendant’s attorney to inspect and copy or photograph any of the following requested items, upon a showing that they are material to the preparation of the defense, and that the request is reasonable:
(a) the names and addresses of eyewitnesses;

Pa.R.Crim.P. 305 B(2). Having failed to file such a pretrial motion I cannot see that appellant is entitled to any relief on this basis. I would affirm the lower court’s ruling on this issue.

Finally, appellant contends that he did not have effective assistance of counsel prior to and in the course of trial. A claim of ineffectiveness will not be sustained unless it is determined that, in light of all the alternatives available to counsel, the strategy actually employed was so unreasonable that no competent attorney would have chosen it. Commonwealth v. Litzenberger, 333 Pa.Super. 471, 482 A.2d 968 (1984). Appellant’s first claim of ineffectiveness is that his counsel should have obtained a written statement from Goldia Elkin and should have moved for leave to cross-examine her at trial when her testimony was not in accord with her prior oral statements. To have confronted Elkin about her inconsistent testimony through the use of a written statement after motioning to call her for cross-examination, may well have proved disastrous to appellant. While her trial testimony as given, conflicted with that of appellant, her testimony tended to establish not only that no altercation occurred between appellant and Sheasley, but that they never even danced together. It is impossible to determine how Elkin would have responded to the proposed cross-examination. The testimony may well have cast a doubt over appellant’s entire case. In light of this risk, I agree with the trial court and I would not find counsel ineffective in this respect.

Appellant contends that counsel erred in excusing the tavern owner, Larry Boyer, from testifying. Boyer was subpoenaed to testify by the defense, but requested permission to leave the trial and was allowed to do so. Appellant also contends that counsel was ineffective for failing to present at trial the testimony of other witnesses who did testify at the post-trial motions hearing. As I have already discussed, the testimony of Boyer and the others present at the tavern would have been cumulative of the testimony actually presented. Their testimony would have established that they were unaware of any incident at the tavern on the night in question. Defense testimony actually presented at trial already attempted to establish that no incident occurred. As such I would find that appellant has failed to establish any ineffective assistance of counsel.

Because I believe the simple assault conviction is supported by sufficient evidence and appellant’s other arguments are without merit, I would affirm appellant’s judgment of sentence.

      . Kirkwood denied that an assault had occurred. The defense contended that the charge was false and that criminal proceedings had been instituted in retaliation for a civil action which Kirkwood had filed against the warden of the Armstrong County Prison. Although conceding his presence at the dance and that he had danced with Paula Sheasley, his testimony was sharply at variance with the Commonwealth’s version. He testified that while dancing a slow dance with Golda Elkin, Sheasley had cut in and asked him to dance with her. Kirkwood, according to the defense version, had agreed and had left his date standing on the dance floor. The dance had been completed, he said, without incident. His testimony was corroborated by Edna Kilgore, who had been seated at the same table with Kirkwood and others. It was also confirmed in part by Golda Elkin. She surprised the defense, however, by testifying that Kirkwood had rejected Sheasley’s invitation to dance and had continued to dance with her. It was defense counsel’s failure to plead surprise and cross-examine Golda Elkin regarding contradictory pre-trial statements which gave rise to Kirkwood’s contention that trial counsel was constitutionally ineffective. It was Golda Elkin’s post-trial admission that her testimony had been incorrect and that Kirkwood, in fact, had accepted Sheasley’s invitation to dance which was the after-discovered evidence upon which the motion for new trial was based.

      . Although our decision makes it unnecessary to decide the arguments advanced by appellant in support of a new trial, we have nevertheless reviewed the same and find that they were correctly decided by the learned trial judge.

      . Although appellant did not argue dismissal on this basis before the lower court, dismissal for a de minimus infraction should be granted sua sponte where the circumstances warrant. Commonwealth v. Gemelli, 326 Pa.Super. 388, 474 A.2d 294 (1984).


source: Caselaw Access Project

author: WIEAND, Judge: CAVANAUGH, Judge,

license: Public Domain

text:
    520 A.2d 458
    Joyce Elizabeth LIBERTO, Appellee, v. Samuel Albert LIBERTO, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 4, 1986.
    Filed Jan. 23, 1987.

      Samuel P. Kamin, Pittsburgh, for appellant.
    Dennis J. Miller, Pittsburgh, for appellee.
    Before CAVANAUGH, WIEAND and JOHNSON, JJ.
   WIEAND, Judge:

This is an appeal from a final order granting a divorce on the basis of Section 201(d) of the Divorce Code of 1980. In granting the divorce, the court found that the marriage had been irretrievably broken and that the parties had lived separate and apart for a period of at least three (3) years. Husband-appellant contends on appeal that the trial court erred by failing to order counseling prior to entering a final decree of divorce. He also avers that the court erred by entering an initial “decree in divorce,” rather than a “decision” to which he could file exceptions. We find no basis for reversing and, therefore, affirm the final decree of divorce.

Joyce Liberto, appellee, and Samuel Liberto, appellant, were married on August 17, 1968. Wife-appellee filed a complaint in divorce on April 1, 1982 seeking a divorce under Section 201(c) of the Divorce Code, with ancillary claims for custody, child support, equitable distribution, alimony, counsel fees and costs. An affidavit of consent was filed by wife-appellee on March 25, 1983. Upon husband-appellant’s failure to file an affidavit of consent, as permitted by Section 201(c), wife-appellee elected to proceed under Section 201(d)(1) of the Divorce Code and, on September 20,1985, filed a new affidavit of consent. Husband-appellant then filed a counter-affidavit in which, inter alia, he “specifically requested] the court to order a 120 day continuance, pursuant to Section 201(d)(2), during which period the court should order marital counseling.”

On February 18, 1986, a hearing was held before the Honorable R. Stanton Wettick, after which a decree in divorce was entered on grounds of “irretrievable breakdown.” Husband filed exceptions to this decree on February 28, 1986 and filed a motion to strike the divorce decree on March 10, 1985. In his motion to strike the divorce decree, Husband asserted that the trial court had erred in not ordering counseling under Section 202, as he had requested, and also that the court had erred in entering a divorce decree rather than a “decision” which stated the reasons for the proposed divorce, as required by Pa.R.C.P. 1920.52. Following a hearing on these issues, the court entered a final decree in divorce. Husband appealed.

“In the review of a divorce case, it is the responsibility of this court to make a de novo evaluation of the record and to decide independently of the master and the lower court whether a legal cause of action in divorce exists.” Jones v. Jones, 311 Pa.Super. 407, 409-411, 457 A.2d 951, 952 (1983). See: Sinha v. Sinha, 341 Pa.Super. 440, 447, 491 A.2d 899, 902 (1985); Thomas v. Thomas, 335 Pa.Super. 41, 45, 483 A.2d 945, 946 (1984); Remick v. Remick, 310 Pa.Super. 23, 28-29, 456 A.2d 163, 166 (1983); Keller v. Keller, 275 Pa.Super. 573, 576, 419 A.2d 49, 50 (1980). In the instant case, the trial court held that the evidence supported a grant of a unilateral “no fault” divorce under Section 201(d) of the Divorce Code because (1) the parties had lived “separate and apart” for at least three (3) years; and (2) the marriage was irretrievably broken. The record supports the trial court’s findings.

Following their separation, the parties did not share the same home, did not cohabit, did not engage in sexual relations, and did not take trips or attend social functions together. The only contact between the parties was in regard to the children. The evidence revealed that neither party had made any attempts to reconcile during the period of separation, that Husband had previously rejected marriage counseling, and that Wife did not wish to engage in counseling and unequivocally rejected any possibility of reconciliation. The marriage clearly was irretrievably broken.

We are asked nevertheless to hold it improper to grant a divorce pursuant to Section 201(d) without first ordering counseling when a party requests it. However, Judge Wettick specifically found that the marriage was irretrievably broken and that there was no reasonable prospect of reconciliation. In view of this finding, which is supported by the record, the court was not required to continue the action for ninety (90) days at the request of one of the parties. Section 201(d)(2) must be construed in a common sense manner. It was intended to provide additional time and counseling where the possibility of reconciliation existed. It was not intended to compel a court to engage in futile and useless exercises, nor was it intended to provide a spouse with the means to delay the entry of a decree in divorce for no good reason. Cf. Thomas v. Thomas, supra.

