author: POPOVICH, Judge: CAVANAUGH, Judge,

text:
    545 A.2d 326
    Carl Bruce FUNK, Appellant, v. Margaret Louise FUNK, Appellee.
    Superior Court of Pennsylvania.
    Argued Feb. 3, 1988.
    Filed July 6, 1988.

      Kenneth J. Sparler, York, for appellant.
    William C. Gierasch, Jr., York, for appellee.

      Before CAVANAUGH, OLSZEWSKI and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from a child support order entered by the York County Court of Common Pleas. The appellant alleges that the lower court abused its discretion when determining the amount of support to be paid. Specifically, Mr. Funk questions: 1) Whether the court erred by failing to comply with the support guidelines enunciated in Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984) and codified in 23 Pa.C.S.A. § 4322; and 2) Whether the court erred by failing to consider the earning capacity of the mother and the child care expenses of the father when determining the support award. Additionally, the appellant alleges that the court erred by requiring him to pay child support arrearages for the period when the appellee removed the children from Pennsylvania. After reviewing the record and the parties’ brief, we vacate the support order in part, remand the case for additional evidentiary hearings prior to final adjudication of the parties’ support obligations, and we affirm that portion of the support order which directs the appellant to pay the arrearages.

The record reveals that C. Bruce Funk and Margaret L. Funk were married on September 8, 1977. Two children were born during their marriage: Jessica Funk, born May 26, 1980, and Kevin Funk, born September 4, 1982. The parties to this action are now divorced, although issues pertaining to the divorce are currently pending.

When the couple first separated in 1986, Mrs. Funk was temporarily awarded primary physical custody of her children. On July 28, 1986, a temporary child support order was entered directing Mr. Funk to remit $134.00 per week for the support of his children. Mr. Funk made regular child support payments until September 4, 1986, when Mrs. Funk, in violation of the temporary custody order, removed the parties’ two children from the court’s jurisdiction without notifying the appellant, the York County Domestic Relations Office or her attorney of her and the children’s whereabouts. During the period in which the children’s whereabouts were concealed, Mr. Funk discontinued payment of the child support. Six weeks later, Mrs. Funk returned to York County with the children, and, on October 17, 1986, a contempt/custody proceeding was held. The appellee was found in contempt and was given a suspended sentence of ninety (90) days in jail. In addition, the court entered a new temporary custody order awarding Mr. Funk primary physical custody of his children. On October 28, 1986, the court suspended Mr. Funk’s obligation to make support payments since physical custody of his children had been transferred to him.

On May 5, 1987, a consent order was entered by the York County Court of Common Pleas establishing joint physical custody of the children. Pursuant to the custody order, a schedule has been implemented whereby each party enjoys physical custody of the children approximately seven (7) days out of a fourteen (14) day period.

On August 5, 1987, the support hearing was held, and an order was entered directing that: 1) Mr. Funk pay to Mrs. Funk arrearages of $135.00 per week for the period when Mrs. Funk had left the jurisdiction with her children; 2) Mr. Funk was not obligated to pay child support during the period he was the children’s primary physical custodian; and 3) During the period of joint physical custody, i.e., from May 5, 1987, until the present, Mr. Funk must remit $95.00 per week to Mrs. Funk for child support until further order. Mr. Funk appeals from the August 5, 1987, court order.

Instantly, the appellant alleges that the lower court abused its discretion when determining the amount of his support obligation. After careful consideration, we agree with the appellant. When reviewing the lower court’s decision, our duty is to insure that the lower court’s support order is fair, not confiscatory, allows for the parents’ reasonable living expenses, and is consistent with the parents’ and children’s “station in life” and “customary standard of living.” Bower v. Hoover, 370 Pa.Super. 321, 536 A.2d 426, 427 (1988); Fee v. Fee, 344 Pa.Super. 276, 496 A.2d 793, 796 (1985); Shindel v. Leedom, 350 Pa.Super. 274, 504 A.2d 353, 356 (1986); Com. ex rel. Loring v. Loving, 339 Pa.Super. 92, 488 A.2d 324, 325 (1985). Additionally, we are mindful that the lower court’s paramount concern while making support determinations should be the protection of the best interest of the children. Michael v. Michael, 360 Pa.Super. 312, 520 A.2d 473, 475 (1987), allocatur denied, 515 Pa. 623, 531 A.2d 431; Gerber v. Gerber, 337 Pa.Super. 580, 487 A.2d 413, 414 (1985). In Fee, 496 A.2d 793, Judge Beck restated the standard of review applicable in child support cases:

On appeal, a trial court’s child support order will not be disturbed unless there is insufficient evidence to sustain it or the court abused its discretion in fashioning the award. Commonwealth ex rel. Robinson v. Robinson, 318 Pa.Super. 424, 465 A.2d 27 (1983); Downie v. Downie, 314 Pa.Super. 548, 461 A.2d 293 (1983). An abuse of discretion is not “ ‘merely an error of judgment, but if in reaching, a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will, as shown by evidence on the record, discretion is abused.’ ” Boni v. Boni, 302 Pa.Super. 102, 109, 448 A.2d 547, 550 (1982) (citations omitted); Commonwealth ex rel. Darling v. Darling, 300 Pa.Super. 62, 445 A.2d 1299 (1982) Fee, 496 A.2d at 794. See also Marshall v. Ross, 373 Pa.Super. 235, 540 A.2d 954 (1988); Bower, 536 A.2d at 427; Palmatier v. MacCartney, 365 Pa.Super. 300, 529 A.2d 518, 519-520 (1987); DeMasi v. DeMasi, 366 Pa.Super. 19, 530 A.2d 871, 878 (1987).

