text:
    594 A.2d 772
    COMMONWEALTH of Pennsylvania v. Sharon HOFFMAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 17, 1991.
    Decided Aug. 12, 1991.

      Stephen P. Vlossak, Sr., Asst. Public Defender, Palmer-ton, for appellant.
    Richard W. Webb, Dist. Atty., Palmerton, for Com., appellee.
    Before CIRILLO, DEL SOLE and BROSKY, JJ.
   BROSKY, Judge.

This appeal is from a judgment of sentence following appellant’s bench trial conviction of two counts of harassment and one count of disorderly conduct. Post-trial motions were denied, and appellant was sentenced to pay a fine of $600.00 plus court costs.

On appeal, appellant challenges the sufficiency of the criminal information. Appellant claims that the information did not include the harassment or disorderly conduct charges, thereby depriving the trial court of jurisdiction. Appellant also asserts that the lack of formal notice in the information of the summary offense charges violated her right to due process of law. We are constrained to vacate the judgment of sentence and discharge appellant.

The facts giving rise to this incident are as follows: The victims, Harold Nothstein and Gayle Smale, drove to appellant’s apartment at approximately 10:00 a.m., on Saturday, August 5, 1989, in order to pick up Mr. Nothstein’s son pursuant to court-ordered visitation. (N.T. 7, February 14, 1990). Appellant is the mother of the child.

Outside her apartment, appellant gave the child to Mr. Nothstein and stated to him that she opposed further visitation. An argument ensued. Mr. Nothstein testified that appellant hit him about the face and neck causing a laceration on his forehead. Id., 20. He also testified that he could not stop appellant because he was trying to protect his two-year old son whom he held in his arms. Id. Appellant testified that she did not strike Mr. Nothstein. Id., 44. Appellant confirmed, however, that she did punch Ms. Smale, Mr. Nothstein’s companion, in the nose. Id. Ms. Smale’s nose was broken and required surgery. Id., 35. After the initial assault upon Ms. Smale, the latter and appellant engaged in an altercation, as a result of which Ms. Smale incurred puncture wounds on her leg when appellant bit her. Id. Ms. Smale testified that the attack was unprovoked. Id., 13-14. Appellant stated that Ms. Smale provoked her by spitting in her face. Id., 44. The jury, however, credited appellant’s version of the incident, thereby resulting in an acquittal on the misdemeanor offense of simple assault.

The procedural scenario giving rise to the instant appeal is as follows: On September 8, 1989, the Commonwealth filed a criminal complaint charging appellant with two counts of simple assault, two counts of harassment and one count of disorderly conduct. The Commonwealth filed a criminal information on November 27, 1989, which formally charged appellant with two counts of simple assault. The information did not charge appellant with the summary violations. A jury trial was held on February 14, 1990. As noted above, appellant was acquitted on both counts of simple assault. After the jury verdict, the trial court, as fact finder on the summary offenses, found appellant guilty of two counts of harassment and one count of disorderly conduct.

As a matter of procedure, the summary offenses were part of the court case. A summary case is “a case in which the only offense or offenses charged are summary offenses.” Pa.R.Crim.P. 3(s). In a summary case, the Commonwealth is required only to advise the defendant of the charges in the criminal complaint before trial. Pa. R.Crim.P. 83(a)(1). An indictment or information is not required. However, this is not a summary case. Where at least one offense charged is a misdemeanor, the case is a court case. Pa.R.Crim.P. 3(g). “Any summary offenses in such a case, shall be charged in the same complaint as the higher offenses and shall be disposed of as part of the court case.” Pa.R.Crim.P. 51, Explanatory Comment. See 18 Pa.C.S. § 110; See also Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973); Commonwealth v. Harris, 400 Pa.Super. 12, 582 A.2d 1319 (1990). Therefore, since the rules governing this case fall under Chapter 100, Pa. R.Crim.P. 83(a)(1) is inapplicable. Pa.R.Crim.P. 51, Explanatory Comment. Pursuant to Pa.R.Crim.P. 225(d), the Commonwealth was required to file an information which contained all charges on which appellant was to be tried. An information constitutes the formal accusation necessary in a court case in counties which have abolished the grand jury system of formal charge. See Pa. Const;, art. 1, §§ 9, 10; Pa.R.Crim.P. 225(d); Commonwealth v. Speller, 311 Pa.Super. 569, 458 A.2d 198 (1983).

In Commonwealth v. Little, 455 Pa. 163, 168-169, 314 A.2d 270, 273 (1974), our supreme court held that, as a general proposition, subject matter jurisdiction does not obtain unless and until formal accusation of the charge(s) is given in the indictment. In Commonwealth v. Komatowski, 347 Pa. 445, 453, 32 A.2d 905, 909 (1943), our supreme court stated that our system of justice requires the Commonwealth to accurately and meticulously draft the indictment so that the defendant may know the charges against which he must defend at trial. “[H]e may not be convicted of an offense which is not the accusation made against him or any constituent thereof.” Id. Thus, since the Commonwealth failed to formally charge Mr. Komatowski of third-degree murder in the indictment, the trial court was without jurisdiction to convict and sentence him on that charge.

Commonwealth v. Speller, supra, relying upon Little and Komatowski, held that the failure to include a summary charge of harassment in the information which charged the misdemeanor offense of terroristic threats precluded the trial court from exercising jurisdiction on the summary offense of harassment. 311 Pa.Super. at 578-579, 458 A.2d at 203. The court further opined that a criminal defendant cannot be convicted of an offense which is not included in the information and which was not a constituent of the offense contained in the information. Id., 311 Pa.Superior Ct. at 579, 458 A.2d at 204; Cf. Commonwealth v. Longo, 269 Pa.Super. 502, 503, 410 A.2d 368, 369 (1979) (once the Commonwealth has filed the charges in an indictment, a criminal defendant cannot plead guilty to an offense which is not charged in that indictment). Therefore, it is apparent from the foregoing authorities that all charges for which an accused is to stand trial must be contained in a criminal information.

In this case, appellant waived formal arraignment. However, she received a copy of the information through the mail. Nevertheless, she is not contesting lack of notice of the charges, generally. Instead, she challenges the facial validity of the criminal information on the basis that it did not list the summary offenses for which she was ultimately convicted in a bench trial and sentenced. Concomitantly, she challenges the jurisdiction of the court to hear the summary offenses and convict her because of the absence of these charges in the criminal information. Appellant’s argument to this court is that while the information contained the misdemeanor offense of simple assault, she was denied formal, adequate notice of the summary offenses charged against her. As a general proposition, an accused is entitled to adequate formal notice of the charges for which he will be required to stand trial. Pa. Const., art. 1, §§ 9, 10; Little, supra; Commonwealth v. Hoffman, 230 Pa.Super. 444, 331 A.2d 805 (1974).

The Commonwealth argues that the stipulation filed of record, by which appellant stipulated to a jury trial, lists the summary offenses together with the misdemeanor charges. Therefore, the Commonwealth asserts, appellant was aware that she would stand trial for the summary offenses, as well. However, we cannot, in light of due process considerations, equate a mere stipulation, whose chief purpose is to apprise the court that the parties have agreed to a jury or to a bench trial, with a legal document whose sole purpose is to provide an accused with notice of the formal criminal charges which have been filed against him/her. The stipulation filed here did not contain any of the formal requisites attendant to a criminal information. A criminal information requires a “plain and concise statement of the essential elements of the offense substantially the same or cognate to the offense alleged in the complaint____” Pa.R.Crim.P. 225(b)(5). Cf. Commonwealth v. Taylor, 324 Pa.Super. 420, 471 A.2d 1228 (1984) (where conviction was based upon an information which alleged no facts but merely proceeded on the basis of the averments contained in the criminal complaint, jury instruction to consider the facts in the complaint was improper). It is clear therefore that the stipulation did not provide appellant with the type of notice required by law.

Finally, it cannot be argued that the absence of the summary offenses from inclusion in the criminal information is justified by their being considered constituent offenses of the crime of simple assault. An offense is generally considered to be a constituent or included offense if all essential elements of the lesser offense are included in the greater offense. Commonwealth v. Williams, 299 Pa.Super. 278, 445 A.2d 753 (1982). The elements of simple assault are the attempt “to cause or intentionally, knowingly or recklessly” cause “bodily injury to another,” or negligently causing bodily injury to another with a deadly weapon, or the attempt to “put another in fear of imminent bodily injury.” 18 Pa.C.S. § 2701(a). On the other hand, the element of intent necessary for harassment is an “intent to harass, annoy or alarm another person: (1) [when] he strikes, shoves, kicks or otherwise subjects him to physical contact____” 18 Pa.C.S. § 2709. It is clear that harassment is not a constituent offense of simple assault because the elements are not identical. The elements of disorderly conduct need not be considered in this case since the trial court rendered sentence only on the charge of harassment.

Thus, the trial court was without jurisdiction to try, convict and sentence appellant on the summary charges. Komatowski, supra; Speller, supra. Because the charges of harassment and disorderly conduct were not included in the criminal information, appellant could not be tried, convicted or sentenced on these charges.

Judgment of sentence vacated; appellant discharged.

      . Although Speller involves the application of Chapter 6000 of the Pennsylvania Rule of Criminal Procedure which apply only to Philadelphia County, this is a distinction without a difference. The court stated that the rule in question, Pa.R.Crim.P. 6002, was based upon the comment to Pa.R.Crim.P. 101 and therefore is no different from the procedure required in other counties. 311 Pa.Super. at 578, 458 A.2d at 202.