Pa.R.C.P. 1920.52(a) directs that in a contested action of divorce, “the trial judge shall enter a decision which shall state the reasons therefor.” Husband-appellant contends that the trial court erred procedurally by entering a “decree of divorce” rather than a “decision.” We conclude, however, that even if the trial court’s decision was mislabeled, the error was harmless. Husband was nevertheless permitted to file a motion for post-trial relief under Pa.R.C.P. 227.1 — which he erroneously labeled exceptions — and a final decree in divorce was not entered until all issues raised post-trial had been argued by counsel and decided by the court.

The final decree is affirmed.

JOHNSON, J., joins this opinion and also the concurring opinion by CAVANAUGH, J.

CAVANAUGH, J., files a concurring opinion.

CAVANAUGH, Judge,

concurring:

I concur in the result achieved by the majority since I believe that the record created in the court below demonstrates that the parties’ marriage was irretrievably broken. I write separately to emphasize that the counseling provisions contained in the Divorce Code are intended to be utilized whenever it appears that there is a reasonable prospect of reconciliation between the parties and that such a determination should not be avoided merely upon the testimony of one party that the marriage is irretrievably broken. One party may not effectively nullify the counseling provisions through a simple recitation that in his or her belief the marriage is irretrievably broken.

The record before us contains far more than the mere assertion by one party of irretrievable breakdown. Rather the evidentiary hearing conducted by the lower court establishes that the entire course of dealing between the parties since August 1982 contained little or no efforts by either party to preserve the marriage.

The unilateral termination of a marriage without the benefit of counselling is not a step to be undertaken lightly by the courts. It is only upon a complete record, such as that present in this case, that a determination of irretrievable breakdown should be made and counseling not be required.

JOHNSON, J., joins this concurring opinion.

      . 23 P.S. § 201(d).

      . Subsection 201(c) provides:
      (c) It shall be lawful for the court to grant a divorce where a complaint has been filed alleging that the marriage is irretrievably broken and 90 days have elapsed from the date of filing of the complaint and an affidavit has been filed by each of the parties evidencing that each of the parties consents to the divorce.

      . Subsection (d)(1) of § 201 provides:
      (d) (1) It shall be lawful for the court to grant a divorce where a party has filed a complaint and an affidavit alleging that the parties have lived separate and apart for a period of at least three years, and that the marriage is irretrievably broken, and:
      (1) the respondent does not deny the allegations set forth in the affidavit; or
      (ii) the respondent denies one or more of the allegations set forth in the affidavit, but after notice and hearing, the court determines that the parties have lived separate and apart for a period of at least three years and that the marriage is irretrievably broken.

      . Section 201(d)(2) provides:
      (2) If a hearing has been held pursuant to paragraph (l)(ii), and the court determines that there is a reasonable prospect of reconciliation, then the court shall continue the matter for a period of not less than 90 days nor more than 120 days, unless the parties agree to a period in excess of 120 days. During such period, the court shall require counseling as provided in section 202. If the parties have not reconciled at the expiration of the time period and one party states under oath that the marriage is irretrievably broken, the court shall determine whether the marriage is irretrievably broken. If the court determines that the marriage is irretrievably broken, the court shall grant the divorce. Otherwise, the court shall deny the divorce.

      . Section 202 provides, in pertinent part:
      (c) Whenever the court orders a continuation period as provided in section 201(d)(2), the court shall require up to a maximum of three counseling sessions within the time period where either of the parties requests it or may require such counseling where the parties have at least one child under 16 years of age.
      (d) Whenever section 201(a)(6), (c) or (d) is the ground for divorce, the court shall upon filing of the complaint, notify both parties of the availability of counseling and upon request, provide both parties a list of qualified professionals who provide such services.


author: McEWEN, Judge:

text:
    520 A.2d 461
    Leona HOUSEHOLDER, Appellant, v. KENSINGTON MANUFACTURING COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued June 25, 1986.
    Filed Jan. 20, 1987.

      Lawrence R. Chaban, Washington, for appellant.
    Sidney Zonn, Pittsburgh, for appellee.
    Before ROWLEY, McEWEN and TAMILIA, JJ.
   McEWEN, Judge:

This appeal has been taken from an order sustaining preliminary objections in the nature of a demurrer and dismissing a complaint which sought damages for the allegedly wrongful discharge of appellant, an at-will employee. Appellant argues that the trial court erred in holding that, under the facts alleged, her sole avenue of recourse was to proceed pursuant to the provisions of the Pennsylvania Human Relations Act (hereinafter “PHRA”), Act of October 27, 1955, P.L. 744, §§ 1 et seq., as amended, 43 P.S. §§ 951 et seq.

The standard of review which we apply when examining a challenge to an order sustaining preliminary objections in the nature of a demurrer is well-settled:

All material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true for [the purposes of this review.] Clevenstein v. Rizzuto, 439 Pa. 397, 266 A.2d 623 (1970). The question presented by the demurrer is whether on the facts averred the law says with certainty that no recovery is possible. Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970). Where doubt exists as to whether a demurrer should be sustained this doubt should be resolved in favor of overruling it. Birl v. Philadelphia Electric Co., 402 Pa. 297, 167 A.2d 472 (1960).

Mahoney v. Furches, 503 Pa. 60, 64-67, 468 A.2d 458, 461-462 (1983) quoting Vattimo v. Lower Bucks Hospital, Inc., 502 Pa. 241, 244, 465 A.2d 1231, 1232-1233 (1983). Accord: Kyle v. McNamara & Criste, 506 Pa. 631, 633, 487 A.2d 814, 815 (1985); Judge v. Allentown and Sacred Heart Hospital Center, 506 Pa. 636, 638, 487 A.2d 817, 818 (1985). See also: Baker v. Magnetic Analysis Corp., 347 Pa.Super. 188, 191, 500 A.2d 470, 472 (1985).

When so viewed, the averments contained in the complaint filed by appellant disclose that appellant was an at-will employee of appellee from September of 1975 until her discharge in March of 1984. Appellant was stricken with a severe asthma attack on October 14, 1982, which required hospitalization and prevented her return to work until November 8, 1982. Appellant was again hospitalized for asthma some fifteen months later, on February 7, 1984. When she returned to work, five weeks later, on March 12, 1984, she was informed that she was being discharged from her employment for the sake of her health.

Appellant could, of course, have sought redress under the Pennsylvánia Human Relations Act which provides that it is an unlawful discriminatory practice for any employer to discharge from employment any individual because of his “non-job related handicap or disability”. 43 P.S. § 955(a). A remedy for wrongful discharge is conferred by Section 953 of that Act when it states, in relevant part, that “[t]he opportunity for an individual to obtain employment for which he is qualified, ... without discrimination because of ... handicap or disability ... [is] hereby recognized as and declared to be [a] civil [right] which shall be enforceable as set forth in this act____” 43 P.S. § 953 (emphasis supplied). Thus, the Act both bestows the right to be free from discrimination by reason of handicap or disability, and prescribes the procedures by which those rights shall be vindicated. Section 959 of the Act specifically states that a complaint alleging such discrimination may be filed with the Pennsylvania Human Relations Commission, and that the Commission must promptly investigate to determine whether or not probable cause exists for crediting the allegations of the complaint. 43 P.S. § 959(a) and (c). If the Commission finds that probable cause exists, it must immediately endeavor to eliminate the asserted unlawful discriminatory practice by way of conference, conciliation agreement or evidentiary hearing. 43 P.S. § 959(c). The Act does, however, in Section 962(c), provide that the complainant may bring an action in the court of common pleas based upon “the right to freedom from discrimination granted by this act”, 43 P.S. § 962(c), wherever a complainant has filed a complaint with the Commission, and the Commission either dismisses the complaint or has not entered into a conciliation agreement to which the complainant is a party within one year of the filing of the complaint.