With these standards in mind, we begin our analysis of the appellant’s contention that the lower court erred by failing to follow the child support determination guidelines established by our Supreme Court in Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984), and codified in 23 Pa.C. S.A. § 4322. In Melzer, supra, our Supreme Court set fourth uniform guidelines for the calculation of child support. It held that, in making such calculations, the hearing court must determine and state on-the-record: “1) reasonable needs of the children which reflect the needs, customs and financial status of the parents; 2) respective abilities of the parents to provide support which are identified in part by reasonable living expenses; 3) use a formula to calculate each parent’s total support obligation; and 4) credit for support provided directly to the children.” DeMasi, 530 A.2d at 877 summarizing Melzer, 480 A.2d 991. See also Ryan v. DeLong, 371 Pa.Super. 248, 538 A.2d 1 (1987); Bower, 536 A.2d at 427; Michael, 520 A.2d at 475; Riess v. De Luca, 353 Pa.Super. 622, 510 A.2d 1239, 1240-41 (1986).

We recognize that the child rearing expenses in a shared custody setting vary from those in the sole custody setting, and, consequently, the formula for shared custody support determinations will not be identical to that envisioned in Melzer, supra. Obviously, the lower court should consider those variations in child care expenses unique to the shared custody situation when determining child support. See Bower, 536 A.2d at 428; Fee, 496 A.2d at 795, 796 n. 5. However, contrary to the appellee’s contention that Melzer type formulas are “inapplicable to determine support in shared custody situations” (Appellee Brief p. 9), we firmly believe that the lower court must make flexible application of a Melzer type formula allowing for those anomalies inherent in shared custody arrangements, e.g. the duplication of reasonable child care expenses.

Instantly, the appellant is correct that the record is void of any indication that the lower court applied a formula or framework to assist in its adjudication of the support petition. In fact, we find that the lower court’s analysis with respect to the parties support obligations is wholly insufficient. The central issue in a support adjudication is the “children’s reasonable living expenses,” and the lower court’s determination of the children’s living expenses does not appear on the record. Clearly, the lower court cannot fully protect the best interest of the children without first determining their reasonable needs. Further, the lower court failed to calculate on-the-record the appellant’s reasonable living expenses which is also of primary importance in a child support proceeding. We find that the lower court abused its discretion when it failed to follow the mandate of Melzer, supra, and inadequately explained on-the-record the reasons for its decision. Moreover, in Ryan, supra, and Marshall, supra, we expressly stated that: “To insure that an actual dollar figure is determined as to the reasonable needs and expenses of the parents and children, the calculated Melzer formula must be in the record, (emphasis added).” 538 A.2d at 4; Marshall, 540 A.2d at 956.

Next, the appellant alleges that the lower court erred when it failed to consider the appellee’s earning capacity and his child care expenses. Again, we agree with the appellant. Both parents are equally responsible for supporting their children, and the extent of their individual support obligations is determined by their respective capacities to earn and abilities to pay. Bower, 536 A.2d at 427; DeWalt v. DeWalt, 365 Pa.Super. 280, 529 A.2d 508, 510 (1987); DeMasi, 530 A.2d at 877; Fee, 496 A.2d at 796; Shindel, 504 A.2d at 356. A parent’s ability to pay is determined by analyzing his or her actual and potential cash flow from financial resources, property interests, other investments and earning capacity. DeWalt, 529 A.2d at 510; DeMasi, 530 A.2d at 878-879; Shindel, 504 A.2d at 356. All direct and indirect income, from whatever source, is to be evaluated when determining a party’s support obligation. Shindel, 504 A.2d at 356; Fee, 496 A.2d at 796 n. 6. Finally, “[t]here is no presumption that the father, solely because of his sex and without regard to the actual circumstances of the parties, must accept the principal burden of financial support for the children. See Conway v. Dana, [456 Pa. 536] at 539, 318 A.2d [324] at 326 [1974].” Bower, 536 A.2d at 427.

Instantly, the lower court, commenting on the mother’s earning capacity, stated:

There was no evidence submitted to warrant the assignment of an earning capacity to the Wife and it is clear from the evidence that she did not have a job and her only prior experience was in a part-time capacity.
If the Court were to assign an earning capacity, it would not exceed a minimum wage rate or be in excess of the $430 per month that was awarded to her as Alimony Pendente Lite. (Memorandum Op. p. 4-5)

A cursory review of the record clearly indicates that the lower court completely disregarded that evidence which pertained to the mother’s income and earning capacity. In a prior action for spousal support, the same lower court adopted the Master’s Report and Recommendation on the Issues of Alimony Pendente Lite, Interim Counsel Fees, Costs and Expenses and awarded the mother $430.00 per month in Alimony Pendente Lite. Presently, the lower court reiterated that decision in the order before us. However, the lower court, in awarding child support, inexplicably ignored the Master’s prior finding that the appellee had an earning capacity of $640.00 per month (32 hours per week $ $5.00 per hour). The court also ignored the appellee’s prior testimony that she has an earning capacity of $5.00 per hour. Additionally, the lower court recognized that the appellee received monthly financial assistance from her parents but then erroneously refused to consider that aid as part of the appellee’s income.

We are cognizant of the fact that the wife has not worked extensively outside the home. However, the appellant is a 1975 graduate of Duke University with a degree in Psychology. Obviously, the appellee has a greater earning capacity than “minimum wage” or “the $430 per month that was awarded to her as Alimony Pendente Lite.” Since both parents share equally in the responsibility of child support according to their respective abilities, we find the lower court erred when it failed to assign the appellee an earning capacity and support obligation consistent with the evidence presented. See Bower, 536 A.2d 426, 427 (order obligating father to assume responsibility for greater share of child support is abuse of discretion when both parents are equally able to support their child.)