      . Although appellant did not file an omnibus pretrial motion challenging the validity of the criminal information, she is not precluded from raising this issue on appeal, for she now contests the subject matter jurisdiction of the trial court to hear the summary offenses and to convict and sentence her. Subject matter jurisdiction is non-waivable. Little, 455 Pa. at 168-169, 314 A.2d at 273; Speller, 311 Pa.Super. at 579, 458 A.2d at 203.


source: Caselaw Access Project

author: CIRILLO, Judge:

license: Public Domain

text:
    595 A.2d 62
    Charles OBLON and Bonnie Oblon, H/W, Appellants, v. The LUDLOW-FOURTH CORP., Westinghouse Electric Corporation, Bressman & Carol, Philadelphia Electric Company B-K Electrical (ASCO), Shaffer-Gordon Winmon, Inc. and Keystone Engineering Corporation. (Two Cases) Charles OBLON and Bonnie Oblon v. The LUDLOW-FOURTH CORP., Westinghouse Electric Corp., Philadelphia Electric Co., Bressman & Carol, Ind. and t/a Richard Roe; Keystone Engineering Corp.; Shaffer-Gordon Associates and B-K/ASCO. Charles OBLON and Bonnie Oblon, H/W v. The LUDLOW-FOURTH CORP., Westinghouse Electric Corp., Philadelphia Electric Co., Bressman & Carol, Ind. and t/a Richard Roe; Keystone Engineering Corp.; B-K/ASCO. Appeal of KEYSTONE ENGINEERING CORP. (Two Cases)
    Superior Court of Pennsylvania.
    Argued March 21, 1991.
    Filed June 19, 1991.
    Rearguments Denied Sept. 3, 1991.

      Stephen Saltz, Philadelphia, for Obion, appellants (at 1112 and 1113) and appellees (at 1248 and 1114).
    Gordon Gelfond, Philadelphia, for Bressman & Carol, appellee (at 1112, 1113, 1114 and 1248).
    James M. Marsh, Philadelphia, for Keystone Engineering, appellant (at 1248 and 1114) and appellee (at 1112 and 1113).
    Robert A. Koons, Jr., Philadelphia, for Westinghouse Electric, appellee (at 1112, 1113, 1114 and 1248).
    Before CIRILLO, OLSZEWSKI and CERCONE, JJ.
   CIRILLO, Judge:

Charles and Bonnie Obion and Keystone Engineering Company (“Keystone”) have filed consolidated appeals from orders entered on March 8, 1990, and April 17, 1990 in the Philadelphia County Court of Common Pleas. We affirm.

On February 20, 1983, a fire occurred at the Ludlow Fourth Building at 400 Market Street in Philadelphia. Thereafter, Charles Obion, an electrician, began working to repair the electrical equipment damaged by the fire. On February 22, 1983, multiple electrical explosions occurred causing burn injuries to Obion’s face, hands, arms and part of his back.

Thereafter, Obion commenced two actions, based upon negligence and strict liability, see 402A Restatement of Torts (2d), against Bressman and Carol (“B & C”), designer of the electrical plans for the Ludlow Fourth Building; Westinghouse Electric Corporation (“Westinghouse”), designer and manufacturer of the equipment that Obion was repairing when injured; Keystone, which assembled and installed the electrical equipment; and Philadelphia Electric Company, (“PECO”), which allegedly selected the type of fuse which protected the electrical equipment that Obion had been repairing when he was injured.

The two actions were consolidated and a jury trial commenced on January 30, 1990. Following a seven week trial, the jury was given ten questions to answer. The jury, however, was unable to reach a unanimous verdict. Subsequently, Obion’s request for a verdict to be entered on the issue of liability was denied. Obion also filed a post-trial motion to mold the verdict which was accompanied by affidavits that Obion’s attorney had obtained ex parte from jurors eight and nine and an affidavit from Charles Obion in which he stated that he would accept the jury award of $1,000,000.00. Obion’s motion to mold the verdict was denied. PECO’s post-trial motion for judgment on the entire record was granted. Keystone’s post-trial motions for judgment notwithstanding the verdict, judgment upon the entire record, and for indemnity against B & C and Westinghouse were denied. As such, the trial court granted a new trial on all issues between Obion and Westinghouse, B & C, and Keystone. Obion and Keystone filed timely appeals. We will initially address the claims asserted in Obion’s appeal.

I. The trial court erred in denying [Obion’s] motion to mold the verdict despite the affidavits of jurors [eight and nine] which unambiguously demonstrated that there was not an irreconcilable inconsistency in the jury verdict and that the jurors all agreed that appellees were negligent.
A. The trial court erred in refusing to consider the affidavits of jurors [eight and nine].
B. There was not an irreconcilable inconsistency in the jury verdict and the verdict should have been molded to reflect the intent of the jurors.
C. The trial court erred in failing to enter judgment against appellees on the issue of negligence.
II. The trial court erred in granting defendant, [PECO’s] motion for judgment based on the record after the jury found [PECO] negligent.

When reading issues I, 1(a) and 1(b), Obion’s argument is essentially that since the juror affidavits were used merely to explain and clarify their responses to the answers contained in the jury verdict questionnaire, the trial court erred in refusing to consider the affidavits and in refusing to mold the verdicts based upon the statements in the affidavits. Specifically, Obion argues that a combination of the information contained in the affidavits and the information set forth in the jury verdict questionnaire demonstrates a consensus among the jurors that Obion was no more than twenty-nine percent negligent.

Here, although the jury verdict questionnaire evidenced a consensus, a poll of the jurors revealed that there was in fact no agreement as to percentages of fault and amount of damages that Obion should be awarded. In Pennsylvania, for a verdict to be valid five-sixth’s of the jury must agree. 42 Pa.C.S. § 5104(b). In the instant case, a polling of the jury revealed that only seven of the nine jurors agreed to the verdict. As such, there was no verdict.

It has long been the rule in Pennsylvania that the only verdict is that which is announced orally in court by the jury, and if at that time any juror disagrees, with or without poll, before the verdict is recorded then there is no verdict.

Barefoot v. Penn. Central Transp. Co., 226 Pa.Super. 558, 323 A.2d 271 (1974); see also Havranek v. Pittsburgh, 344 Pa. 375, 25 A.2d 703 (1942); Friedman v. Ralph Bros., Inc., 314 Pa. 247, 171 A. 900 (1934); Eastley v. Glenn, 313 Pa. 130, 169 A. 433 (1933); Scott v. Scott, 110 Pa. 387, 2 A. 531 (1885). Consequently, since jurors number eight and nine disagreed with the verdict as stated before it was recorded, there was no verdict. Barefoot, supra.

Moreover, the trial court properly refused to consider the affidavits of jurors number eight and nine obtained ex parte three weeks after the jury had been discharged. It is well settled that unless there is evidence which would indicate the existence of extraneous influences which may have affected the jury’s deliberations, affidavits of jurors, if introduced to impeach a jury verdict, may not be considered by a court in deciding a motion for a new trial. Pittsburgh National Bank v. Mutual Life Ins. Co. of New York, 493 Pa. 96, 425 A.2d 383 (1981); Fink v. Commonwealth, 85 Pa.Commw. 290, 482 A.2d 281 (1984). The rationale underlying the above rule is as follows:

The only act performed by the jury to which any legal significance is attached is the rendering of the verdict. “[T]he verdict as uttered is the sole embodiment of the jury’s act ... The policy which requires this is the same which forbids a consideration of the negotiations of parties to a contract leading up to the final terms ..., namely, the loss of all certainty in the verdict, the impracticability of seeking for definitiveness in the preliminary views, the risk of misrepresentation after disclosure of the verdict, and the impossibility of expecting any end to trials____”

Commonwealth v. Zlatovich, 440 Pa. 388, 396-397, 269 A.2d 469, 473 (1970) (emphasis original, citations omitted). Obion cites a number of cases from other jurisdictions which allowed juror affidavits to explain a jury verdict. Here, however, no verdict was reached. Indeed, to manufacture a jury verdict, the trial court would have had to consider the jurors’ affidavits, a request which it properly denied. Our supreme court in Commonwealth v. Kravitz, 400 Pa. 198, 161 A.2d 861 (1960), cogently stated:

The practice of interviewing jurors after a verdict and obtaining from them ex parte, unsworn statements in answer to undisclosed questions and representations by the interviewers is highly unethical and improper and was long ago condemned by this court in Cluggage’s Lessee v. Swan, 1811, 4 Bin. 150, 158, reiterated and reaffirmed in Friedman v. Ralph Bros., Inc., 314 Pa. 247, 249, 171 A. 900, 901 [(1934)], and again quoted from at length in Redmond v. Pittsburgh Railways Co., 329 Pa. 302, 303-304, 198 A. 71, 72 [ (1938) ]. It is forbidden by public policy: Commonwealth v. Greevy, 271 Pa. 95, 99, 114 A. 511, 512 [(1921)]. Certainly such post-trial statements by jurors are not to be given weight on even an application for a new trial, much less a petition for a writ of habeas corpus.

Id., 400 Pa. at 223, 161 A.2d at 873 (quoting Commonwealth ex rel. Darcy v. Claudy, 367 Pa. 130, 133-134, 79 A.2d 785, 786 (1951)) (emphasis original). Here, although the statements given by jurors eight and nine were in the form of a sworn affidavit, we do not feel that this, without more, requires the trial court to give any consideration to the statements. Indeed, Kravitz plainly states that obtaining statements from jurors ex parte is “highly unethical and improper.” Id. (quoting Claudy, 367 Pa. at 133, 79 A.2d at 785 (emphasis original)). Simply because the instant statements were submitted in the form of a sworn affidavit does not convert otherwise improper behavior into clever post-trial stewardship.

As stated earlier “the verdict, as uttered, is the sole embodiment of the jury’s act.” Zlatovich, 440 Pa. at 396, 269 A.2d at 473. Likewise, where the jury does not reach a verdict, that is also the sole embodiment of their act. It is the process which resulted in their failure to agree, or in their agreement, that is inviolable and must be protected. In the absence of extraneous influences, the jury’s verdict, or their failure to reach one, cannot, and should not be impeached by affidavits obtained ex parte three weeks after the jury has been discharged.