Appellant did not file a complaint with the Human Relations Commission as prescribed by Section 959 of the Act. Instead, fifteen months after her discharge, appellant commenced the instant common law action by filing a complaint in the court of common pleas seeking compensatory and punitive damages, and alleging that appellee had wrongfully discharged her on the basis of a non-job related handicap or disability, contrary to the public policy embodied in Section 955(a) of the Act. It is to be emphasized that appellant has asserted a common law remedy by initiating the instant litigation in the common pleas court, and that she relies upon the PHRA, not for any remedy, but for the sole and limited purpose of defining the public policy which appellee allegedly violated.

Appellee filed preliminary objections in the nature of a demurrer to the complaint, alleging (1) that the complaint failed to state a cause of action since Pennsylvania does not recognize a common law cause of action for the discharge of an at-will employee based on a non-job related handicap, and (2) that appellant had not complied with the statutory prerequisites set forth in the Pennsylvania Human Relations Act, which provides the sole remedy for such a violation. The trial court sustained the preliminary objections and dismissed the complaint.

Appellant in this appeal argues that an at-will employee, who is discharged in violation of Section 955 of the PHRA, may proceed against his or her employer either at common law for wrongful discharge or pursuant to the provisions of the PHRA. Appellant concedes that there is no judicial authority for her position but argues that the provisions of the Pennsylvania Human Relations Act so clearly proclaim a public policy against such discrimination that a violation of the provisions of the Act by an employer gives rise to an independent, common law cause of action for wrongful discharge. This argument must be rejected.

First, the PHRA preempts a tort action for wrongful discharge based upon discrimination. See: Sola v. Lafayette College, 804 F.2d 40 (3rd Cir.1986); Carney v. Commonwealth of Pennsylvania Human Relations Commission, 45 Pa.Cmwlth. 10, 404 A.2d 760, (1979). The employer, of course, has the hammer and there are far many more millions without the protection from discrimination afforded by union membership than possess such job security. It thus fell to the legislature to provide such protection by enactment of the Pennsylvania Human Relations Act. That enactment thereby preempted the method of redress for such discrimination as it condemned in the Act, and precluded the pursuit of such relief as appellant here seeks at common law.

Second, even if the Pennsylvania Human Relations Act had not specifically addressed the handicap and disability discrimination which appellant asserts was practiced against her, appellant would be unable to pursue redress at common law since, as a general proposition, there is no common law cause of action against an employer for termination of an at-will employment relationship. Reuther v. Fowler & Williams, Inc., 255 Pa.Super. 28, 31, 386 A.2d 119, 129 (1978). It is true that the Pennsylvania Supreme Court has created an exception to this general principle, but the exception is quite narrow and confined to a situation where the discharge of the at-will employee poses a threat to public policy. Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974). “The basis of this limited, non-statutory cause of action is an appreciation of the fact that the employer’s interest in running his business efficiently, profitably, and as he sees fit is not absolute; important as it is, it exists in the context of, and must sometimes yield to, other interests, including the interest of the employee in making a living and the interest of the public in seeing to it that the employer does not act abusively and a proper balance between the employer’s and the employee’s interests is preserved.” Yaindl v. Ingersoll Rand Compa ny, 281 Pa.Super. 560, 571, 422 A.2d 611, 617 (1980) (emphasis supplied). More specifically, in order to “overcome the employer’s interest in running a business, the employee must show a violation of a clearly mandated public policy which ‘strikes at the heart of a citizen’s social right, duties, and responsibilities.’ ” Turner v. Letterkenny Federal Credit Union, 351 Pa.Super. 51, 55, 505 A.2d 259, 261 (1985) quoting Novosel v. Nationwide Insurance Company, 721 F.2d 894, 899 (3rd Cir.1983).

This Court has in only two instances found public policy considerations sufficient to support a cause of action for wrongful discharge, namely: Hunter v. Port Authority of Allegheny County, 277 Pa.Super. 4, 419 A.2d 631 (1980) (as a result of the public policy against unnecessarily stigmatizing former offenders, a public employer could not deny a former offender employment on the basis of a prior conviction for which the offender had been pardoned, unless the conviction was reasonably related to fitness to perform the job sought); and Reuther v. Fowler & Williams, Inc., 255 Pa.Super. 28, 386 A.2d 119 (1978) (due to the importance of trial by jury in our legal system, an employer could not discharge an employee because the employee accepted service on a jury.)

In contrast to these two cases, this Court in Tourville v. Inter-Ocean Insurance Co., 353 Pa.Super. 53, 508 A.2d 1263 (1986), held that the discharge of an employee hospitalized for illness did not violate public policy. Nor was a public policy consideration sufficient to support a non-statutory, common law cause of action for wrongful discharge where: (1) an employee was discharged in retaliation for placing an advertisement with a competing paper, Martin v. Capital Cities Media, Inc., 354 Pa.Super. 199, 511 A.2d 830 (1986); (2) an employee was discharged as a result of an accusation of criminal behavior, Gillespie v. St. Joseph's University, 355 Pa.Super. 362, 513 A.2d 471 (1986); (3) an employee of a nursing home was discharged because she applied to the state for a license to run a competing facility, McCartney v. Meadowview Manor, Inc., 353 Pa.Super. 34, 508 A.2d 1254 (1986); (4) an employee was discharged for attempting to curtail the misuse of public tax revenues, Rossi v. The Pennsylvania State University, 340 Pa.Super. 39, 489 A.2d 828 (1985); (5) an employee was discharged after being wrongly accused and subsequently acquitted of criminal conduct in connection with his employment. Cisco v. United Parcel Service, Inc., 328 Pa.Super. 300, 476 A.2d 1340 (1984). See also: Darlington v. General Electric, 350 Pa.Super. 183, 504 A.2d 306 (1986); Turner v. Letterkenny Federal Credit Union, supra; Yaindl v. Ingersoll Rand Company, supra; Geary v. United States Steel Corp., supra.

Appellant, having failed to comply with the provisions of the Pennsylvania Human Relations Act, could not, under the facts of this case, proceed against her employer in the court of common pleas. Thus, the order of the distinguished Judge Daniel J. Ackerman dismissing the complaint filed by appellant, must be affirmed.

Judgment affirmed.

      . The use by the legislature of the word “shall” instead of "may” indicates their intent to make the administrative procedures of the Act mandatory rather than discretionary. See Drum v. Leta, 354 Pa.Super. 448, 453, 512 A.2d 36, 38 (1986).

      . While the precise language of the Act itself, as well as case precedent, clearly establish that the trial court properly ruled that the PHRA preempted a common law action for wrongful discharge, the remarks of certain of the members of the Pennsylvania House of Representatives, including those of Representative Hepford, indicate that the intent of the legislature was to provide only a limited right of access to the courts of common pleas:
      MR. HEPFORD: Mr. Speaker, when this bill passed the House, it contained an amendment before it went to the Senate — it is found on page 11 — which created a dual remedy for the complainant of discrimination. Prior to that amendment their rights were carried out before the Human Relations Commission, and their appeal from the order of the commission or the dismissal of the complaint was carried then to a court based on the record before the commission. You will note that in the amendment inserted by the Senate they provide that there shall be an additional remedy which changes the law of this Commonwealth materially and grants to the person who is the complainant of discrimination a dual right, so that the bill as it left this House provided for that dual right to be created in 30 days.
      This certainly was unsatisfactory, and I do not think that this House was fully aware that they were creating two avenues for a person to travel and dual cost of expense.
      The Senate wisely amended this to 180 days. If it were possible to remove this completely, I would offer that amendment, but it is not. The best that we can do is permit this action to remain in the Human Relations Commission and in their hands for at least a year before you permit the complainant to start a dual action in a court of law.
      The language of this bill clearly spells out that unless the commission dismisses the complaint or has not entered into an agreement with the complainant within 180 days, the complainant can then proceed anew in the court of common pleas.
      We do not think this change should be made. We think that all authority in connection with this should remain with the Human Relations Commission, and you should not, after 5 or 6 months, be able to start an action in a court of law as a complainant. For this reason, the only thing that we can do and we are trying to do with this amendment is extend that period of time to file an illegal complaint in a court and having a parallel action to 1 year I ask for support of the amendment.
      1974 Pa.Legis.J. 6396-6397 (November 19, 1974) (Remarks of Representative Hepford).