Further, we find that the lower court erred when it refused to allow the appellant to claim his children’s daycare expenses as “support provided directly to the children” or as a portion of his reasonable living expenses. See Loring, 488 A.2d at 326 (trial court’s disregard for parent’s reasonable living expenses constitutes an abuse of discretion); DeMasi, 530 A.2d at 877; Riess, 510 A.2d at 1240-1241. The appellant desires to place his children in a day care facility on the days which he has custody of the children and must work. However, the lower court did not believe this to be a reasonable expenditure and stated:

... [T]he mother is presently unemployed and has offered to take care of the children during that period of time. This arrangement is unacceptable to the father; however, from an economic standpoint, it would seem to make a great deal of sense if that were to be done as it would provide more money for both families and there is apparently no testimony at this particular time as to what adverse affect that might have on the children. (Order p. 2)

Curiously, the lower court’s decision seems to be an effort to adopt the “nurturing parent doctrine” in this shared custody situation. In Com. ex rel. Wasiolek v. Wasiolek, 251 Pa.Super. 108, 380 A.2d 400 (1977), we applied the reasoning of the nurturing parent doctrine and determined that a custodial parent who stays at home and cares for a child does, in fact, support that child. The nurturing parent’s services are valuable to the child and the non-custodial parent. Commenting on the “nurturing parent doctrine,” we stated that:

... Of course, a court is not strictly bound by the nurturing parent’s assertion that the best interest of the child is served by the parent’s presence in the home____ But the court must balance several factors before it can expect the nurturing parent to seek employment. Among these factors are the age and maturity of the child; the availability and adequacy of others who might assist the custodian-parent; the adequacy of available financial resources if the custodian-parent does remain at home. We underscore that, while not dispositive, the custodian-parent’s perception that the welfare of the child is best served by having a parent at home is to be accorded great weight in the court’s calculation of its support order.

Wasiolek, 380 A.2d at 402-403. See also Bender v. Bender, 297 Pa.Super. 461, 444 A.2d 124, 126 (1982); Stredny v. Gray, 353 Pa.Super. 376, 510 A.2d 359, 363 (1986).

Instantly, the record does not reflect that the lower court used a Wasiolek analysis prior to refusing to allow the appellant to claim reasonable day care expenses and suggesting that the appellee remain at home to care for the children. The children subject to this order are old enough to attend elementary school. Thus, except during the children’s summer vacation, the mother would care for the children only several hours per day before the father left work and resumed custody. The appellant, who is also a custodial parent, wants the children to attend a respected day-care facility after school. Certainly, the trial court’s discretion is not so broad as to allow the court to deny arbitrarily the custodial father’s reasonable wishes regarding child care.

In addition, contrary to the court’s opinion, allowing the appellee to care for the children “full-time” would not necessarily provide more money to both families since the appellee would be unable to work except on alternating weekends. Consequently, the effect of the order is all but to eliminate the appellee’s opportunities to earn income and increase her earning capacity. We believe that, if the appellee does pursue a career, it is entirely probable that all concerned will achieve a higher standard of living.

Moreover, the lower court cannot, through its support order, implement a de facto change in the parties’ custody order. In effect, the lower court, because the appellant is gainfully employed, has ordered him to choose between two options he finds objectionable, either continue to pay the day-care costs without credit or allow an increase in the appellee’s custody rights without an actual custody proceeding. Consequently, we find that the lower court clearly abused its discretion when it refused to allow the appellant to claim child day-care costs as support given directly to his children or as a portion of his reasonable living expenses. See Marshall, 540 A.2d at 956 (trial court must consider expenses incurred by appellant in providing for child currently residing with him); Bower, 536 A.2d at 427 (father’s sex cannot be weighed against him); Murphey v. Hatala, 350 Pa.Super. 433, 504 A.2d 917, 924 (1986), allocatur denied 516 Pa. 634, 533 A.2d 93 (1987) (parent’s employment cannot be a factor weighed against him in a custody proceeding); Loring, 488 A.2d at 326 (reasonable living expenses must be allowed unless excessive or assumed to avoid child support).

Finally, we summarize our decision by stating that the court erred when awarding support by failing to follow the mandates of Melzer, supra, and failing to consider all factors relevant to an award of support. In Stredny, supra, we stated that “[w]here the record demonstrates that the lower court has failed to consider all factors relevant to the award of support, we will remand for a full evidentiary hearing.” Stredny, 510 A.2d at 364, citing Pawol v. Pawol, 293 Pa.Super. 29, 437 A.2d 974 (1981). Accordingly, we remand for a full evidentiary hearing in pursuant to the provisions of this opinion.

Next the appellant alleges that the court erred in ordering him to remit to the appellee child support arrearages of $134.00 per week for the period in which Mrs. Funk removed the children from the jurisdiction in violation of court order. We find no error in the court’s decision.

The law in Pennsylvania is well established that “[t]he right of a young child to support from its father ‘is well nigh absolute.’ ” Com. v. Mexal, 201 Pa.Super. 457, 193 A.2d 680, 682 (1963); Com. ex rel. Firestone v. Firestone, 158 Pa.Super. 579, 45 A.2d 923 (1946); Kramer v. Kelly, 265 Pa.Super. 58, 401 A.2d 799, 803 (1979); Com. ex rel. Zercher v. Bankert, 266 Pa.Super. 595, 405 A.2d 1266, 1269 (1979). In Mexal, supra, we stated:

The duty to support children is not dependent upon custody of them. Even assuming that the mother improperly removed the children from the defendant’s home to another state, her misconduct in doing so cannot destroy the right of those children to support from their father, (citation omitted).

Mexal, 193 A.2d at 682.

An exception to the Mexal rule sufficient to relieve a father of his duty to pay child support occurs only when the evidence demonstrates that the mother has acted in an extremely improvident manner, well in excess of mere misconduct. See Com. ex rel. Chila v. Chila, 226 Pa.Super. 336, 313 A.2d 339 (1973); Zercher, 405 A.2d at 1269, explaining Chila, supra, and Com. ex rel. Shaffer v. Shaffer, 90 York Legal Record 130 (1976), affirmed per curiam 247 Pa.Super. 618, 373 A.2d 1142 (1977); Kramer, 401 A.2d at 803-804, distinguishing Chila, supra.

The circumstances in Kramer v. Kelly, supra, are almost identical to those currently before us. Therein, the mother removed her child from the court’s jurisdiction without informing the court or the father of her and the child’s whereabouts. Six months later, with the aid of a private investigator, the father was able to locate his child. During the period of the child’s concealment, the father withheld the child support payments. Subsequently, we affirmed the lower court’s order directing the father to pay the child support arrearages and stated:

It is an accepted principle that the misconduct of the mother does not affect a father’s duty to support his child. Indeed, this duty is well nigh absolute, and a support order must ordinarily be complied with even if the actions of the wife place her in contempt of court, (citations omitted).