It follows therefore that the trial court did not err in refusing to mold the verdict. In order for the trial court to mold a verdict, the intention of the jury must be clear. Krock v. Chroust, 330 Pa.Super. 108, 478 A.2d 1376 (1984). Where five sixth’s of the jury cannot agree on the parties’ proportion of fault, or the plaintiff’s amount of damages, their intention is not clear. In short, where the jury has not reached a verdict, the court has no power to mold one. See Borne v. Shelton, 214 Pa.Super. 107, 251 A.2d 667 (1969).

Next, Obion argues that the trial court erred in failing to enter judgment against all defendants on the issue of negligence and in granting a new trial on all issues. Obion contends that a new trial should have been limited to the issue of his contributory negligence and the amount of damages. We disagree. Initially, we note that the grant of a new trial will not be disturbed on appeal unless there is evidence of a clear abuse of discretion or error of law. Spang & Co. v. U.S. Steel Corp., 519 Pa. 14, 545 A.2d 861 (1988).

Although the grant of a new trial generally means a new trial as to all parties and all issues raised by the pleadings, Rivera v. Philadelphia Theological Seminary, 510 Pa. 1, 507 A.2d 1 (1986), our courts have granted limited new trials. See Cason v. Smith, 188 Pa.Super. 376, 146 A.2d 634 (1959) (new trial limited to the issue of damages); see also Rivera, supra (new trial limited to determining one defendant’s proportionate responsibility to co-defendant). Obion, however, has not cited any authority for the grant of a new trial limited to the issues of the defendants’ negligence and the plaintiff’s contributory negligence where the jury could not reach a unanimous verdict after a trial where the issues of liability and damages were tried together. Moreover, since the trial was not bifurcated, once Obion was determined to be contributorily negligent, the amount of his contributory negligence was dependent upon and intertwined with the percentages of the defendants’ negligence. See 42 Pa.C.S. § 7102(a). Additionally, it is possible that the percentages of negligence assigned to the defendants and Obion were compromises which embodied concepts of liability and percentage of fault. Specifically, the jury may have settled their disagreements by trading off liability against the amount of damages. In any event, we cannot find that the trial court abused its discretion in refusing to grant a new trial which would assume that all the defendants were negligent and limit the issues on retrial to Obion’s contributory negligence and the amount of damages. Spang, supra.

Obion next argues that since the jury found that PECO was negligent, the trial court erred in granting its motion for judgment based upon the entire record. Conversely, PECO, on the basis of the evidence elicited during its cross-examination of Morton Lerner, Obion’s electrical engineering expert, argues that it is entitled to judgment based upon the entire record. PECO does not argue that Mr. Lerner was unqualified to offer opinion testimony, but that Mr. Lerner’s expert testimony was purely speculative and could not establish that PECO’s selection of a fuse rated at 175 amps contributed to Obion’s injuries. PECO also maintains that since Obion has not established a causal connection between PECO’s selection of the fuse and Ob-ion’s injuries it is entitled to judgment on the record. We agree.

In reviewing an appeal from the entry of a judgment based upon the entire record, we must consider the evidence and all reasonable inferences therefrom in the light most favorable to the non-moving party. Bahoric v. St. Lawrence Creation No. 13 of Steelton, 426 Pa. 90, 230 A.2d 725 (1967). Here, there was evidence that PECO decided that the size of the primary side fuses used to protect its lines at the Ludlow-Fourth building would be 175 amperage fuses. Initially, on direct examination Mr. Lerner testified that a fuse rated at 175 amp was oversized for the equipment and that once a short circuit occurred the oversized fuse allowed electricity to build up more intensely than would a smaller sized fuse and that this build up resulted in a more severe explosion which eventually caused, or at least contributed to, Obion’s injuries. Mr. Lerner claimed that a smaller sized fuse would have shut the flow of power more quickly, thereby resulting in a smaller explosion and presumably, less severe injuries. On cross-examination, Mr. Lerner stated that, under the circumstances, the 175 amp fuse conformed to the requirements of the National Electric Code. Mr. Lerner also stated that if a secondary circuit breaker had been installed, the 175 amp fuse would have been sufficient.

Mr. Lerner conceded that to determine at what point the fuse “blew” he would need to know the fault current which resulted from the short circuit. Mr. Lerner, however, could only estimate that the fault current was between ten thousand and one-hundred and fifty thousand amps. Mr. Lerner also stated that depending on the fault current, a 100 amp fuse would “blow” in relatively the same time as a 175 amp fuse. It was also conceded by Mr. Lerner that a fuse of least. 100 amp was needed to handle the output of electricity-

Consequently, Mr. Lerner’s conclusion that a smaller sized fuse should have been installed was premised upon his knowing the level of the fault current created at the time of the accident. Because Mr. Lerner did not know, nor could he opine, what the fault current was at the time of the accident, there is no factual foundation to support his opinion that a smaller fuse of 100 amp would have blown more quickly than the 175 amp fuse. See Clark v. Penn sylvania Power & Light, 336 Pa. 75, 6 A.2d 892 (1939). Thus, Mr. Lerner’s claim that the 175 amp fuse contributed to Obion’s injuries was purely speculation. In effect, Mr. Lerner’s testimony built a presumption upon a presumption, which is prohibited. Auerbach v. Philadelphia Transportation Company, 421 Pa. 594, 602, 221 A.2d 163, 170 (1966).

Because Mr. Lerner could not opine as to the fault current at the time of the accident, he could not, with any degree of legal certainty, comment on the propriety of the selection of a 175 amp fuse. As such, Obion did not prove that the act of selecting a 175 amp fuse was causally connected to his injuries. Without any competent proof that PECO’s conduct was casually connected to Obion’s injuries, Obion could not prevail on a claim of negligence. See Evans v. Goldfine Truck Rental Service, 241 Pa.Super. 329, 334, 361 A.2d 643 (1976) (to establish a prima facie case of negligence, plaintiff must offer evidence that defendant owed duty to plaintiff and breach of duty was proximate cause of plaintiff’s injury); see also Morena v. South Hills Health System, 501 Pa. 634, 462 A.2d 680 (1988); Hamil v. Bashline, 481 Pa. 256, 265, 392 A.2d 1280, 1284 (1978) (“it is incumbent on a plaintiff to establish a causal connection between defendant’s conduct and the plaintiff’s injury”). We therefore find that, viewing the entire record in the light most favorable to Obion, the trial court properly determined that PECO was entitled to judgment on the record.

We will now address the merits of Keystone’s appeal. Keystone first argues that the trial court erred in denying its motions for judgment n.o.v. and judgment based upon the entire record. Keystone contends that since the jury found that the equipment was not defective when it left Westinghouse for installation at 400 Market Street, it cannot be liable. A motion requesting judgment n.o.v. and a motion requesting judgment based upon the entire record require that we view the facts in the light most favorable to the non-moving party and draw all reasonable inferences therefrom. See Wenrick v. Schloemann-Siemag, etc., 523 Pa. 1, 564 A.2d 1244 (1989); Bahoric, supra.

However, since Keystone has not provided us with a sufficient original record, we cannot review its claim that it is entitled to judgment based upon the entire record. Namely, Keystone has not provided us with relevant portions of the trial transcript. We hasten to remind Keystone that, as the appellant in this appeal, it is required to supply this court with a complete record for purposes of appellate review. Pa.R.A.P. 1911; Commonwealth v. Buehl, 403 Pa.Super. 143, 588 A.2d 522 (1991). See also 1 Pennsylvania Appellate Practice § 1911:2 (1986). More importantly, an appellate court may only consider facts which have been duly certified in the record on appeal. Commonwealth v. Young, 456 Pa. 102, 115, 317 A.2d 258, 264 (1974); Kilian v. Allegheny County Distributors, Inc., 409 Pa. 344, 349, 185 A.2d 517, 519 (1962); Buehl, supra.

We refer Keystone to Pennsylvania Rule of Appellate Procedure 1923 which provides that

if a transcript is unavailable, the appellant may prepare a statement of the proceedings from the best available means, including his or her recollection. Pa.R.A.P. 1923. The statement may then be served upon the appellee who, within ten days, may raise objections or propose changes to the statement. Id. Thereafter, the statement must be submitted to the relevant trial court for approval and the statement, as approved, will then be included in the record on appeal. Id.

Buehl, slip op. at 5-6 (footnote omitted). Without an adequate record, we cannot conclude that the trial court erred in denying Keystone’s motions for judgment n.o.v. and judgment based upon the entire record. Therefore, we dismiss these claims.

Lastly, Keystone contends that the trial court erred in denying its motion for indemnity against B & C and Westinghouse. We disagree. One is entitled to indemnity if that person, although not at fault, becomes legally obligated to pay damages to a plaintiff who has suffered injury caused by a third party. Burbage v. Boiler Engineering and Supply Co., 433 Pa. 319, 249 A.2d 563 (1969). Since there is no verdict in this case, Keystone is not legally responsible to pay anyone. Id. As such, Keystone’s motion for indemnity was premature and was properly denied.

Orders affirmed.