      . The Federal courts have held that a violation of public policy will be found to have occurred where an employee is discharged for (1) refusal to submit to a polygraph test, when a statute forbids such testing, Perks v. Firestone Tire & Rubber Co., 611 F.2d 1363 (3rd Cir.1979); (2) reporting motor vehicle violations, Shaw v. Russell Trucking Lines, Inc., 542 F.Supp. 776 (W.D.Pa.1982); and (3) refusing to participate in a lobbying effort, Novosel v. Nationwide Insurance Co., 721 F.2d 894 (3rd Cir.1983).


author: OLSZEWSKI, Judge:

text:
    520 A.2d 466
    Diana LEVINE, Appellee, v. William LEVINE, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 4, 1986.
    Filed Jan. 27, 1987.

      David L. Creskoff, Philadelphia, for appellant.
    Arnold Machíes, Philadelphia, for appellee.
    Before WICKERSHAM, OLSZEWSKI, and BECK, JJ.

       Panel denied appellant’s petition to discontinue appeal by order dated January 21, 1987; Wickersham, J., would have granted same.

   OLSZEWSKI, Judge:

This is an appeal from an order denying the exceptions filed by appellee-wife and appellant-husband from the recommendation of the master-in-support and ordering the appellant to pay $32.50 per week in spousal support and $65.00 per week in child support. Appellant argues in this appeal that the trial court abused its discretion in increasing, rather than decreasing, the amount of the child support and in failing to terminate spousal support.

On March 9, 1983, appellant was ordered by the trial court to pay $65 per week toward the support of his wife and his thirteen-year-old daughter. The parties were divorced on April 27, 1984. The trial court entered a bifurcated divorce decree and, consequently, did not dispose of the economic issues ancillary to the divorce. On July 6, 1984, appellant filed a petition to modify the support order of March 9, 1983, by requesting a decrease in the amount of the order. Appellee shortly thereafter filed a petition to increase the amount of the support order. After a hearing, the master-in-support recommended that appellant pay $32.50 per week in spousal support and $65 per week in child support. Both appellant and appellee filed exceptions to the master’s proposed order. On September 24, 1985, the trial court denied the exceptions of both parties and ordered appellant to pay $32.50 per week in spousal support and $65 per week in child support. The trial court did not convert the order for spousal support into an order for alimony pendente lite either at the time of the divorce or in the September 24, 1985, order from which the appellant is now appealing.

In reviewing spousal or child support orders, an appellate court may not interfere with the determination of the lower court unless there has been a clear abuse of discretion. Remick v. Remick, 310 Pa.Super. 23, 456 A.2d 163 (1983). We find that the trial court has not abused its discretion by increasing, rather than decreasing, the amount of the child support order. The trial court’s opinion adequately disposes of the issues raised by appellant with respect to the child support order and consequently, we affirm that portion of the trial court’s order increasing the amount of child support. Regarding appellant’s claim that the trial court abused its discretion in failing to terminate spousal support, we reverse the trial court’s order.

The characterization of the payments to appellee has proven troublesome in this case. The confusion was the result of several factors: the trial court’s continued reference to the payments as spousal support in its September 24, 1985, order even though the parties were divorced; the trial court’s failure to consider the nature of the payments in its opinion; appellant’s reference to the payments in his brief as spousal support; and appellee’s reference to the payments in her brief as alimony pendente lite.

Appellee, relying on Desch v. Desch, 329 Pa.Super. 22, 477 A.2d 883 (1984), argues that after the divorce of the parties, the trial court automatically continued appellee’s award in the form of alimony pendente lite. We, however, find that Desch does not apply in this case. The Desch case involved an order of the trial court which converted a pre-existing spousal support order into an order of alimony pendente lite. In the present case, the trial court has not converted the order of spousal support into an order of alimony pendente lite. While an order of spousal support may be converted properly into an order of alimony pendente lite by the trial court, the Desch case cannot be read as supporting the conclusion that an order of spousal support is automatically converted into an order of alimony pendente lite upon the trial court’s entry of a bifurcated divorce decree. This Court has long recognized that an award of spousal support is separate and distinct from an award of alimony pendente lite. See Prozzoly v. Prozzoly, 327 Pa. Super. 326, 475 A.2d 820 (1984). See also Hutchison v. Hutchison, 492 Pa. 118, 422 A.2d 501 (1980) (support is cause of action separate and distinct from alimony pendente lite).

Spousal support and alimony pendente lite each serve a sharply distinct purpose. The purpose of an order of support is to assure a reasonable living allowance to the party requiring support. See Commonwealth v. Turner, 258 Pa.Super. 388, 392 A.2d 848 (1978). The duty of providing spousal support arises out of the marital relationship itself and terminates when the marriage ends. See Remick v. Remick, 310 Pa.Super. 23, 456 A.2d 163 (1983). Alimony pendente lite, on the other hand, is awarded to sustain the dependent spouse on a basis of equality with the other spouse while maintaining or defending the divorce action. See McNulty v. McNulty, 347 Pa.Super. 363, 500 A.2d 876 (1985). We recognize that the circumstances of the parties are subject to changes throughout each of the steps in the dissolution of the marriage — living separate and apart, pending divorce, and after divorce. The trial court, consequently, must consider these changes in deciding whether to terminate the award, grant a new form of award, or change the amount of the award.

We recognize that in Ritter v. Ritter, this Court stated that “(s)pousal support and alimony pendente lite are indistinguishable in the context of a divorce action.” 359 Pa.Super. 12, 16, 518 A.2d 319, 321 (1986). Ritter, however, is limited to the procedural issue of the appealability of an order for spousal support where the wife requested either spousal support or alimony pendente lite in her answer to the husband’s divorce complaint rather than through an independent complaint for support or alimony pendente lite. See id., 359 Pa.Superior Ct. at 16, n. 2, 518 A.2d at 321, n. 2. Thus, Ritter is distinguishable from the instant case.

Since the trial court entered a bifurcated divorce decree in the present case, the award of spousal support could have been converted into an order of alimony pendente lite, pending adjudication of the economic aspects of the marriage. Otherwise, “the economically dependent spouse could be placed at a great disadvantage during the interim period if his or her right of support were eliminated by the prior entry of the divorce decree.” Desch, 329 Pa.Super. at 24, 477 A.2d at 884. In the present case, however, appelleewife failed to have the award converted from spousal support into an award of alimony pendente lite. Because the parties to the instant appeal are currently divorced, appellant-husband’s duty to provide spousal support has ended. Consequently, we reverse the trial court’s order of spousal support.

Order affirmed in part and reversed in part.

      . We recognize that orders of support and alimony pendente lite are not exclusive of each other. See McNulty v. McNulty, 347 Pa.Super. 363, 500 A.2d 876 (1985). Once a divorce action is initiated, a spouse who is receiving support is not precluded from pursuing a separate action for alimony pendente lite. The trial court will consider orders of support and alimony pendente lite in conjunction with each other as they relate to the obligor’s ability to pay. See McNulty, supra. After the trial court’s entry of the divorce decree, however, spousal support and alimony pendente lite must end. But if a bifurcated divorce decree is entered, spousal support must be terminated whereas payments in the form of alimony pendente lite may continue, pending the trial court’s disposition of the economic aspects of the marriage.


author: WIEAND, Judge:

text:
    520 A.2d 469
    CST, INC. v. Irving W. MARK and Gerald Mark and Irving W. Mark & Associates. Appeal of Irving W. MARK and Irving W. Mark & Associates.
    Superior Court of Pennsylvania.
    Argued Oct. 21, 1986.
    Filed Jan. 27, 1987.