Kramer, 401 A.2d at 803.

Likewise we are not persuaded by the appellant that he is not obligated to pay the child support payments for the period the children were taken from the jurisdiction. While Mrs. Funk was held in contempt, we do not believe that her misconduct rose to the level of “extreme improvidence.” Consequently, we hold that the appellant must pay the arrearages and reiterate that “[a]bsent the extreme circumstances present in Child, we are loath to deprive the child of support payments because of the improvident actions of the mother.” Kramer, 401 A.2d at 804.

In conclusion, we find that the lower court erred when determining the parties’ support obligations. The lower court failed to apply a child support formula and failed to explain adequately on the record the reasons for its allocation of parental support obligations. Further, the court erred when it did not determine the appellee’s earning capacity and when it refused to allow the appellant’s reasonable child day-care expenses. Consequently, we vacate that portion of the order which establishes the parties’ support obligation and remand for additional proceedings in accordance with the provisions of this opinion. However, we affirm that portion of the order which directs the appellant to pay the child support arrearages.

CAVANAUGH, J., files a concurring opinion.

CAVANAUGH, Judge,

concurring:

I join in the opinion of the court and write separately only to comment upon that part of it which sets forth the standard of review for determining whether an abuse of discretion has occurred.

The majority acting with ample precedent, cites this court’s decision in Fee v. Fee, 344 Pa.Super. 276, 279, 496 A.2d 793, 794 (1985), which in turn cites Boni v. Boni, 302 Pa.Super. 102, 109, 448 A.2d 547, 550 (1982), for the proposition that “[a]n abuse of discretion is not ‘merely an error of judgment.’ ” The problem is that “not merely an error of judgment” may be read to practically foreclose appellate review. I take the phrase to mean that although the reviewing court might exercise its judgment in a different manner, if the record supports the judgment of the trial court, the appellate court must leave the judgment undisturbed. However, the oft repeated maxim is too easily recast and can take on what I believe to be an unintended meaning. See Straub v. Tyahla, 274 Pa.Super. 411, 414, 418 A.2d 472, 474 (1980) (“an abuse of discretion is merely an error of judgment”). So fortified, an abuse of discretion standard becomes one in which a reviewing court must tolerate what it concludes to be a finding of error of judgment. While it is true that in applying the abuse of discretion standard on appeal the reviewing court must view the lower court’s exercise of judgment in a less critical and more reluctant manner than ordinarily, it would not seem to admit of countenancing a decision which makes an error of judgment particularly in a matter such as the present which involves support of children.

      . The basic custody schedule was stipulated by the parties and was explained in the agreed joint custody order as follows:
      The parties shall have physical custody of the children on alternate weekends from 6:00 p.m. on Friday to 8:30 a.m. on Monday. The father shall have physical custody of the children on Monday and Tuesday and the mother shall have custody on Wednesday and Thursday. Mother’s custody of Kevin will begin at 12:00 noon on Wednesday and end on Friday at a time to be specified by the joint custody counselor described in paragraph 4. Mother’s custody of Jessica will begin at 3:30 p.m. on Wednesday and end at 8:30 a.m. on Friday. On those occasions when mother’s weekday custody is followed by weekend custody, she shall retain custody of the children for this entire period without interruption. When father’s weekday custody is preceded by weekend custody, he shall likewise have custody of the children for the entire period without interruption.

      . 23 Pa.C.S.A. § 4322. Support Guidelines reads as follows:
      The courts of common pleas shall develop guidelines for child and spousal support so that persons similarly situated shall be treated similarly. The guidelines shall be based upon the reasonable needs of the child or spouse seeking support and the ability of the obligor to provide support. In determining the reasonable needs of the child or spouse seeking support and the ability of the obligor to provide support, the guideline shall place primary emphasis on the net income and earning capacities of the parties, with allowable deviations for unusual needs, extraordinary expenses and other factors, such as the parties’ assets, as warrant special attention.
      18, Oct. 30, P.L. 264, No. 66, 1, effective in 90 days.

      . This case is distinguishable from Fichthorn v. Fichthorn, 368 Pa.Super. 305, 533 A.2d 1388 (1987). In Fichthorn, supra, the mother received aid from her father-in-law in the form of "loans”, and we found no abuse of discretion by the trial court when it refused to consider the "loans" as income. However, instantly, the testimony regarding the financial assistance that the appellee receives from her parents was insufficient for the court to determine the aid was in the form of “loans.” Thus, the lower court abused its discretion in not considering the funds as income or at least determining the fund's true nature.

      . The Master’s findings from the prior Alimony Pendente Lite determination suggested that the appellee would work an average of four days per week, eight hours per day. The Master noted that, under the existing custody agreement, the appellee would have to work one day per week when she had physical custody of the children. If the appellee was to care for the children every weekday, as proposed by the instant order, she would only be available to work on the alternating weekends that the appellant has custody of the children.


source: Caselaw Access Project

author: HESTER, Judge:

license: Public Domain

text:
    545 A.2d 334
    Ansy L. SCOTT, Appellant, v. EXTRACORPOREAL, INC.
    Superior Court of Pennsylvania.
    Argued Feb. 11, 1988.
    Filed July 11, 1988.

      Richard W. Rogers, Norristown, for appellant.
    James E. Farrell, Jr., New Hope, for appellee.
    Before TAMILIA, HOFFMAN and HESTER, JJ.
   HESTER, Judge:

Ansy L. Scott appeals from the order of summary judgment entered in the Court of Common Pleas of Montgomery County on July 6,1987. This action arose out of appellant’s discharge from her employment with appellee-Extracorporeal, Inc. In this appeal, appellant alleges that the entry of summary judgment was improper since she was under a contract precluding her dismissal without just cause and due to the fact that the discharge contravened public policy. We affirm.