      . The Jury Verdict Questionnaire, in relevant part, read as follows:
      1) Do you find by the preponderance of the evidence that any of the defendants was negligent?
      Westinghouse ... Yes
      [B & C] Yes
      Keystone Yes
      [PECO] Yes
      ... If you answer ‘YES" as to any defendant, proceed to next question. 2) Was the negligence of those defendants you have found to be negligent a substantial factor in bringing about Charles Obion's harm?
      Westinghouse ... Yes
      [B & C] Yes
      Keystone ... Yes
      [PECO] Yes
      ... [I]f you answer "YES” as to any defendant, proceed to next question.
      3) Do you find by a preponderance of the evidence, that the plaintiff Charles Obion was contributorily negligent?
      YES
      4) If you answered Question 3 ‘YES,” was Charles Obion’s negligence a substantial factor in bringing about his harm?
      YES
      5) Taking the combined negligence that was a substantial factor in bringing about Charles Obion’s harm as 100 percent, what percentage of that causal negligence was attributable to each of the defendants you have found causally negligent and what percentage was attributable to Charles Obion?
      ... Westinghouse____ 17%
      ... [B & C] ... 32%
      ... PECO ... 4%
      ... Keystone ... 18%
      ... Charles Obion 29%
      * * *
      6) Do you find that Charles Obion knew of the specific danger posed by working in a cabinet with energized bus bars?
      YES
      7) If you answer Question 6 "YES,” was that a substantial factor in causing his injuries?
      NO
      8) Do you find that there was a defect in the equipment when it left Westinghouse for installation at 400 Market Street?
      NO

        9) Do you find that the defective condition caused the physical harm suffered by Mr. Obion?
      [unanswered]
      10) State the amount of damages, if any, sustained by each plaintiff as a result of the accident without regard to and without reduction by the percentage of causal negligence, if any, that you have attributed to the plaintiff.
      Plaintiff Charles Obion $1,000,000.00
      Plaintiff Bonnie Obion $ 0

      . The jurors were polled after the verdict was stated. Jurors one through seven agreed with the verdict as stated. However, jurors number eight and nine did not agree with the jury verdict. The trial judge discharged jurors one through seven and questioned jurors eight and nine. The transcript of the polling of the jurors was not included in the original record on appeal.

      . The relief Obion requests is inherently inconsistent. Although it is clear that the jury found that all defendants were negligent, eight of the nine jurors also found that Obion was contributorily negligent. Therefore, to be consistent, Obion should request that the court enter a verdict against all parties as to liability and limit the new trial to a determination of each party's responsibility for damages. This request would assume that the jury on retrial could not find Obion more than fifty percent contributorily negligent. See 42 Pa.C.S. § 7102.

      . Although significant portions of the transcript from the seven week trial are not included in the record on appeal, since the case against PECO was premised entirely upon the expert testimony of Morton Lerner, the transcript of which is included in the record on appeal, we will address this claim.

      . Fuses and circuit breakers are circuit protection devices which "trip open” when a circuit becomes overloaded.

      . Obion does not maintain that the installation of the secondary circuit breaker , was PECO’s responsibility.

      . Initially, since, we have determined that there was no verdict, it would be difficult for Keystone to prevail on a claim praying for judgment notwithstanding a verdict that was never entered.

      . Pennsylvania Rule of Appellate Procedure 1911 provides in pertinent part:
      (a) General Rule. The appellant shall order any transcript required under this chapter in the manner and make any necessary payment or deposit therefor in the amount and within the time prescribed by Rules 5000.1 et seq. of the Pennsylvania Rules of Judicial Administration (court reporters).
      Pa.R.A.P. 1911(a).

      . Rule 1923. Statement in Absence of Transcript
      If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection. The statement shall be served on the appellee, who may serve objections or propose amendments thereto within ten days after service. Thereupon the statement and any objections or proposed amendments shall be submitted to the lower court for approval and as settled and approved shall be included by the clerk of the lower court in the record on appeal.
      Pa.R.A.P. 1923. Rule 1923’s purpose is to provide reviewing courts with an "equivalent picture" of the proceedings when there is not a transcription. Buehl, 588 A.2d at 524 n. 7; Smith v. Mason, 328 Pa.Super. 314, 316 n. 12, 476 A.2d 1347, 1348 n. 1 (1984).


author: HOFFMAN, Judge:

text:
    595 A.2d 70
    Larry CASHDOLLAR, Appellant, v. The MERCY HOSPITAL OF PITTSBURGH. Larry CASHDOLLAR v. The MERCY HOSPITAL OF PITTSBURGH, Appellant.
    Superior Court of Pennsylvania.
    Argued March 21, 1991.
    Filed June 24, 1991.
    Reargument Denied Sept. 3, 1991.

      John O’Donnell and David F. Weiner, Pittsburgh, for appellant (at 1224) and appellee (at 1281).
    Eric P. Reif, Pittsburgh, for appellant (at 1281) and appellee (at 1224).
    Before ROWLEY, President Judge, and WIEAND and HOFFMAN, JJ.
   HOFFMAN, Judge:

These cross-appeals are from the judgment entered following a jury verdict in favor of Larry Cashdollar in a breach of contract of employment action that he brought against The Mercy Hospital of Pittsburgh. In appeal number 1224 PGH 90, Cashdollar contends that the trial court erred in (1) granting Mercy Hospital’s Motion for a Remittitur; and (2) granting compulsory nonsuits on his misrepresentation and defamation claims. In appeal number 1281 PGH 90, Mercy Hospital contends that the trial court erred in: (1) refusing to grant judgment notwithstanding the verdict; (2) refusing several of Mercy’s requested points for charge; and (3) granting an insufficient remittitur. For the reasons that follow, we find no merit in either party’s claims; thus, we affirm the judgment below.

In September of 1986, Larry Cashdollar accepted an offer of employment as Vice President of Human Resources at The Mercy Hospital of Pittsburgh (“Mercy”). As a result of this offer, Cashdollar resigned from his position as Vice President of Human Resources at Fairfax Hospital Association in Virginia, sold his home, and moved with his family to Pittsburgh. Cashdollar began working at Mercy on October 27, 1986. On November 19,1986, after sixteen working days, Cashdollar was abruptly fired for allegedly creating an unstable working environment in the Human Resources Department.

On November 6, 1987, Cashdollar filed this action to recover damages for breach of an implied contract of employment, promissory estoppel, defamation, fraudulent misrepresentation and negligent misrepresentation. The case was tried before a jury from November 29 to December 5, 1989. At the close of his case, the trial court nonsuited Cashdollar on the counts of defamation, fraudulent misrepresentation and negligent misrepresentation. At the close of evidence, the jury awarded Cashdollar the sum of $407,-000. 00. Motions for post-trial relief were timely filed by both parties. On July 31, 1990, the trial court denied Mercy’s request for judgment notwithstanding the verdict and a new trial. The trial court also denied Cashdollar’s challenges to the nonsuits on the counts of defamation and misrepresentation. The court did, however, remit the award to $204,000.00. These timely cross-appeals followed.

I. MERCY’S CLAIMS FOR J.N.O.V. AND NEW TRIAL

A. Judgment n.o.v.

Mercy first contends that the trial court erred in refusing to grant its motion for judgment notwithstanding the verdict. Specifically, Mercy argues that Cashdollar presented insufficient evidence to rebut the presumption of at-will employment.

It is well-settled that a judgment notwithstanding the verdict may be entered only in a clear case, where after viewing the evidence in the light most favorable to the verdict winner, no two reasonable minds could fail to agree that the verdict was improper. See Scullion v. EMECO Indus., 398 Pa.Super. 294, 297, 580 A.2d 1356, 1358 (1990) (citation omitted); Robertson v. Atlantic Richfield Petro., 371 Pa.Super. 49, 58, 537 A.2d 814, 819 (1987), allocatur denied, 520 Pa. 590, 551 A.2d 216 (1988) (citation omitted).

In Pennsylvania, an employment relationship is generally considered to be “at-will,” and, absent a contract, may be terminated by either party at any time, for any reason or for no reason. See, e.g., Clay v. Advanced Computer Applications, 370 Pa.Super. 497, 510, 536 A.2d 1375, 1382 (1988); Marsh v. Boyle, 366 Pa.Super. 1, 4, 530 A.2d 491, 493 (1987); Veno v. Meredith, 357 Pa.Super. 85, 95, 515 A.2d 571, 576 (1986); Darlington v. General Elec., 350 Pa.Super. 183, 188, 504 A.2d 306, 309 (1986). However, an employee can defeat the “at-will” presumption by establishing, inter alia, that the employee gave his employer additional consideration other than the services for which he was hired. See Scullion v. EMECO Indus., supra, 398 Pa.Superior Ct. at 297, 580 A.2d at 1358; Marsh v. Boyle, supra 366 Pa.Super. at 5, 530 A.2d at 493; Veno v. Meredith, supra 357 Pa.Super. at 96-97, 515 A.2d at 580; Darlington v. General Elec., supra 350 Pa.Super. at 199, 504 A.2d at 314; Lucacher v. Kerson, 158 Pa.Super. 437, 441, 45 A.2d 245, 248 (1946), aff'd, 355 Pa. 79, 48 A.2d 857 (1946). As this Court stated in Darlington v. General Elec., supra, “a court will find ‘additional consideration’ when an employee affords his employer a substantial benefit other than the services which the employee is hired to perform, or when the employee undergoes a substantial hardship other than the services which he is hired to perform.” Id. 350 Pa.Super. at 201, 504 A.2d at 315. It is a question of fact whether, in a given case, the additional consideration furnished by the employee is sufficient to rebut the at-will presumption. Scullion v. EMECO Indus., supra, 398 Pa.Superior Ct. at 297, 580 A.2d at 1358.