      Martin Techner, Philadelphia, for appellants.
    Before WIEAND, OLSZEWSKI and CERCONE, JJ.
   WIEAND, Judge:

In this dispute between a corporate advertising agency and its vice president, the trial court, sitting without a jury, found that the corporate officer had violated a duty of undivided loyalty to the corporation by seizing a business opportunity for himself and, therefore, awarded damages to the corporation in the amount of forty thousand ($40,000.00) dollars. The court also found that the corporation was indebted to its officer for services rendered in the amount of $29,931.46. A motion for post-trial relief by the corporate vice president was denied by the court, and judgments were entered on the findings of the trial court. In this appeal by the corporate vice president, he contends that the trial court erred when it (1) found that he had seized a corporate opportunity for himself; (2) found that he had caused a loss to the corporation; and (3) calculated the amount which he was owed for services rendered and work performed. We disagree and affirm.

CST, Inc. is a Pennsylvania corporation engaged in the business of advertising, with its principal place of business in Devon, Chester County. Irving W. Mark is a specialist in the field of negotiating and preparing ads for insertion in newspapers. He conducted this business under the name of Irving W. Mark & Associates. On October 23, 1978, CST and Irving W. Mark & Associates entered an agreement by the terms of which Irving W. Mark & Associates was to negotiate and prepare all media insertions for CST’s clients on a commission basis. The agreement was to continue for a period of one year. On June 25, 1979, Mark agreed to become an employee of CST and was appointed Vice President of Media Operations, at an annual salary of $30,000.00, but with an increase in salary to $36,000.00, effective January 1, 1980. Mark’s duties as a vice president were essentially the same as they had been under the earlier agreement between CST and Irving W. Mark & Associates.

In early 1980, Mark was put in charge of an advertising project which CST was handling for the Commonwealth of Virginia. This project involved the preparation of a 1981 Trip Planning Guide which was to be distributed to the general public as an advertising supplement in various newspapers along the east coast. The project was completed successfully and resulted in substantial profits to CST. After this, CST expected to be designated by Stuart Ford, Inc., the advertising agent for the Commonwealth of Virginia, as the agency to prepare a Trip Planning Guide for 1982. With this purpose in mind, Mark contacted Stuart Ford and the Virginia State Travel Service in July, 1981. He was informed that whoever published the 1982 guide would be required to put up front an amount between $5,000.00 and $10,000.00 to compensate sales personnel who would be employed to sell advertising for the guide.

During July and August, 1981, Mark reported to Robert Chapin, the president of CST, that this money had to be advanced and that it was a prerequisite to CST’s obtaining the job of preparing the 1982 trip guide. Chapin procrastinated and did not commit himself regarding the necessary advance of funds. The trial, court found also that CST had been having cash flow problems at this time. When Stuart Ford, the Virginia advertising agency, began to put pressure on Mark to obtain a definite commitment from CST regarding its willingness to advance the necessary funds and accept the project, Chapin continued to be noncommital. Finally, sometime between August 8 and August 13, Mark travelled to Virginia, where he told Stuart Ford that CST had not agreed to come up with the front money but that he would do so and would take the advertising job in the name of Irving W. Mark & Associates. Mark testified that he did this despite the fact that no one at CST had told him that CST was no longer interested in the project or that it would not advance the necessary funds. Mark also testified that before accepting the project for himself, he had told Chapin and other top level employees at CST that he would be willing to advance the sales money and accept the project on behalf of his own company if CST were unwilling to meet the conditions imposed by the Commonwealth of Virginia. However, he did not inform Chapin when he decided to pursue the project himself, and CST did not consent to his accepting the job for his own account.

On October 15, 1981, CST offered to raise Mark’s salary even though, as the trial court found, CST was then aware that Mark had taken the Virginia project on behalf of his own company. One month later, Chapin told Mark that CST was in financial trouble. Thereafter, Charles Rhodes, another officer of CST, travelled to Virginia on behalf of CST and discussed the 1982 travel guide project with officials of the Virginia State Travel Service. As a result of this meeting, Stuart Ford, Inc. requested Mark to execute a release of his rights to the project. Mark complied with this request, and CST was offered the job. By that time, however, the Commonwealth of Virginia also required the posting of a $100,000.00 performance bond. CST was unable to post the necessary bond, and the 1982 guide was not published. On November 19, 1981, Mark was discharged by CST. By the end of 1981, CST had ceased doing business.

“Officers and directors ... stand in a fiduciary relation to the corporation, and [must] discharge the duties of their respective positions in good faith____” Act of May 5, 1933, P.L. 364, § 408, 15 P.S. § 1408, as amended.

“ * * * [Officers and directors] must devote themselves to the corporate affairs with a view to promote the common interests and not their own, and they cannot, either directly or indirectly, utilize their position to obtain any personal profit or advantage other than that enjoyed also by their fellow shareholders: Bird Coal and Iron Co. v. Humes, 157 Pa. 278, 287, 27 A. 750, 752 [(1893)]; Porter v. Healy, 244 Pa. 427, 435, 436, 91 A. 428, 431 [(1914)]. In short, there is demanded of the officer or director of a corporation that he furnish to it his undivided loyalty; if there is presented to him a business opportunity which is within the scope of its own activities and of present or potential advantage to it, the law will not permit him to seize the opportunity for himself____ Bailey v. Jacobs, 325 Pa. 187, 194, 189 A. 320, 324 [(1937)].”

Seaboard Industries, Inc. v. Monaco, 442 Pa. 256, 261-262, 276 A.2d 305, 309 (1971), quoting Lutherland, Inc. v. Dahlen, 357 Pa. 143, 151, 53 A.2d 143, 147 (1947). See: Hill v. Hill, 279 Pa.Super. 154, 160-161, 420 A.2d 1078, 1081 (1980). Where, however, the corporation is unable to avail itself of a business opportunity, an officer or director may accept the same for his or her own benefit. See: Robinson v. Brier, 412 Pa. 255, 257, 194 A.2d 204, 206 (1963). Also, “an officer or director may seize a corporate opportunity if the same is made known to the shareholders, who consent to the acquisition of the opportunity by the individual officer or director instead of the corporation, and such action is not detrimental to the creditors of the corporation.” Hill v. Hill, supra, 279 Pa.Super. at 163, 420 A.2d at 1082, citing Stony Brook Lumber Co. v. Blackman, 286 Pa. 305, 309, 133 A. 556, 557 (1926).

Whether a business opportunity is a “corporate” opportunity is a question of fact to be determined from the circumstances existing at the time when it arose. See: Borden v. Sinskey, 530 F.2d 478, 490 (3d Cir.1976); 18B Am.Jur.2d Corporations § 1792, at 644 (1985). In the case sub judice, the evidence was sufficient to support the trial court’s finding that the preparation of the 1982 Trip Planning Guide was a corporate, business opportunity. Mark does not contest this finding. He argues, however, that he was able to undertake the project himself after it became apparent that CST was unwilling and/or unable to commit itself by advancing the funds required by the Commonwealth of Virginia.

There is evidence to support the trial court’s finding that CST did not refuse to advance the money demanded by the Commonwealth of Virginia or discontinue its interest in obtaining a contract to create the Trip Planning Guide. Its hesitation about agreeing to the conditions imposed by Virginia, even if frustrating to Mark, who was on the firing line, did not entitle Mark to discontinue his efforts on behalf of his employer and seize the opportunity for himself. The trial court found, and the evidence supports, that Mark neither sought nor received permission from CST to accept the business opportunity for himself.

Mark also contends that CST was financially unable to advance the monies necessary to hire the sales people and, therefore, could not have accepted the contract. Because of this financial inability, Mark argues, the project ceased to be a corporate opportunity and could properly be accepted by him for his personal benefit. We cannot agree.

[Financial inability of a corporation to take advantage of a corporate opportunity is a defense for corporate officers or directors charged with liability for taking an opportunity. It has been said, however, that such financial inability must amount to insolvency to the point where the corporation is practically defunct. Mere technical insolvency, such as inability to pay current bills when due or mere inability to secure credit, will not suffice. The corporation must be actually insolvent.