Appellant was hired by Extracorporeal in 1980 to work on its assembly line at its manufacturing facility in Valley Forge, Pennsylvania. Extracorporeal’s business is the development, manufacture, and distribution of medical devices. Upon hiring appellant, a company manager told her the job would be “permanent” and that there would be “a lot of overtime.” Appellant executed a document acknowledging that she would be a permanent employee following the successful completion of a ninety-day probationary period. A handbook was distributed setting forth numerous details about company policies.

On August 25, 1983, a disturbance involving appellant occurred on the floor of the plant. One of appellant’s co-worker’s on the assembly line, Frances Adaey, “talked very loud ... [about how] she was going to kick somebody’s ass.” Notes of Testimony, (N.T.), 10/17/86, at 18. Appellant attempted to ignore her. Ms. Adaey proceeded to insult appellant, stating that she knew a “state patient” when she saw one. Appellant’s supervisor was informed of the disturbance, and he called all of the workers in the department into his office. The supervisor inquired about the disturbance and Ms. Adaey accused appellant of telling lies about her. The supervisor told those assembled he wanted the “nonsense” to stop. Ms. Adaey told him that she did not care what he said, that she and her husband were going to “kick some asses.” Id. at 23. She told appellant that the remarks were directed at her. “I just ignored her and laughed,” testified appellant, “and I told her I wasn’t afraid of her____ I said you hit me, I said I' will hit you back.” Id. The supervisor repeated his admonition that the disturbance must stop and dismissed the meeting. As appellant walked out the door, Ms. Adaey struck her on the head from behind, knocking her unconscious. When she awoke, she discovered Ms. Adaey’s hand on her head. Ms. Adaey pulled hair from appellant’s head. It required eight women to pull Ms. Adey from appellant. Id. 24-27. Both appellant and Ms. Adaey were sent home. Appellant was subsequently fired for fighting, and she filed suit against Extracorporeal. Summary judgment was entered in favor of the latter.

Our standard of review for orders of summary judgment is as follows:

Summary judgment may be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law____ It is basic that summary judgment may be entered only in a case that is clear and free from doubt.

Rossi v. Pennsylvania State University, 340 Pa.Super. 39, 44-45, 489 A.2d 828, 831 (1988).

The employment at-will presumption holds that absent a contract to the contrary, an employee may be discharged for any or no reason. Darlington v. General Electric, 350 Pa.Super. 183, 504 A.2d 306 (1986).

Taking a nationwide view of the law in this area, it is apparent that what once was the corpus juris of employment relations has lately become an amorphous mass of confusion replete with holdings that defy reconciliation from one jurisdiction to the next. The at-will presumption, the citadel that once governed the field with such predictability, has been eroded of late by piecemeal attacks on both the contract and tort fronts and the entire field seems precariously perched on the brink of change.

Martin v. Capital Cities Media, Inc., 354 Pa.Super. 199, 208, 511 A.2d 830, 834 (1986).

“Pennsylvania has thus far escaped the widescale turbulence so common to the field and still clings to the at-will presumption.” Id. The sine qua non of the presumption is that except in rare instances, discharges will not be reviewed in a judicial forum. The presumption may be overcome by express contract, implied in-fact contract (that is, the surrounding circumstances of the hiring may indicate that the parties did not intend it to be at-will), and additional consideration passing from the employee to the employer (that is, if the employee bestows a legally sufficient benefit or incurs a sufficient detriment for the benefit of the employer beyond the services for which he was hired, a court may infer that the parties intended to overcome the at-will presumption). An employer has no right to discharge even an at-will employee if the firing would contravene a clear public policy or if it is effected with the specific intent to harm the employee. A dismissal which is improper for either reason may be remedied by a tort action in wrongful discharge. Veno v. Meredith, 357 Pa.Super. 85, 515 A.2d 571 (1986). Several recent decisions have noted that any further erosion of the at-will presumption in Pennsylvania should be effected by the legislature, not the courts. Darlington v. General Electric, supra; Martin v. Capital Cities Media, Inc., supra; and Veno v. Meredith, supra.

Appellant argues that the trial court erred in granting summary judgment as there was evidence raising a material question of fact that she had entered into a lifetime or permanent employment relationship. In support of this, she points to her deposition where she testified that upon being hired, her manager told her that she “could have a permanent job and there was a lot of overtime.” N.T., 10/17/86, at 15. She also points to the fact that an employee handbook was delivered to her advising that she would achieve permanent employment status after the successful completion of a ninety day probationary period and also listing various offenses which could be cause for termination. She further cites an agreement she executed when she was hired which states, among other things, that the employer would have all rights to any inventions or improvements she might make or conceive and that she would not divulge the employer’s confidential information. We find no merit to this contention. We shall examine each of the factors asserted by appellant. The promise of “permanent” employment alone is too broad to be enforced. Pennsylvania appellate decisions have invariably evinced a marked reluctance to enforce employment contracts “for life” or of similar breadth. Recent cases holding that such promises do not overcome the at-will presumption include: Ross v. Montour Railroad Co., 357 Pa.Super. 376, 516 A.2d 29 (1986) (expectation of “life long” employment alone not sufficient to overcome the at-will rule); Murphy v. Publicker Industries, Inc., 357 Pa.Super. 409, 516 A.2d 47 (1986) (promise of life-time employment is not in itself definite enough to overcome the at-will presumption); Veno v. Meredith, 357 Pa.Super. 85, 515 A.2d 571 (1986) (employer’s statements to employee, including “I want to retire together,” held too broad and vague to overcome the at-will presumption); Darlington v. General Electric, 350 Pa.Super. 183, 504 A.2d 306 (1986) (employer’s statement that employee was hired to work on a “long range project” held too vague and unspecified to overcome the at-will presumption); and Betts v. Stroehmann Bros., 355 Pa.Super. 195, 512 A.2d 1280 (1986) (employee’s understanding that employment was to be “long term” insufficient to overcome the at-will presumption). See also Rogers v. International Business Machines Corp., 500 F.Supp. 867 (W.D.Pa.1980); Moorhouse v. Boeing Company, 501 F.Supp. 390 (E.D.Pa. 1980); Green v. Medford Knitwear Mills, Inc., 408 F.Supp. 577 (E.D.Pa.1976).