The facts, viewed in the light most favorable to Cashdollar as the verdict winner, are as follows. Cashdollar, at the age of forty-seven, accepted a position as Vice President of Human Resources at Mercy, where he was to earn approximately $91,000.00 per year. See N.T. November 29, 1989 at 65, 67. Before he was hired by Mercy, Cashdollar was Vice President of Human Resources for the Fairfax Hospital Association in Fairfax, Virginia where he was earning $82,000.00 per year. Id. at 66. Cashdollar had been employed by Fairfax for four and one-half years. Id. at 39. In the summer of 1986, Cashdollar interviewed for the position at Mercy after he was approached by an executive search firm that was retained by Mercy. Id. at 40. Subsequently, Mercy invited Cashdollar to Pittsburgh where he was interviewed by several Mercy executives including Kenneth Buser, the Executive Vice President. Id. at 42-43. Cashdollar testified that, during the interview, Buser spoke to him about a future role that he would have with Mercy and with the Eastern Mercy Health Alliance if he were hired. Id. at 44. Cashdollar testified further that Mercy showed particular interest in him because of his background in multi-hospital administration which would be relevant to his prospective work with the Eastern Mercy Health Alliance. Id. at 46-47. Initially, Cashdollar was not selected for the position. However, after Mercy’s first choice for the position had rejected its offer, Cashdollar was asked if he was interested in being further considered for the job. Cashdollar replied that he was not interested because his wife was pregnant at the time, and he did not want to relocate. Cashdollar then received a phone call from Kenneth Buser in which Buser implored him to reconsider the Mercy job and asked him to come to Pittsburgh at the hospital’s expense to become acquainted with the city. Id. at 60-63. After much persistence on Buser’s part, Cashdollar accepted Mercy’s offer. N.T. November 30, 1989 at 76. Cashdollar testified that he accepted the offer because it was an excellent career opportunity and because he would be earning a greater salary. N.T. November 29, 1989 at 66. Cashdollar then resigned from his position at Fairfax Hospital, sold his house in Virginia and moved his pregnant wife and two-year-old child to Pittsburgh. N.T. November 30, 1989 at 76-81.

This Court has found insufficient additional consideration where an employee has suffered detriments, in the course of his or her employment, that are “commensurate with those incurred by all manner of salaried professionals.” See Veno v. Meredith, supra. However, in the instant case, there was sufficient evidence that, in taking the job with Mercy, Cashdollar suffered greater hardship than those hardships “incurred by all manner of salaried professionals.” Cashdollar gave up his secure employment with Fairfax Hospital Association where he had worked for over four years at a salary of $82,000.00 per year. In addition, Cashdollar uprooted his pregnant wife and two-year-old child and sold his home based on his understanding that he was going to a job where his special talents would be employed as Vice President of Human Resources at Mercy and also as a participant in the Eastern Mercy Health Alliance. In light of these special circumstances that attended Cashdollar’s job change, we conclude that these hardships constitute sufficient additional consideration to rebut the at-will presumption. See Darlington v. General Elec., supra, 350 Pa.Superior Ct. at 201, 504 A.2d at 315 (additional consideration regarded as sufficient when new employee must undergo substantial hardship such as moving family to take new position); see also Scullion v. EMECO Indus., supra, 398 Pa.Superior Ct. at 297, 580 A.2d at 1358; Lucacher v. Kerson, supra 158 Pa.Super. at 441, 45 A.2d at 248. Thus, we cannot say that the trial court erred in holding that the jury could properly find, based on this evidence, that an implied contract for employment existed between Cashdollar and Mercy. Therefore, the trial court did not err in refusing to grant Mercy’s motion for judgment notwithstanding the verdict.

B. New Trial

Mercy next contends that the trial court erred in refusing to grant a new trial where the court below refused several of Mercy’s requested points for charge. Specifically, Mercy contends that the lower court erred in refusing to instruct the jury on the degree of specificity necessary to establish an implied contract of employment. Our standard of review of the denial of a new trial is well-settled. We will reverse the trial court only where we find a clear abuse of discretion or an error of law which controlled the outcome of the case. See, e.g., Robertson v. Atlantic Richfield Petro., supra 371 Pa.Super. at 61, 537 A.2d at 820 (citing Wood v. Smith, 343 Pa.Super. 547, 550, 495 A.2d 601, 603 (1985)). In evaluating a claim of erroneous jury instructions, we must analyze the court’s instruction in its entirety. See Olson v. Dietz, 347 Pa.Super. 1, 6, 500 A.2d 125, 127 (1985). If a requested point for charge is already sufficiently covered in the trial court’s instructions to the jury, it is proper to deny the specific request. Id., 347 Pa.Superior Ct. at 6, 500 A.2d at 127-28. After review of the charge, we conclude that the instructions given to the jury were proper.

Mercy contends that the lower court erred in refusing its requested jury instructions 8, 12, 13, and 14 which state the requirement in Pennsylvania that, in order to establish an implied contract of employment, plaintiff must prove the existence of a very clear statement of an intention by both parties to alter the at-will relationship. In its charge to the jury, the trial court explained that, under Pennsylvania law, employment relationships are presumptively at-will and the plaintiff bears the burden of proving an agreement by the parties to enter into a contractual relationship. Specifically, the court charged the jury, in relevant part, as follows:

Now—and this is, of course, important—in order for you to find in favor of the Plaintiff on the formation of a contract for some period—some reasonable period of time, it is necessary for you to find that Mr. Buser had this actually in his mind, not merely that Mr. Cashdollar thought he had it in his mind, not what Mr. Cashdollar thought that Mr. Buser had in his mind, but this actually was in Mr. Buser’s mind you see. You would have to find that.

N.T. December 5, 1989 at 157. We are convinced that the trial court adequately summarized the law regarding implied contract of employment cases in its charge to the jury. See Robertson v. Atlantic Richfield Petro., supra 371 Pa.Super. at 64-65, 537 A.2d at 822; Veno v. Meredith, supra 357 Pa.Super. at 99, 515 A.2d at 578; Darlington v. General Elec., supra 350 Pa.Super. at 193, 504 A.2d at 311. Because the jury charge adequately summarized the pertinent law on this point, the trial court did not err in refusing Mercy’s proposed instructions. See Olson v. Dietz, supra.

II. CASHDOLLAR’S CLAIMS REGARDING NONSUITS

In his appeal, Cashdollar contends that the trial court erred in granting compulsory nonsuits on his defamation and misrepresentation claims. “In a case involving only one defendant, at the close of plaintiffs case on liability and before any evidence on behalf of the defendant has been introduced, the court, on the oral motion of a party, may enter a nonsuit if the plaintiff has failed to establish a right to relief.” Pa.R.Civ.P. 230.1. A compulsory nonsuit can be granted only in a case where it is clear that a cause of action has not been established, and the plaintiff must be given the benefit of all favorable evidence and all reasonable inferences of fact arising from that evidence, resolving any conflict in the evidence in favor of the plaintiff. Storm v. Golden, 371 Pa.Super. 368, 373, 538 A.2d 61, 63 (1988) (citations omitted). With these standards in mind, we will consider the claims that were nonsuited.

A. Defamation

Cashdollar argues that the letter of termination written by Kenneth Buser was defamatory as a matter of law. Specifically, Cashdollar claims the following statement defamed him:

The purpose of this action [Cashdollar’s termination] is as a result of a lack of trust in our relationship and your performance to date which has created an unstable working environment in Human Resources.

See Termination Letter, November 19, 1986, R.R. at 21a. The trial court found that this letter was not defamatory on its face. See N.T. December 1, 1989 at 250, 332.

In a defamation claim, the plaintiff has the burden of proving, inter alia, that a communication is defamatory. See 42 Pa.C.S.A. § 8343(a). Whether a communication can be construed to have a defamatory meaning is a question of law for the court to determine. See Baker v. Lafayette College, 516 Pa. 291, 296, 532 A.2d 399, 402 (1987) (evaluation report not defamatory); Sobel v. Wingard, 366 Pa.Super. 482, 486-87, 531 A.2d 520, 522 (1987) (termination letter not defamatory); Veno v. Meredith, supra 357 Pa.Super. at 92, 515 A.2d at 575 (newspaper editorials not defamatory). In making this determination, the court must view the statements in context and determine whether the statement was maliciously written or published and tended “to blacken a person’s reputation or to expose him to public hatred, contempt, or ridicule, or to injure him in his business or profession.” Baker v. Lafayette College, supra.

Applying these established legal principles to the present case, it is clear that the trial court did not err in nonsuiting the defamation claim. Cashdollar argues that the termination letter is actionable because it indicated that he was “untrustworthy, an inadequate performer, and [it] cast[ ] aspersions on his stability.” See Brief for Appellant Cashdollar at 22. We do not agree with this characterization of the letter. The letter does not attribute a lack of ability which would tend to harm Cashdollar in his profession. See Sobel v. Wingard, supra. It comments only on Mercy’s evaluation of Cashdollar’s performance in the context of his employment at that institution and states the reasons for his dismissal. Therefore, we find that the letter was not defamatory on its face. Accordingly, the trial court did not err by granting a compulsory nonsuit on the defamation count.

B. Misrepresentation

Cashdollar also argues that the trial court erred in granting a compulsory nonsuit on his fraudulent misrepresentation claim. Specifically, Cashdollar argues that Mercy fraudulently induced him into accepting employment to his detriment.

Our courts have consistently held that a false representation is fraudulent only when it is established by clear and convincing evidence that the representation was made knowingly with the intent to deceive or in reckless disregard for the truth or falsity of the matter. Adams v. Euliano, 299 Pa.Super. 348, 350, 445 A.2d 788, 790 (1982) (citations omitted). Our review of the record in the instant case reveals no evidence of the requisite scienter necessary to prove fraudulent misrepresentation on the part of Mercy. Therefore, we cannot say that the trial court erred in granting a nonsuit on the count of fraudulent misrepresentation.

III. REMITTITUR

Both Cashdollar and Mercy challenge the trial court’s order of remittitur. Cashdollar claims that the trial court erred in granting Mercy’s Motion for a Remittitur in the amount of $203,000.00. Mercy, on the other hand, claims that the trial court erred by not granting their request for remittitur in an amount commensurate with an employment contract for, at most, six to twelve months.