18B Am.Jur.2d Corporations § 1790, at 642-643 (1985) (footnotes omitted). See: 8A P.L.E. Corporations § 275, at 397 (1971); Annotation, Financial Inability of Corporation to Take Advantage of Business Opportunity as Affecting Determination of Whether “Corporate Opportunity” was Presented, 16 A.L.R.4th 185, § 4[b] (1982). See also: Hill v. Hill, supra, 279 Pa.Super. at 162, 420 A.2d at 1082, citing Robinson v. Brier, supra. The evidence in this case showed only that CST was having cash flow problems at the time when Mark seized the Virginia project for himself. There was no evidence that CST was near insolvency or that it could not have produced the funds necessary to secure the project. Thus, the record does not permit a reviewing court to conclude that the trial court erred by finding that Mark had seized a corporate opportunity when he secured the Virginia project for his own company.

As a general rule, “the conduct forbidden in the acquisition of interests adverse to the corporation is the realization of a profit.” Weissman v. A. Weissman, Inc., 382 Pa. 189, 193, 114 A.2d 797, 799 (1955). Thus, “the test of [the officer’s] liability is whether he has unjustly gained enrichment.” Id. (emphasis deleted). See: Seaboard Industries, Inc. v. Monaco, supra; Rivoli Theatre Co. v. Allison, 396 Pa. 343, 152 A.2d 449 (1959); Howell v. McCloskey, 375 Pa. 100, 99 A.2d 610 (1953); Lutherland, Inc. v. Dahlen, supra; Bailey v. Jacobs, supra; Hill v. Hill, supra. In the instant case, the trial court found that Mark had not been unjustly enriched by the transaction. Not only had he released any interest he might have had in a contract to perform the project, but the evidence showed that Mark, in fact, had lost more than $5,000.00 of his own money in the transaction.

The court found, however, that Mark’s breach of the fiduciary duty owed to his corporate employer had been a substantial factor in bringing about and, therefore, a legal cause of the corporation’s failure to get the contract. On this basis, the court made an award of damages measured by the court’s estimate of the profits which the corporation had lost by not getting the job. This was in accord with existing law. See: Hill v. Hill, supra (directors of corporation may be held liable for any losses sustained by corporation caused by breach of fiduciary obligation); Boyd v. Cooper, 269 Pa.Super. 594, 597, 410 A.2d 860, 861 (1979) (“[w]here an officer or director acquires information in confidence and adopts or uses it for his own private benefit to the exclusion and detriment of the corporation, ... he may be subject to liability for damages sustained as a result of such breach of his fiduciary duties.”). Cf. Howell v. McCloskey, supra (officer and director of corporation did not breach fiduciary obligation by acquiring outstanding shares of corporations stock where there was no existing resolution of the corporation concerning the outstanding shares, no detriment to the corporation and no unjust enrichment).

Appellant contends that the evidence was insufficient to support the trial court’s findings (1) that CST’s profits would have been $40,000.00 and (2) that his conduct was the legal cause of CST’s failure to obtain the contract. These are close questions. However, “[w]hen a Pennsylvania appellate court reviews determinations of questions of fact, its only function is to examine and ascertain whether there is competent evidence in the record from which the facts necessary to sustain the judgment might properly be found____ The test is not what conclusion the appellate court would have reached if it had been its province to find the facts, but whether there was evidence from which the facts could reasonably be found.” 16 Standard Pa.Practice 2d § 91:113 (1983) (footnotes omitted). See: Commonwealth ex rel. Gibson v. DiGiacinto, 497 Pa. 66, 70, 439 A.2d 105, 107 (1981); Delahanty v. First Pennsylvania Bank, 318 Pa.Super. 90, 113-114, 464 A.2d 1243, 1255 (1983); Stowe v. Booker, 284 Pa.Super. 53, 57, 424 A.2d 1388, 1390 (1981).

Because our scope of review is thus limited, we are constrained to accept the findings of the trial court. Although, the evidence would have supported contrary findings, we cannot say that the trial court arbitrarily rejected evidence or abused its discretion when it concluded that except for appellant’s breach of the duty of undivided loyalty to the corporation, CST would have been hired to produce the Virginia Trip Planning Guide and would have realized therefrom a profit of $40,000.00.

Finally, it is contended that the trial court erred when it found that CST owed Irving W. Mark & Associates only $29,931.46 and not $175,717.23, as claimed, for services rendered. The trial court found that CST owed Mark & Associates the sum of $883.95 as the balance remaining due under an agreement reached by the parties in December 1979, as well as $29,047.51, which was represented by an invoice which Mark presented to CST in December, 1979. Although Mark & Associates contended at trial that they were owed $175,717.23, the trial court found that such an indebtedness had not been proven. We have reviewed the record and find no reason to disturb the trial court’s findings with regard to this claim.

Affirmed.

      . Stuart Ford, Inc. had "fronted” this money the prior year, but refused to do so in 1982.


author: OLSZEWSKI, Judge: WIEAND, Judge,

text:
    520 A.2d 473
    James F. MICHAEL, Appellant, v. Linda L. MICHAEL, Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 22, 1986.
    Filed Jan. 27, 1987.

      Thomas A. James Jr., Bloomsburg, for appellant.
    William S. Kreisher, Bloomsburg, for appellee.
    Before WIEAND, OLSZEWSKI and CERCONE, JJ.
   OLSZEWSKI, Judge:

Appellant appeals from the denial of his petition for child support by the Court of Common Pleas of Columbia County. This appeal raises two issues: (1) whether the trial court properly exercised its discretion in finding that appellee (mother) is not required to make payments for the support of her minor child, who is presently in the custody of appellant (father); and (2) whether an agreement between the parties negated appellee’s obligation to support the child. For the reasons stated below, we affirm the order of the trial court.

Appellant and appellee were married in April 1972 and divorced in July 1982. During their marriage, they had one child, Chad James Michael, who was born on September 14, 1972. At the time of the divorce, custody of the minor child was awarded to appellant, who presently retains custody, but an order for child support was neither sought by the parties nor entered by the trial court. Appellant agreed to assume full responsibility for the support of Chad.

Appellant, however, did file a petition for child support against appellee in June 1984, .almost two years after the parties were divorced. After a hearing before the Honorable Jay W. Meyers, the trial court denied appellant’s petition for child support, and appellant filed an appeal with the Superior Court, docketed at No. 00054 Philadelphia 1985. In this first appeal, the Superior Court remanded the case to the trial court since the trial court failed to file an opinion pursuant to Pa.R.A.P. 1925(a) stating the facts and rationale underlying its denial of the child support petition. After the trial court filed an opinion supporting its order, appellant filed the present appeal with the Superior Court.

The appellate scope of review in child support cases is very narrow. See Butler v. Butler, 339 Pa.Super. 312, 315, 488 A.2d 1141, 1142 (1985). A trial court has broad discretion in awarding child support payments. See Commonwealth ex rel. Stump v. Church, 333 Pa.Super. 166,168-69, 481 A.2d 1358, 1359 (1984). In Shondel v. Leedom, 350 Pa.Super. 274, 504 A.2d 353 (1986), the Superior Court discussed the extent of appellate review of a trial court’s order regarding child support. The Court noted:

[W]e must note that it is well settled that we cannot disturb a lower court’s order of support absent a clear abuse of discretion or law. A finding of such abuse is not lightly made and must rest upon a showing of clear and convincing evidence. The lower court must be upheld on any valid ground.

Id., 350 Pa.Superior Ct. at 279, 504 A.2d at 355-56 (citations omitted). See also Biler v. Biler, 353 Pa.Super. 49, 51-52, 508 A.2d 1261, 1263 (1986) (an order of support will not be disturbed unless there is a clear abuse of discretion).

Appellant’s primary contention is that the trial court abused its discretion in refusing to enter an order requiring appellee to contribute to the support of her minor child. In essence, appellant contends appellee should be required to pay at least a minimal amount of child support even though appellant’s income is significantly larger than appellee’s income. We, however, believe the trial court properly exercised its discretion in dismissing appellant’s petition for child support from appellee.