Appellant also points to a portion of the employee handbook given to her when she commenced her employment, which she contends contained a “just cause” provision precluding the employer from discharging her at-will. The handbook contains a provision in the “Standards of Behavior and Conduct” section which states that violation of certain enumerated offenses “can result in immediate suspension or termination.” (Emphasis in original.) Included in the list are the following: “Fighting, horseplay, intoxication, gambling, and disorderly, immoral or unlawful conduct on Company property.”

We find no merit to the contention that the handbook contains either expressly or by clear implication a just cause provision. The status of the contractual enforceability of employee handbooks has recently been clarified in several appellate decisions. A handbook is enforceable against an employer if a reasonable person in the employee’s position would interpret its provisions as evidencing the employer’s intent to supplant the at-will rule. See Martin v. Capital Cities Media, Inc., 354 Pa.Super. 199, 511 A.2d 830 (1986); Reilly v. Stroehmann Bros. Co., 367 Pa.Super. 411, 532 A.2d 1212 (1987); DiBonaventura v. Consolidated Rail Corporation, 372 Pa.Super. 420, 539 A.2d 865 (1988). But See Richardson v. Charles Cole Memorial Hospital, 320 Pa.Super. 106, 466 A.2d 1084 (1983) and Muscarella v. Milton Shoe Manufacturing Company, Inc., 352 Pa.Super. 158, 507 A.2d 430 (1986), which found handbooks and personnel policies unenforceable due to the fact that they are not bargained for by the employee but are unilaterally distributed by the employer. The absence of a bargained-for exchange was deemed to preclude their enforceability. The more recent decisions, see Martin v. Capital Cities Media Inc., supra, et al., do not find the lack of a bargained-for exchange a bar to enforcing handbooks against employers. Since these decisions represent the most recent trend of our court in this evolving area, we will analyze the instant handbook by reference to the standard enunciated in them.

The instant handbook contains numerous provisions covering all manner of work-related information. The company’s history is detailed along with numerous statements of company policy. Compensation is discussed as are benefits, holidays, vacations, and health and safety rules. The handbook states that engaging in certain offenses “can” result in termination, suggesting that discretion is left to the employer as to whether the ultimate sanction of discharge should be applied in a given instance. This discretion is completely at odds with any notion that the provision in question should be read to mean that an employee could not be discharged except for objective just cause. We stated in Martin v. Capital Cities Media, Inc., supra 354 Pa.Super. at 214, 511 A.2d at 838:

The handbook in the instant case does not evidence an intent to convert the employees who received it into employees who could only be discharged for an objective “just cause.” The list of actions that call for disciplinary action set forth in the handbook, supra, are nothing more than common sense enumerations of actions that any reasonable at-will employee would understand to generally call for disciplinary action. The handbook is an aspirational statement by the employer listing actions that generally will not be tolerated; it serves an information function____
Appellant had been hired as an at-will employee. To now hold that the handbook allowed her discharge only for just cause would, in effect, convert her into an employee with a contract for an indefinite term who could be fired only for objective just cause. This would be a modification of immense proportions. For such an extreme modification of a preexisting contract, we would require a clear statement of an intent to so modify. We do not believe a reasonable person in the appellant’s position would have read this handbook provision as converting her from an at-will employee to an employee with an indefinite contract who could never be discharged without objective just cause____ The handbook provision [citing actions which represent cause for disciplinary action] uses very general language such as “dishonesty”, “insubordination”, “conduct which will reflect unfavorably on the Times Leader.” The reasonable employee would understand these terms to include the phrase ‘... in the judgment of the employer.’ The intent to overcome the at-will presumption must be stated with clarity.

This rationale is applicable instantly. The handbook does not contain a clear indication that the employer intended to overcome the at-will presumption. As in Martin, the actions which the handbook states “can” result in termination appear to be nothing more than common-sense enumerations of actions that any at-will employee would understand to call for disciplinary action. A reasonable employee would understand the provision in question to mean that the employer, in his subjective judgment, is free to decide whether a discharge would be appropriate. Appellant is entitled to no relief on the basis of this handbook provision. Appellant asserts, however, that the employer truly intended that those who satisfactorily completed the probationary period, as appellant did, would have “permanent” employment status which could not be terminated absent just cause.

This assertion is without merit. The employee handbook provision discussing the satisfactory completion of the probationary term (set forth in footnote one, supra), in no way suggests that once an employee achieves “permanent” status, she could never be fired except for objective just cause. To so hold would contravene the settled principle that great clarity is necessary to contract away the at-will presumption. Clay v. Advanced Computer Applications, 370 Pa.Super. 497, 536 A.2d 1375 (1988) (en banc); Martin v. Capital Cities Media, Inc., supra. We fail to see the requisite clarity in the probationary provision of the instant handbook. Appellant also argues that the written agreement whereby she gave the employer the rights to any inventions or improvements she might make or conceive and agreed not to divulge any of the employer’s secrets constitutes additional consideration sufficient to overcome the at-will presumption.

We disagree. Additional consideration has been described as follows:

Since at least 1946, Pennsylvania courts have recognized that even contracts for an indefinite duration can be brought out of the at-will presumption by a showing that the employee gave his employer additional consideration other than the services for which he was hired. See Lucacher v. Kerson, [158 Pa.Super. 437, 45 A.2d 245 (1946) ]. The term “consideration” is not used here as it is in the usual contractual context to signify a validation device. The term is used, rather, more as an interpretation device. When “sufficient additional consideration” is present, courts infer that the parties intended that the contract will not be terminable at-will. This inference may be nothing more than a legal fiction because it is possible that in a given case, the parties never truly contemplated how long the employment would last even though additional consideration is present. Even so, the at-will presumption would be overcome. On the other hand, if the parties specifically agreed that the employment would be at-will, even though additional consideration were present, we would expect a court to construe the contract according to the parties’ stated intention and hold it to be at-will.
Thus, 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. ‘If the circumstances are such that a termination of the relation by one party will result in great hardship or loss to the other, as they must have known it would when they made the contract, this is a factor of great weight in inducing a holding that the parties agreed upon a specific period.’ 3 A. Corbin, Corbin on Contracts § 684 (1960).