It is established that remittitur is proper only to reduce the amount of a verdict considered excessive by the court. See, e.g., Atene v. Lawrence, 456 Pa. 541, 318 A.2d 695 (1974); Lininger v. Kromer, 238 Pa.Super. 259, 358 A.2d 89 (1976); see also Senor v. Rostraver Twp. Airport Auth., 3 Pa.Commw. 89, 91, 280 A.2d 829, 830 (1971). A remittitur should fix the highest amount any jury could properly award, giving due weight to all the evidence offered. See Senor v. Rostraver Twp. Auth., supra. Here, the trial court explained its reasons for remitting the award as follows:

Assuming that we have sufficient evidence for a contract of some length, there remains the troublesome question of how long would it be intended to last. The defense contends that the absence of any specific reference to time in itself makes it legally impermissible to infer any contract and of course it will be conceded that an employment contract without a time frame would be a mirage. However, we are not persuaded that it is impossible to determine a time frame from circumstantial evidence. We agree with the defense that there is no evidence, even circumstantial, which can be construed to mean that Buser promised employment for fourteen (14) years. That is not to say that Cashdollar did not expect to be with Mercy for fourteen years and he probably did and well could have been, but an expectation of the prospective employee, however reasonable from his point of view, does not supply a meeting of the minds. As we see it, the conduct of Buser can, however, be interpreted to intend employment at least long enough to accomplish the objectives. How long would this be? Perhaps five (5) years would be more than enough, but mindful of the principle that we should not detract from a jury verdict any more than absolutely necessary, we shall say approximately seven (7) years and order a remittitur of Two Hundred and Three Thousand Dollars ($203,000), thereby reducing the verdict to Two Hundred and Four Thousand Dollars ($204,000).

Trial Court Opinion, filed July 31, 1990, at 6.

The trial court premised its order of remittitur upon the nature of an implied contract of employment action. As we have noted above, when sufficient additional consideration is present, an employee should not be subject to discharge without just cause for a reasonable time. See Marsh v. Boyle, supra 366 Pa.Super. at 6, 530 A.2d at 494; Veno v. Meredith, supra 357 Pa.Super. at 102, 515 A.2d at 580; Darlington v. General Elec., supra 350 Pa.Super. at 199-200, 504 A.2d at 314. When the exact period for which the parties intended to contract cannot be ascertained, the agreement is not vitiated; rather, an agreement for a “reasonable time” will be inferred. Marsh v. Boyle, supra; Veno v. Meredith, supra. “The length of time during which it would be unreasonable to terminate, without just cause, an employee who has given additional consideration should be commensurate with the hardship the employee has endured or the benefit he has bestowed.” Veno v. Meredith, supra 357 Pa.Super. at 102, 515 A.2d at 580.

Here, the trial court found that the jury erred in concluding that the parties intended the employment contract to last for fourteen years and, accordingly, halved the length of the contract and reduced the jury verdict from $407,000.00 to $204,000.00. In light of the above-cited principles of law, the. trial court’s action in reducing the verdict was proper under the law relating to implied contracts. See, e.g., Paul v. Lankenau Hosp., 375 Pa.Super. 1, 22, 543 A.2d 1148, 1159 (1988), rev’d on other grounds, 524 Pa. 90, 569 A.2d 346 (1990) (upholding trial court's order of remittitur of excessive jury award); see also Veno v. Meredith, supra 357 Pa.Super. at 102 n. 4, 515 A.2d at 580 n. 4 (“reasonable length of time” of implied contract of employment had passed where appellant employed for eight years before he was dismissed). Because the remittitur necessarily resulted from the trial court’s application of contract law, it was not error for the trial court to fix the award as it did.

For the above-stated reasons, we affirm the judgment below.

Judgment affirmed.

      . Specifically, the jury awarded Cashdollar $88,000.00 which represented damages for the three year period from the date Cashdollar was fired to the date of the verdict. In addition, the jury awarded Cashdollar $29,000.00 per year for eleven years from the date of the verdict. The $29,000.00 figure represented the approximate difference between Cashdollar’s salary at Mercy and the salary he was receiving from his new job at the time of trial.

      . In addition, we should note that the unusually persistent efforts of Mr. Buser and his suggestion that Mr. Cashdollar was particularly well-suited for the position, tend to suggest a "substantial benefit” to Mercy. See Darlington v. General Elec., supra 350 Pa.Super. at 201, 504 A.2d at 315.

      . The trial court also granted a compulsory nonsuit on the count of negligent misrepresentation. However, on appeal, Cashdollar makes no argument as to the propriety of the court’s ruling on this count.

      . Apparently, the jury fixed the length of the implied contract at Cashdollar’s retirement (65 years old), as appellant was 51 years old at the time of trial.


author: MONTGOMERY, Judge: CAVANAUGH, Judge,

text:
    595 A.2d 77
    GRIMME COMBUSTION, INC., Appellant, v. MERGENTIME CORPORATION and Insurance Company of North America, Appellees.
    Superior Court of Pennsylvania.
    Argued Feb. 28, 1991.
    Filed July 2, 1991.
    Reargument Denied Sept. 5, 1991.

      Robert T. Carlton, Jr., King of Prussia, for appellant.
    Carl H. Hanzelik, Philadelphia, for appellees.
    Before CAVANAUGH, MCEWEN and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The plaintiff-appellant Grimme Combustion, Inc. instituted the instant action to seek damages allegedly arising out of its work as a subcontractor on a highway construction project in Philadelphia. Defendant-appellee Mergentime Corporation was the general contractor on that Pennsylvania Department of Transportation (hereinafter “PennDOT”) project, and defendant-appellee Insurance Company of North America (hereinafter “INA”) acted as a surety in providing a payment bond for Mergentime with regard to the project. After the close of the pleadings, the defendants filed a motion to dismiss for lack of subject matter jurisdiction and for failure to join an indispensable party. The plaintiff filed a response in opposition to the motion, and the defendants filed a reply memorandum. After consideration, the trial court entered an order granting the defense motion to dismiss. It did so based upon its conclusion that PennDOT was an indispensable party in the litigation. The plaintiff thereafter instituted the instant appeal.

In the absence of an indispensable party, a court lacks jurisdiction over matters before it. Columbia Gas Transmission Corp. v. Diamond Fuel Co., 464 Pa. 377, 379, 346 A.2d 788, 789 (1975). A trial court order dismissing an action because a plaintiff fails to join an indispensable party is a final and appealable order, as it puts the parties out of court without reaching the merits of the action. Damico v. Royal Insurance Company, 383 Pa.Super. 239, 556 A.2d 886 (1989). In our review of a trial court order dismissing an action on such a basis, we must take as true all well-pleaded facts revealed in the complaint and exhibits properly attached thereto. Witmer v. Exxon Corporation, 260 Pa.Super. 537, 394 A.2d 1276 (1978), affirmed 495 Pa. 540, 434 A.2d 1222 (1981); Com. ex rel. Shumaker v. New York & Pennsylvania Co., Inc., 367 Pa. 40, 79 A.2d 439 (1951). It is evident that on this appeal we must carefully review the plaintiffs pleadings as well as any appropriate exhibits.

Plaintiff’s complaint included five counts. Count I asserted that in January 1985, Mergentime entered into a contract with PennDOT for the improvement of a certain section of a state highway in the City of Philadelphia known as the Schuylkill Expressway. In conjunction therewith, INA provided a payment bond on behalf of Mergentime. In February 1985, Mergentime entered into a written subcontract with plaintiff Grimme, pursuant to which Grimme agreed to perform work known as pressure mortar surfacing for the substructure on specific portions of the project. Subsequently, Mergentime and Grimme agreed to expand the subcontract to include repair work on deteriorated concrete at certain locations on the job. Grimme claimed it had completed all of its work under the subcontract as of November 1986. Further, the plaintiff alleged that as of January 1987, it had submitted and defendant Mergentime had approved invoices totalling $272,392.35, of which Mergentime had paid $224,761.79, leaving the sum of $47,630.56 due and owing. In addition, Grimme asserted that defendant Mergentime had agreed, under the subcontract, to pay Grimme a ten percent increase in unit prices for all work performed after May 1, 1986, and that by virtue thereof, Mergentime allegedly owed Grimme an additional $17,-736.64. Based upon these allegations, the plaintiff maintained that it was owed a total of $65,367.20, for which both Mergentime, as principal, and INA, as surety, were jointly and severally liable. In addition, the plaintiff sought additional interest, costs and attorney fees.

Count II of the complaint repeated all of the foregoing assertions of fact, and also alleged that Mergentime was obligated to assure that Grimme’s work would be coordinated with other work on the project to assure that Grimme could perform its work while various ramps were closed to traffic, and so that Grimme could perform its work from staging areas contiguous with the actual work sites. Grimme asserted that Mergentime had failed in such coordination obligations, such that Grimme was forced to perform its work when the ramps were not closed to traffic, and further, was required to work from staging areas far removed from the sites of its construction responsibilities. The plaintiff also contended that compounding the fact that it was forced to work from remote staging areas was the fact that PennDOT noted additional repairs to be performed, which were not included as part of Grimme’s original subcontract.

The plaintiff detailed the alleged damages which resulted from each incident of alleged failure in coordination responsibilities by Mergentime. Thus, the plaintiff asserted a claim for $264,188.68 for cost overruns on one area of ramp repairs denoted as the South Street ramps, and $46,075.88 for cost overruns on a second area of ramp repairs, designated as the University Avenue ramps. With respect to this ramp work, the plaintiff’s claims were based upon the contention that Mergentime coordination failures caused it to work from and move to remote staging or mobilization areas. The balance of the Count II claims, relating to so-called Mainline repairs, allegedly resulted from a combination of the Expressway being open to traffic during the time of the repairs, the requirement that Grimme work from an excessively distant staging area, an excessive number of unanticipated repairs which had to be made, and extra work assigned to Grimme as a result of requests by PennDOT for a significant number of unexpected repairs. The plaintiff contended it experienced out-of-pocket expenses for some of this Mainline work amounting to $161,-714.78, and costs, overhead and profits in the amount of $193,985.42 for other work. In addition, the plaintiff claimed a total of $176,250.00 for lost profits and other problems relating to all three portions of the project.