In Pennsylvania, both parents share equal responsibility for supporting a minor child, and child support orders entered by a trial court must be in the best interests of the child. See Shondel, 350 Pa.Super. at 279-80, 504 A.2d at 356. See also Fee v. Fee, 344 Pa.Super. 276, 282-83, 496 A.2d 793, 796 (1985) (“Both parents bear equal responsibility for supporting their children and ‘must be required to discharge the obligation [of child support] in accordance with their capacity and ability.’ ”). In confronting petitions and requests for child support, trial courts must ensure that support orders are fair, not confiscatory, and consistent with the parents’ and children’s station in life and customary standard of living. See Sutliff v. Sutliff, 339 Pa.Super. 523, 538-39, 489 A.2d 764, 771 (1985); Commonwealth ex rel. Robinson v. Robinson, 318 Pa.Super. 424, 425-26, 465 A.2d 27, 28 (1983).

In Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984), the Pennsylvania Supreme Court enunciated a series of guidelines to be followed by trial courts in ascertaining and issuing child support orders. The Melzer guidelines were aptly summarized in a recent Superior Court decision, Reiss v. DeLuca, 353 Pa.Super. 622, 510 A.2d 1239 (1986). The Superior Court stated:

In Melzer, our Supreme Court set forth uniform guidelines for the calculation of child support. It held that in making such a calculation, the hearing court must determine: (1) the reasonable expense of raising the children involved; and (2) the respective abilities of the parents to support their children. After it has made these determinations, the court is to calculate each parent’s total support obligation in accordance with the formula set forth in Melzer. Finally, once each parent’s total obligation has been defined, the hearing court must determine what portion of that obligation may be offset by support provided directly to the children. The total support obligation may be offset only by such voluntary expenditures as actually satisfy the obligation of reasonable and necessary support. Although the figures thus arrived at for the amount of support which must be satisfied by way of support payments to the other parent is not required by Melzer to be mechanically adhered to by the hearing court, it must be determined and used by the court as a framework for its decision.

Id., 353 Pa.Superior Ct. at 625, 510 A.2d at 1240-41. In essence, the trial court’s support order must reflect consideration of both the reasonable needs of the child and the financial resources and reasonable living expenses of each parent. Accord Fee, 344 Pa.Super. at 282, 496 A.2d at 796.

In the present case, our review of the trial court’s record and opinion reveals the trial court’s dismissal of appellant’s child support petition was proper when viewed in light of Melzer and its progeny. First, the reasonable needs of Chad James, the minor child, were addressed in both appellant’s testimony and the trial court opinion. Appellant testified that he had provided all of the child’s support since the divorce two and one-half years earlier, when appellant had been awarded custody of the child. In addition, appellant also testified that he had no trouble supporting the child and that his income had increased since the divorce. See N.T. at p. 4. After review of appellant’s testimony, we believe the trial court did not abuse its discretion in concluding that “he [appellant] was not seeking child support because of any increased need by the child for support.” Trial court opinion at p. 2.

Second, the trial court opinion and record also reflect the widely disparate earning capacities and income of the parties. Appellant earns over $26,000 a year as a personnel analyst at Bloomsburg College, and appellee, unemployed for a long period after the divorce, now earns approximately $8,800 a year as a secretary. In addition, appellant, as previously noted, testified that his income had increased since the divorce and that he had no trouble supporting his child. Further, appellant has remarried, and his present spouse is also employed, bringing additional income into his home. Though “ ‘there is nothing in our law which requires [a] new spouse to support minor children of [a prior] marriage’ ..., Pennsylvania courts have repeatedly acknowledged that to the extent that a parent’s expenses are lessened by a contribution of a third party, the parent may have increased financial resources available for child support.” Fee, 344 Pa.Super. at 283, 496 A.2d at 796. See also Commonwealth ex rel. Mainzer v. Audi, 266 Pa.Super. 122, 124, 403 A.2d 124, 125 (1979).

In essence, the trial court did not abuse its discretion in dismissing appellant’s petition for child support since it considered the following factors. First, the child’s needs, which have not increased since the divorce, are being fully met by appellant. Second, appellant originally agreed to provide full support to the child in exchange for custody of the child and appellant presently acknowledges that his income has increased since the divorce. Last, appellee was unemployed for a long period after the divorce and, though she is presently employed, her income is only approximately one-third the size of appellant’s income. The trial court, consequently, reasonably believed appellant was capable of adequately supporting the child without any additional contributions by appellee.

Accordingly, we affirm the order of the trial court.

WIEAND, J., files dissenting opinion.

WIEAND, Judge,

dissenting:

I respectfully dissent. “Support, as every other duty encompassed in the role of parenthood, is the equal responsibility of both mother and father. Both must be required to discharge the obligation in accordance with their capacity and ability.” Melzer v. Witsberger, 505 Pa. 462, 468, 480 A.2d 991, 994 (1984), quoting Conway v. Dana, 456 Pa. 536, 540, 318 A.2d 324, 326 (1974) (emphasis added). “[E]very parent has a duty to support his or her minor children ... in accordance with the parents’ respective abilities to pay____” Costello v. LeNoir, 462 Pa. 36, 40, 337 A.2d 866, 868 (1975).

In the instant case, the trial court did not find that appellee, the natural mother of a minor child, was financially unable to contribute to the support of her child, who was in the custody of the father. Therefore, an order of support should have been entered. It was not a complete defense to the mother’s duty to support her child that the father’s income exceeded that of the mother.

I would reverse and remand to the trial court for the entry of an order which is consistent with the decision of the Supreme Court in Melzer v. Witsberger, supra.

      . Our resolution of appellant’s first issue (see discussion infra) renders unnecessary a decision on appellant’s second issue concerning whether an agreement between the parties negated appellee’s obligation to support the minor child. We, however, note that "[e]ach parent has a duty which is ‘well-nigh absolute’ to support his or her minor children and each may have to make sacrifices in order to meet this burden.” Commonwealth ex rel. Scanlon v. Scanlon, 311 Pa.Super. 32, 40, 457 A.2d 98, 102 (1983). See also Sutliff v. Sutliff, 339 Pa.Super. 523, 538, 489 A.2d 764, 771 (1985) (parent’s obligation to support his or her minor children is paramount and "well-nigh absolute”); Commonwealth ex rel Loring v. Loring, 339 Pa.Super. 92, 95, 488 A.2d 324, 326 (1985) (support obligations are well-nigh absolute). In addition, the Superior Court has "consistently held that a child’s entitlement to support is a right that arises from the parent-child status; it is not a property right, and cannot be “bargained away’ by contract.” Commonwealth Department of Public Welfare ex rel. Hager v. Woolf, 276 Pa.Super. 433, 438-39, 419 A.2d 535, 538 (1980). See also Commonwealth ex rel. Silverman v. Silverman, 180 Pa.Super. 94, 98, 117 A.2d 801, 802 (1955) (parents cannot bargain away minor child's right to support).

      . The income of the parties is based on their gross income for 1983, the last full year prior to the trial court’s hearing.

      . In response to question on direct examination, appellant stated that since the divorce, no significant financial or personal changes had occurred. See N.T. at p. 2.


text:
    520 A.2d 477
    PENNSYLVANIA INSURANCE GUARANTY ASSOCIATION, Liquidator of Amherst Insurance Company, Appellant, v. Tammy A. SCHREFFLER, Executor of the Estate of Richard Schreffler, Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 23, 1986.
    Filed Jan. 27, 1987.

      Edward J. Carney, Jr., Media, for appellant.
    W. Russell Carmichael, Media, for appellee.
    Before WIEAND, OLSZEWSKI and CERCONE, JJ.
   OLSZEWSKI, Judge:

This is an appeal from a declaratory judgment filed by the Court of Common Pleas of Delaware County. Appellant, the Pennsylvania Insurance Guaranty Association (“PIGA”), sought a determination of the total amount of funds available to appellee under a contract of insurance issued by Amherst Insurance Company (“Amherst”) to Richard Keenan, t/a Keenan’s Tavern (“Keenan’s Tavern”). Amherst Insurance Company is now insolvent and the PIGA is handling pending claims pursuant to applicable law. 40 Pa.Stat.Ann.Sec. 1701.101 et seq. Because the Amherst insured, an indispensable party, was not joined, we vacate the judgment and dismiss the action.