Darlington v. General Electric, supra 350 Pa.Super. at 201 and 202, 504 A.2d at 314 and 315.

When sufficient additional consideration is present, an employee should not be subject to discharge without just cause for a reasonable time____ 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.

Instantly, there is no indication that appellant brought any abilities to the job, aside from the services for which she was compensated, which were beneficial to her employer or that she sacrificed anything tangible pursuant to the agreement beyond that for which she was paid. The at-will presumption is not overcome every time a worker sacrifices theoretical rights and privileges. The present agreement was based on a mere possibility that appellant would conceive something of value. We have no indication that she did conceive anything of value during her employment, or that at the time she was hired it was reasonably likely she would. The privileges and rights which appellant sacrificed were so minimal that in no sense can we say the agreement rose to the level of “additional consideration” as our courts have defined it.

None of the factors cited by appellant, either individually or in combination, is sufficient to overcome the at-will presumption. Appellant cites Greene v. Oliver Realty, Inc., 363 Pa.Super. 534, 526 A.2d 1192 (1987), in support of her argument that the promise of permanent employment in combination with the handbook provisions, the successful completion of the probationary period, and the alleged additional consideration indicate that she and the employer truly intended that she have “permanent” employment. Greene does not compel this holding. In Greene, the plaintiff was hired as a plasterer in a Pittsburgh office building in 1959. At that time, he agreed to work for less than union scale in exchange for a contract of employment for life. In 1983, without warning, he was discharged. The plaintiff sued, alleging that his contract of life-time employment precluded his discharge. The trial court granted the employer’s motion for summary judgment. On appeal, we reversed, concluding that although a promise of life-time employment should not be enforced merely on the basis of the promise itself, such a promise should be enforced if the surrounding circumstances indicate that the parties truly intended to overcome the presumption of at-will employment or if there were additional consideration present. We left this determination for a jury.

By recognizing that the surrounding circumstances of the hiring should be examined to discern the terms of the employment relation, Greene merely reaffirmed Pennsylvania’s long-standing acceptance of the principle that the at-will presumption may be overcome by evidence of an implied in-fact contract. This theory of recovery was given a thorough exposition in Darlington v. General Electric, supra. There need not be additional consideration present to enforce a valid implied in-fact contract. Id. See also Veno v. Meredith, supra. Like additional consideration, the implied in-fact theory of recovery is an intention-discerning mechanism. A court will examine numerous factors surrounding the hiring to determine whether a reasonable person in the employee’s situation would understand that his employment status is at-will. We properly stated in Greene, which was not a decision of the court en banc, that we did not view our holding as changing the law, but noted that it was an attempt to summarize and synthesize existing principles of employment contract jurisprudence.

The instant case is clearly distinguishable. Appellant cites no evidence that in agreeing to work for Extracorporeal, she sacrificed anything nearly of the magnitude that the plaintiff in Greene bestowed on his employer. Unlike the plaintiff in Greene, appellant posits nothing beyond the naked assertion that she was promised “permanent” employment. As we have discussed, she fails to cite sufficient additional consideration or other surrounding circumstances which might lend validity to her claim. Likewise, the employee handbook given to her is insufficient to alter her at-will status.

We do not read Greene to stand for the proposition that any time a discharged employee talismanically recites that he was promised “permanent” employment, the case must automatically proceed to trial. It is elementary that the employee must first present averments which would raise a legally sufficient factual dispute. Recent decisions have held it proper in similar instances for the court to examine the factual averments and decide that the surrounding circumstances and additional consideration do not sufficiently manifest an intent to overcome the at-will presumption. See Darlington v. General Electric, supra; Ross v. Montour Railroad Co., supra; Betts v. Stroehmann Bros., supra; Veno v. Meredith, supra.

Whether a particular employment contract is terminable-at-will is a question of interpretation.

‘The question of interpretation of language and conduct — the question of what is the meaning that should be given by a court to the words of a contract, is a question of fact, not a question of law.’
‘We must bear in mind, however that this question of fact is like other questions of fact in this: it may be a question that should be answered by the judge rather than by the jury.
‘[Iff the evidence is so clear no reasonable man would determine the issue before the court in any way but one, the court will itself determine the issue.’
3 A. Corbin, Corbin on Contracts (1960). (Emphasis added.) If the evidence is ‘so clear ... a jury’s verdict to the contrary would be set aside.’ Id.

Darlington v. General Electric, supra 350 Pa.Super. at 195, 504 A.2d at 312. Interpreting the facts of the instant case in appellant’s favor, we find an insufficient factual basis upon which to remand this case for trial.

Scott next contends that her discharge violated a public policy which protects employees who exercise self-defense. She asserts that even if she struck Ms. Adaey during the disturbance, she acted in self-defense. The policy forbidding discharges of those acting in self-defense, she argues, is articulated in 18 Pa.C.S. § 505, which states in pertinent part:

The use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.

We find no merit to this assertion. The “wrongful discharge” cause of action had its Pennsylvania genesis in Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974). George Geary, a tubular products salesman for U.S. Steel, voiced misgivings to his superiors about the safety of a particular new product. Although the product was subsequently reevaluated and withdrawn due to his efforts, Geary was summarily discharged. He filed suit alleging wrongful discharge, and U.S. Steel’s demurrer was sustained. On appeal, our supreme court affirmed, concluding that “Geary had made a nuisance of himself,” and “[t]he praiseworthiness of Geary’s motives does not detract from the company’s legitimate interest in preserving its normal operational procedures from disruption.” Id. 456 Pa. at 180 and 183, 319 A.2d at 178 and 180. The court wrote: “It may be granted that there may be areas of an employee’s life in which his employer has no legitimate interest. An intrusion into one of these areas by virtue of the employer’s power of discharge might plausibly give rise to a cause of action, particularly where some recognized facet of public policy is threatened.” But, “when the complaint itself discloses a plausible and legitimate reason for terminating an at-will employment relationship and no clear mandate of public policy is violated thereby, an employee at will has no right of action against his employer for wrongful discharge.” Id. 456 Pa. at 184 and 185, 319 A.2d at 180.