In Count III, the plaintiff reasserted the allegations set forth in Count I of the complaint. However, in Count III, Grimme only sought a judgment against Mergentime. The Count III claim was for $65,367.20, the same amount as sought in Count I.

Count IV also asserted a claim only against Mergentime. In that regard, Count IV repeated all of the claims for damages, in the same amounts, as were set forth in Count II of the complaint.

In Count V, the plaintiff alleged that by reason of all of the matters alleged in the foregoing sections of the complaint, its working capital and net worth had been impaired such that it had lost all of its bonding capacity. Accordingly, Grimme maintained that it had an inability to obtain work for which contract performance and/or payment bonds would be required. This purported lack of bonding capacity allegedly caused Grimme to suffer losses in an amount in excess of $549,675.59, and would in the future cause it to suffer additional damages. A recovery for these alleged past damages and expected future harm was sought only against Mergentime in Count V.

In addition to the counts in the complaint, it is appropriate to refer to a particular section of the Grimme-Mergentime subcontract, which was an exhibit to the complaint. In Attachment B to the subcontracting agreement, in Section 6, entitled “Delays”, the following is set forth:

Section 6. Delays (a) In the event the Subcontractor’s performance of this Subcontract is delayed or interfered with by acts of the Owner, Contractor, or other Subcontractors, he may request an extension of the time for the performance of same, as herein-after (sic) provided, but shall not be entitled to any increase in the Subcontract price or to damages or additional compensation as a consequence of such delays or interference, except to the extent that the prime contract entitles the Contractor to compensation for such delays and then only to the extent of any amounts that the Contractor may, on behalf of the Subcontractor, recover from the Owner for such delays.

After the plaintiff filed its complaint, the defendants filed preliminary objections. Inter alia, in addition to claiming that none of the counts in the complaint stated a claim upon which relief could be granted, the defendants sought to stay the proceedings as to Counts II and IV, “... pending the outcome of proceedings with PennDOT.” The preliminary objections did not specify the nature of the PennDOT proceedings.

The trial court overruled the preliminary objections of the defendants. In doing so, the trial court noted that defendants’ demurrer to Counts II and IV of the complaint relied exclusively on the delays section of the subcontract, recited above. Rejecting the defense contentions based upon that contractual provision, the trial court stated in an opinion:

Defendants’ reliance upon this part of the Subcontract ignores the long-standing rule that “exculpatory provisions in a contract cannot be raised as a defense where (1) there is an affirmative or positive interference by the owner with the Contractor’s work, or (2) there is a failure on the part of the owner to act in some essential matter necessary to the prosecution of the work. Coatesville Contractors & Engineers, Inc. v. Borough of Ridley Park, 509 Pa. 553, 558, 506 A.2d 862 (1986) citing Gasparini Excavating v. Pennsylvania Turnpike Commission, 409 Pa. 465, 187 A.2d 157 (1963). In the case at bar, plaintiff has alleged just such interference and failure on the defendants’ part and therefore the contract language is inapplicable. Therefore, the motion to dismiss and/or stay Counts II and IV must be denied.

Mergentime and INA thereafter appealed the trial court’s dismissal of their preliminary objections to our court. In a memorandum filed March 20, 1989, our court quashed the appeal, based upon a determination that it was a nonappealable interlocutory order. Grimme Combustion, Inc. v. Mergentime Corporation, 385 Pa.Super. 260, 560 A.2d 793. Subsequently, the Pennsylvania Supreme Court dismissed a petition for allowance of appeal which had been filed by the defendants.

Thereafter, the defendants filed an answer to the plaintiffs complaint, with new matter and a counterclaim. The plaintiff filed a reply with new matter to defendants’ new matter and counterclaim. Mergentime and INA filed a response to the plaintiff’s new matter to defendants’ counterclaim.

On January 5, 1990, the defendants filed their motion to dismiss for lack of subject matter jurisdiction and for failure to join an indispensable party. As noted at the outset of this opinion, Grimme filed a response to the motion to dismiss and the defendants responded with a reply memorandum. Despite his earlier conclusion that Section 6(A) of the Grimme-Mergentime subcontract, pertaining to delays, was inapplicable to exculpate the defendants from liability, the same trial court judge who had considered the preliminary objections ruled that this contractual provision mandated a finding that PennDOT was an indispensable party because a determination of its liability was necessary in order to adjudicate Grimme’s claims. In ordering the dismissal of the action, the trial court did not analyze any of the separate counts of the complaint.

The proper resolution of this appeal requires an understanding of our rules relating to indispensable parties. Two Rules of Civil Procedure are pertinent. Pa.R.Civ.P. 2227, relating to compulsory joinder, provides in Section (a): “Persons having only a joint interest in the subject matter of an action must be joined on the same side as plaintiffs or defendants.” Rule 2227 requires the dismissal of an action brought without the joinder of a necessary party as a defendant. Moorehead v. Lopatin, 300 Pa.Super. 81, 445 A.2d 1308 (1982). Pa.R.Civ.P. 1032 provides that a party waives all defenses and objections which are not raised either by preliminary objection, answer or reply except: “(2) that whenever it appears by suggestion of the parties otherwise that the court lacks jurisdiction of the subject matter or that there has been a failure to join an indispensable party, the court shall dismiss the action.”

A party is to be considered indispensable when its rights are so connected with the claims of the litigants that no decree can be made without impairing its rights, and it must be made a party to protect such rights. Sprague v. Casey, 520 Pa. 38, 550 A.2d 184 (1988); Columbia Gas Transmission Corp. v. Diamond Fuel Co., supra. If no redress is sought against a party, and its rights would not be prejudiced by any decision in the case, it is not indispensable with respect to the litigation. Sprague v. Casey, supra. In Mechanicsburg Area School District v. Kline, 494 Pa. 476, 481, 431 A.2d 953, 956 (1981), our Supreme Court set forth the following guidelines for determining whether a party is to be considered indispensable in pending litigation:

1. Do absent parties have a right or interest related to the claim?
2. If so, what is the nature of that right or interest?
3. Is that right or interest essential to the merits of the issue?
4. Can justice be afforded without violating the due process rights of absent parties?

It has been held that an inquiry into whether a party is indispensable is to be from the prospective of protecting the rights of the absent party, not from the view of whether the joinder or nonjoinder of a party would make the matter more difficult to litigate. See E-Z Parks, Inc. v. Philadelphia Parking Authority, 103 Pa.Cmwlth. 627, 521 A.2d 71 (1987), appeal denied, 517 Pa. 610, 536 A.2d 1334 (1987).

Mindful of these concepts and guidelines, we shall consider the propriety of the trial court’s order dismissing the plaintiff’s complaint. Although the trial court did not do so, we deem it appropriate to analyze the separate counts of the complaint to determine whether PennDOT was properly-found to be an indispensable party.

Count I of the complaint, as related above, essentially averred that the plaintiff had carried out all of its obligations under the subcontract, and was therefore entitled to be paid the balance due for the work it performed. The plaintiff sought a recovery against both Mergentime and its surety, INA. There is nothing in the record to suggest that PennDOT has any right or interest related to that claim, let alone whether such right or interest is essential to the merits of the issue. Moreover, no basis has been established to indicate that a resolution of such claim, without the participation of PennDOT in the litigation, would violate any of PennDOT’s due process rights. Accordingly, it is clear that there was no justification for the trial court’s dismissal of Count I of the complaint.

The same determination is obviously applicable to Count III of the complaint. That count merely restated the same allegations which were presented in Count I, but set forth a claim only against Mergentime. Obviously, the absence of INA as a party against whom relief is claimed in Count III does not affect the conclusions reached as to the lack of indispensability with regard to PennDOT. Count III, like Count I, merely comprises a claim to a right of payment under the Grimme-Mergentime contract. Therefore, we conclude that the trial court further erred in granting a dismissal as to Count III of the complaint.

Counts II and IV involve identical claims. The former count raises them against both defendants, while the latter maintains them only against Mergentime. As described above, Count II describes claims for damages as to three separate parts of the project. With reference to the South Street and University Avenue ramps parts of the project, Grimme maintained that Mergentime had violated its obligations under the subcontract to coordinate the work in an efficient manner, and to assure that Grimme could perform its work from staging areas contiguous with the actual work sites. Again, we can discern no aspect of such claims that might involve a right or interest of PennDOT, and find no reason to hold that justice could not be afforded concerning such claims without violating PennDOT’s due process rights.

Mergentime and IN A contend that Section 6A of the subcontracting agreement, relating to delays, precludes any claim by Grimme for damages for alleged delays and interferences with its work, unless and until it is first established that Mergentime can recover for those claims from PennDOT. We believe that the trial court properly addressed that issue in overruling the preliminary objections of the defendants which were based upon that clause. In Coatesville Contractors & Engineers, Inc. v. Borough of Ridley Park, 509 Pa. 553, 506 A.2d 862 (1986) our Supreme Court addressed a similar issue. In that case, a contract between the plaintiff and the borough called for the contractor to remove silt from a lake bed. Prior to the job being initiated, the lake was drained, and the specifications in the contract provided that it would remain in that condition until all silt removal work had been completed. However, at the time the plaintiff was required to perform the work, water covered the site, occasioning extra expenses in the performance of the contract. The parties’ contract included a no damages for delay provision which was analogous to that before our court in the instant case. The Supreme Court stated the following with regard to the viability of such no delay damage provisions:

The rule in Pennsylvania is that exculpatory provisions in a contract cannot be raised as a defense where (1) there is an affirmative or positive interference by the owner with the contractor’s work, or (2) there is a failure on the part of the owner to act in some essential matter necessary to the prosecution of the work. Gasparini Excavating Co. v. Pennsylvania Turnpike Commission, 409 Pa. 465, 187 A.2d 157 (1963); See Commonwealth of Pennsylvania, State Highway and Bridge Authority v. General Asphalt Paving Company, 46 Pa.Cmwlth. 114, 405 A.2d 1138 (1979) (in spite of contract provisions excluding claims for additional compensation due to delay caused by the owner, contractor awarded additional compensation for three month delay caused by Commonwealth’s direct interference in failing to have a water main expeditiously relocated), and Commonwealth of Pennsylvania, Department of Highways v. S.J. Groves and Sons Co., 20 Pa.Cmwlth. 526, 343 A.2d 72 (1975) (exculpatory provisions of contract held not to prevent recovery by contractor of increased costs in performing due to a fourteen week delay while AT & T relocated a coaxial conduit). “[W]here an owner by an unwarranted positive act interferes with the execution of a contract, or where the owner unreasonably neglects to perform an essential element of the work in furtherance thereof, to the detriment of the contractor, [the owner] will be liable for damages resulting therefrom.” Henry Shenk Company v. Erie County, 319 Pa. 100, 178 A. 662 (1935). 509 Pa. at 560, 506 A.2d at 865-6.