Appellee, Tammy Schreffler, executrix of the estate of Richard Schreffler, is a claimant against the Amherst insurance policy by virtue of a September 5, 1981 automobile accident in which appellee’s decedent, the driver, was fatally injured. The accident also resulted in injuries to a passenger in the deceased’s car, George Burns. Appellee and Burns each filed suit in the Court of Common Pleas of Delaware County against Richard Keenan and Jean Keenan, t/a Keenan’s Tavern. These cases involved claims against Keenan’s Tavern for serving alcoholic beverages to appellee’s decedent and Burns while the two were visibly intoxicated. According to appellant, at the time the two cases were called for trial, all parties agreed to the Honorable Charles Keeler’s recommendation that the Burns case be settled for the $25,000 coverage available, and that a declaratory judgment proceeding be brought to determine whether any coverage was still available under the Amherst insurance contract. Complaint for declaratory relief, paragraph 11.

Appellant subsequently filed the instant action on June 20, 1985 seeking a declaration that no coverage was available for appellee Schreffler under the Amherst policy. The policy provided Keenan’s Tavern with both premises liability coverage and liquor liability coverage. The premises liability coverage insured against bodily injury in the amount of $50,000 for each occurrence with a $50,000 aggregate limit. The liquor liability insurance provided maximum coverage of $25,000 for each common cause with a $50,000 aggregate limit. Appellant argued in the lower court that none of the premises coverage is available to appellee because exclusion H applies. Exclusion H excludes coverage for “... bodily injury or property damage for which the insured or his indemnitee may be liable (1) as a person or organization engaged in the business of manufacturing, distributing, selling or serving alcoholic beverages ...” Appellant also asserted that no liquor liability coverage is available by virtue of the $25,000 payment to the claimant Burns. Appellant argued below and contends on appeal that any injuries received by Burns and appellee’s decedent resulted from the common cause of the serving of the decedent. The liquor liability coverage provides that:

The limit of liability stated in the schedule as applicable to each “common cause” is the total liability of the company for all damages sustained by one or more persons as the result of the selling, serving or giving of any alcoholic beverage to any one person.

Under appellant’s interpretation of the policy, the $25,000 settlement with Burns exhausted the maximum amount of liquor liability coverage available and therefore left nothing available to appellee in its suit against Keenan’s Tavern.

On May 27, 1986, Judge Keeler entered an amended judgment which declared that (1) appellant has no obligation to appellee under the insurance policy’s premises liability coverage and (2) appellee has the right to seek compensation under the policy’s liquor liability coverage up to an amount of $25,000. Appellant subsequently filed this appeal challenging the trial court’s decision that appellee has a right to seek compensation under the liquor liability coverage.

Whether or not a declaratory judgment is proper and is an available remedy is the first question for determination on appeal. Bracken v. Duquesne Electric & Manufacturing Co., 419 Pa. 493, 495, 215 A.2d 623, 624 (1966). Instantly, appellee challenges the trial court’s jurisdiction to issue a declaratory judgment. Specifically, appellee contends that jurisdiction is lacking due to the failure to join an indispensable party — the insured under the Amherst insurance policy. We agree.

When declaratory relief is sought, our Declaratory Judgments Act mandates that all persons who have or claim any interest which would be affected by the declaration be made parties to the proceeding. 42 Pa.Cons.Stat.See. 7540. This statutory provision constitutes a jurisdictional requirement with respect to joinder of indispensable parties. See Vale Chemical Co. v. Hartford Accident and Indemnity Co., 512 Pa. 290, 516 A.2d 684 (1986). We must therefore determine whether the insured in the case at bar had or claimed any interest which would have been affected by the declaration. We find that Keenan’s Tavern had such an interest and therefore should have been joined as a party to this proceeding.

In its request for declaratory relief, appellant asked the trial court to interpret the Amherst insurance policy with respect to the coverage available for appellee’s suit against Keenan’s Tavern. Clearly, Keenan’s Tavern had an interest in seeing that the court construed its insurance policy as providing the maximum amount of coverage possible for any judgment entered against it in the Schreffler action. Keenan’s Tavern also had an interest in ensuring that appellant performed its obligations to defend Keenan’s Tavern in the Schreffler action. Obviously, these interests have not been represented by appellant, who contended below and contends on appeal that no coverage is available under the policy.

Prior case law supports our conclusion that Keenan’s Tavern, the insured, is an indispensable party in this action. Our Supreme Court recently reaffirmed the rule that persons asserting claims against an insured are indispensable parties in a declaratory judgment action on the issue of coverage between the insured and its insurance carrier. Vale Chemical Co. v. Hartford Accident and Indemnity Co., supra. In such cases the failure to join a claimant whose interests would be affected has been held to be fatal error. Id. In Vale Chemical, the court indicated that the tort plaintiff’s interest was in seeing that an insurance company paid the judgment against its insured.

In the instant case, the legal relation of Keenan’s Tavern to appellant is arguably even stronger than that in the foregoing cases in which the claimants against the insurance carrier’s insured were ruled indispensable. Here, Keenan’s Tavern has a direct contractual relationship with the carrier whose claims appellant is handling. Ostensibly, Keenan’s Tavern entered into the insurance contract in question to limit its obligations with respect to claims such as those involved in appellee’s action against it. These are the very obligations which would have been affected by the declaration sought. See Piper Aircraft v. Insurance Company of North America, 53 Pa.Commw. 209, 417 A.2d 283 (1980) (court concluded that the Pennsylvania Department of Transportation, an insured, was an indispensable party to a declaratory judgment action by a co-insured against its insurance carrier regarding the contractual duty to defend). See also Insurance Company of Pennsylvania v. Lumbermens Mutual Casualty Company, 405 Pa. 613,177 A.2d 94 (1962).

Because we find that Keenan’s Tavern is an indispensable party who has not been joined, the jurisdictional requirements of the Declaratory Judgments Act have not been met. Accordingly, we do not address the merits of this appeal.

The amended judgment of the Court of Common Pleas of Delaware County is vacated and the action is dismissed.

      . Appellee’s suit was filed under No. 82-5335 while Burns’s action was brought under No. 83-7491.

      . Appellee, however, claims that its counsel was not present when the settlement was achieved between the parties to the Burns case and that it “did not agree that any policy coverages previously determined were in doubt or subject to re-examination due to the Burns settlement, or for any other reason." Defendant’s answer to complaint for declaratory relief, paragraph 11.

      . Appellant, however, reserved the right to contend in any subsequent trial that the decedent and Burns were not served while intoxicated. Complaint for declaratory relief, paragraph 13.

      . Even if appellee had not raised this issue, Pa.R.C.P. 1032(2) allows a court to raise sua sponte issues of subject matter jurisdiction and failure to join an indispensable party. Vale Chemical Co. v. Hartford Accident and Indemnity Co., 512 Pa. 290, 516 A.2d 684 (1986).

      . Presumably, if the court determined that no coverage was available, appellant would have refused to defend Keenan’s Tavern in appellee’s action. See Section 1701.201(b)(l)(ii) of the Pennsylvania Insurance Guaranty Association Act which provides:
      (1) The association shall:
      (ii) Be deemed the insurer to the extent of its obligation on the covered claims and to such extent shall have all rights, duties, and obligations of the insolvent insurer as if that insurer had not become insolvent.
      40 Pa.Stat.Ann.Sec. 1701.201(b)( 1 )(ii) (emphasis added).

      . We note that appellant did not file a motion for post-trial relief. Although we do not address the issue in view of our disposition of the matter, we observe that the statutory section providing that a declaration shall have the force of a final judgment or decree, see 42 Pa.C.S.A. Sec. 7532, does not render a declaratory judgment immediately appealable in derogation of the normal rules of procedure. Hertz v. Hertz, 302 Pa.Super. 259, 261, 448 A.2d 626, 627 (1982). See Pa.R.C.P. 1601(a), 227.1.

      . Assuming personal jurisdiction can be had, joinder of Keenan’s Tavern would give the trial court jurisdiction to entertain this action.