While the claim in the Coatesville Contractors case involved an action by a contractor directly against the owner of the project, in the instant case Mergentime and IN A stand in no different legal position than did the defendant borough in that case. The defendants here seek to rely on a similar exculpatory contract provision as a defense in a situation where the plaintiff has alleged that Mergentime, by its own affirmative interference with the work, or its failure to act in an essential matter necessary for the prosecution of the work, caused the plaintiff to suffer losses. In light of the fact that the plaintiff’s allegations must be taken as true, for the purpose of ruling on the motiomfor dismissal, the defendants may not rely upon the no delay damages provision of the agreement in support of their request for dismissal.

We therefore conclude that there was no basis for the trial court to dismiss the allegations of the plaintiff’s complaint regarding the South Street and University Avenue ramps work. The plaintiff must be permitted to pursue such claims further in this litigation.

A third portion of the claims raised by the plaintiff in Counts II and IV, regarding the Mainline repairs, raised a suggestion of possible PennDOT interest or involvement in the matters in dispute. The plaintiff alleged that as originally anticipated, it was to perform the Mainline repair work while the westbound lanes of the road were closed to traffic, thereby allowing it direct access to its work areas. However, it was asserted that by the time PennDOT commenced marking activities for repairs under the Mainline, and Grimme could commence its labors there, such work was completely out of sequence with the rest of the work on the project, and had to be performed while the westbound lanes were open. Thus, according to the complaint, Grimme was required to perform the work marked out under the Mainline from remote staging areas, much further from the work site than had been originally and reasonably anticipated. Further, the complaint asserted that the inefficiencies which resulted from the remoteness of the staging areas were compounded by the fact that PennDOT began to mark matters for repairs which had not been included as a part of the original subcontract. Grimme claimed it was required to perform significant extra work, at unexpected locations, which entitled it to additional compensation.

Although the third part of Count II of the complaint alleges some involvement by PennDOT in the circumstances leading to the accrual of additional claims by Grimme, all of the plaintiffs claims are against general contractor Mergentime and its surety, IN A, and no allegation of a right of recovery against PennDOT is raised. Again, there is no apparent right or interest of PennDOT related to such claims. The defendants assert that PennDOT has an interest in the outcome of these claims, as it will ultimately be held liable for any recovery by Grimme. We are not prepared to make the logical leap that such a conclusion would require. It is entirely conceivable that any right of recovery by the subcontractor against the general contractor and/or its surety regarding such matters would not result in any corresponding right of the general contractor to maintain a successful claim against PennDOT for all or some of the amounts Grimme might recover under Count II of its complaint. Thus, we cannot hold that any right or interest of PennDOT is essential to the merits of the issues raised, nor is there any ground for finding that justice cannot be afforded without violating due process rights of PennDOT. It is evident that the trial court erred in dismissing the claims raised by Grimme in the third part of Count II of its complaint.

As discussed above, Count IV comprises a repetition of the claims raised in Count II by the plaintiff, but in Count IV the plaintiff asserts a right of recovery only against Mergentime, and not against both the general contractor and IN A. That distinction does not alter the conclusion that we have reached concerning the issue of whether PennDOT must be considered an indispensable party. Thus, we must also reverse the trial court’s dismissal of Count IV of the complaint.

Count V likewise contains claims only against Mergentime. It repeats all material allegations of Counts I and II. The complaint then asserts that by reason of the circumstances alleged, its working capital and net worth had been impaired to the extent that it lost its bonding capacity, and thereby, its ability to obtain work for which a performance or payment bond was required. Further, it alleges that the loss of bonding had caused Grimme to suffer significant damages and would continue to cause Grimme to suffer future additional damages.

None of the allegations raised in Count V of the complaint appear to involve any right or interest of PennDOT, and there is no suggestion that justice could not be afforded on such claims without violating PennDOT’s due process rights. In such circumstances, we again conclude that PennDOT may not be considered an indispensable party. Therefore, we find that the trial court committed error in dismissing Count V of the plaintiffs complaint.

Finally, we address the argument of Mergentime and INA that the trial court’s order must be affirmed on the basis that the Pennsylvania Board of Claims has exclusive jurisdiction over the claims raised by Grimme in this litigation. This contention was raised in the trial court by the defendants, but was not addressed by the trial court judge in ruling on the motion for dismissal. However, as the defendants point out, an order of a lower court may be affirmed on any ground, as long as the result is correct. Gwinn v. Kane, 465 Pa. 269, 348 A.2d 900 (1975); Coatesville Development Company v. United Food and Commercial Workers, AFL-CIO, 374 Pa.Super. 330, 542 A.2d 1380 (1988). Moreover, we recognize that objections to the subject matter jurisdiction of a court may be raised at any stage in the proceedings by a party, or by the court on its own initiative. Commonwealth v. Helms, 352 Pa.Super. 65, 506 A.2d 1384 (1986).

The defendants point out in their brief that the Board of Claims has exclusive jurisdiction over claims against an agency of the Commonwealth arising from contracts entered into by the Commonwealth. See Act of October 5, 1978, P.L. 1104, No. 260, § 3, 72 Pa.S.A. § 4651-4. Although we recognize the exclusivity of such jurisdiction when claims are made against an agency of the Commonwealth, based upon contracts entered into by the Commonwealth, that is clearly not the nature of the instant proceeding. The Commonwealth has not been made a party to this litigation by the plaintiff, and the subcontract in issue is not one which was entered into by the Commonwealth.

However, the defendants claim that the exclusive jurisdiction of the Board of Claims also extends to claims by a subcontractor against a contractor if they arise from a contract issued by the Commonwealth. In support of that position, the defendants cite four Commonwealth Court cases. No extended recitation of the facts or holdings in such cases is necessary. Suffice it to note that in all four cases, the Commonwealth or one of its instrumentalities was a party defendant in the case. Such a factor materially distinguishes such cases from the instant litigation, in which neither the Commonwealth nor any of its subdivisions, agencies, or instrumentalities has been made a party defendant by the plaintiff.

The defendants have not cited a single decision standing for the purported rule that every dispute which arises between a general contractor and a subcontractor, on a Commonwealth project, must be resolved by the Board of Claims. In the absence of case law, or any statutory language supporting the defendants’ position, in light of the fact that neither the Commonwealth nor any of its subdivisions is a party in this litigation, we find no merit in the defendants’ position and reject it. The jurisdictional contention regarding the Board of Claims provides no basis for upholding the trial court’s dismissal of the plaintiff’s complaint.

Accordingly, the order of the trial court is hereby reversed and this case is remanded to the trial court for further proceedings. Jurisdiction is not retained.

CAVANAUGH, J., files a dissenting opinion.

CAVANAUGH, Judge,

dissenting.

I respectfully dissent. In my opinion the court below properly dismissed the complaint for failure to join an indispensable party. The underlying contract was between PennDOT and Mergentime as the prime contractor on the Schuylkill Expressway project. The Insurance Company of North America issued a performance bond as Mergentime’s security.

Mergentime subcontracted to Grimme the portion of its contract requiring pressure mortar surfacing of certain areas of the project. The subcontract contained a clause (Section 6(A)) providing that Grimme could recover damages for delays or interferences only if Mergentime’s contract with PennDOT entitled Mergentime to compensation therefor, and then only to the extent of the amount PennDOT had to pay:

Section 6. Delays (A). In the event the subcontractor’s performance of this Subcontract is delayed or interfered with by acts of the Owner, Contractor or other Subcontractors, he may [r]equest an extension of time for the performance of same ... but shall not be entitled to any increase in Subcontract price or to damages or additional compensation as to the consequence of such delays and interference except to the extent that the prime contract entitles the Prime Contractor to compensation for such delays and then only to the extent that the Contractor may, on behalf of the Subcontractor, recover from the Owner for such delays. (Emphasis added.)

Accordingly, PennDOT was inextricably involved in any dispute between Grimme Combustion, Inc. and Mergentime Corp. for delays, “and extra work assigned to Grimme as a result of requests by PennDOT for a significant number of unexpected repairs.” (Majority, page 625). In my opinion, PennDOT is an indispensable party as determined by the court below and I would affirm the order of the court.

      . The majority stresses the fact that "in the instant litigation ... neither the Commonwealth nor any of its subdivisions, agencies, or instrumentalities has been made a party defendant by the plaintiff.” (Pages 84-85) This is correct, and the reason that the complaint was dismissed by the court below is that PennDOT was not a party, but should have been.
      In the action in the Court of Common Pleas, the plaintiff did not name PennDOT as a party defendant because jurisdiction would then lie in the Board of Claims.

      . The appellee is not left without a forum. If PennDOT is joined, jurisdiction would lie with the Board of Claims which has exclusive jurisdiction over claims involving the Commonwealth arising from contracts entered into with the Commonwealth. 72 Pa.S. § 4651-4.