Subsequent to Geary’s suggestion that certain discharged employees may successfully assert a “public policy” cause of action, our courts have consistently held that an employee may recover for a wrongful discharge cause of action if the discharge in some way contravenes public policy or is made with the specific intent to harm. However, if an important public policy is implicated, a discharged employee will not recover if the employer has a separate, plausible, and legitimate business reason for the firing. See e.g., Reuther v. Fowler & Williams, 255 Pa.Super. 25, 386 A.2d 119 (1978). There is some authority that a balancing test should be employed: “Some public policies are of greater importance than others. It follows that the more important the public policy implicated by the discharge, the harder will it be to assert a sufficient separate and legitimate business reason to justify the discharge.” Veno v. Meredith, 357 Pa.Super. 85, 104, 515 A.2d 571, 581 (1986).

The Geary court expressly declined to “define in comprehensive fashion the parameters” of the employer’s privilege to discharge at will. Since then, acting on a case-by-case basis, our courts have carved very narrow exceptions to the at-will rule. It is generally accepted that to be actionable, the asserted public policy must be one which is already articulated in law or a constitutional provision. See Darlington v. General Electric, supra. It is clear that discharges which are merely arbitrary do not contravene public policy. See Marsh v. Boyle, 366 Pa.Super. 1, 530 A.2d 491 (1987); Betts v. Stroehmann Bros., 355 Pa.Super. 195, 512 A.2d 1280 (1986).

Our state appellate courts have found a plausible wrongful discharge cause of action in only limited instances. In Reuther v. Fowler & Williams, 255 Pa.Super. 28, 386 A.2d 119 (1978), we held that a discharge motivated by an employee’s service of jury duty is improper. We noted that jury service is of “the highest importance to our judicial process,” but opined that even this public policy could be overcome by a separate, plausible and legitimate reason supporting it. In Hunter v. Port Authority of Allegheny County, 277 Pa.Super. 4, 419 A.2d 631 (1980), a public bus company refused to hire appellant (a situation we deemed similar to a discharge) due to his prior convictions for aggravated assault and battery, despite the fact that the Governor had granted him an unconditional pardon for the offenses. We reversed a demurrer in the bus company’s favor, holding that there was an important public policy in preventing the unwarranted stigmatization of, and unreasonable restrictions upon, former offenders. We found it significant that the employer was a government entity. Another example of a violation of a clear public policy is where a discharge is motivated by an employee’s refusal to take a polygraph test. Leibowitz v. H.A. Winston, 342 Pa.Super. 456, 493 A.2d 111 (1985).

In the instant case, appellant was discharged due to Extracorporeal’s belief that she was involved in a fight on company premises. This discharge lies beyond our power to remedy. Our courts generally hold that the discharge of an employee who is believed by the employer, broadly speaking, to be disruptive, is beyond the pale of judicial review. See Geary v. United States Steel, supra (no cause of action for employee discharged after bypassing usual channels to complain about a new product’s safety; the court found he had “made a nuisance of himself”); Rinehimer v. Luzerne Com. College, 372 Pa.Super. 420, 539 A.2d 1298 (1988) (college’s board of directors was free to fire president whose policies caused a “major upheaval” and “a great deal of internal unrest”); Martin v. Capital Cities Media, Inc., supra, (no cause of action for newspaper employee discharged after she placed an advertisement in a competing newspaper as employer had the right to fire one it deemed insubordinate and disruptive); Yaindl v. Ingersoll-Rand Co., 281 Pa.Super. 560, 422 A.2d 611 (1980) (no cause of action for fired employee who, among other things, displayed difficult and disruptive behavior); Turner v. Letterkenny Federal Credit Union, 351 Pa.Super. 51, 505 A.2d 259 (1985) (no cause of action for employee fired after he had experienced deteriorating relations with those under his supervision); and Rossi v. Pennsylvania State University, 340 Pa.Super. 39, 489 A.2d 828 (1985) (no cause of action for employee fired after continuously complaining to his supervisors about the financially wasteful manner in which his department was run; “troublesome” employee may be discharged at will).

Turning to the instant case, we find no public policy implicated by the discharge. Given the procedural posture of this case, we must believe that during the disturbance with Ms. Adaey, appellant either acted in self-defense or never landed a blow. Nevertheless, it is clear that the employer held her at least partially accountable for the disturbance. We may not deny the employer the right to dismiss due to its subjective evaluation that the employee behaved disruptively. Martin v. Capital Cities Media, Inc., 354 Pa.Super. 199, 511 A.2d 830 (1986); The moral fairness of the firing is simply beyond our power to review. See e.g., Gillespie v. St. Joseph University, 355 Pa.Super. 362, 513 A.2d 471 (1986); Darlington v. General Electric, supra. We surely do not condone discharges which are by any objective measure unfair; however, in the context of the facts of this case, the public policy asserted by appellant — the right to exercise self-defense — strikes entirely too near the employer’s legitimate interest in discharging employees it perceives to be disruptive. To reverse on this basis “would have the unwise effect of transferring to the judicial forum the duty of evaluating the propriety of management decisions.” Rossi v. Pennsylvania State University, supra 340 Pa.Super. at 54, 489 A.2d at 836. This we decline to allow.

Judgment affirmed.

      . The handbook states: "Prompt regular attendance, knowledge and performance of your job and working in a safe and efficient manner, while keeping your work area clean, are examples of the factors your supervisor will evaluate before approving you to become a permanent employee.” Handbook at II-3.

      . Marsh v. Boyle, 366 Pa.Super. 1, 3-7, 530 A.2d 491, 493-94 (1987), is also distinguishable. There, we wrote:
      Appellant left his employment as circulation manager of the Lewistown Sentinel to begin working at an increased salary for Appellees as publisher of the Clarion News. It was Appellant’s understanding that he would be working for a period of time along with the current publisher, who was about to retire. The date of the current publisher’s retirement was never established. Appellant was informed at the time of hiring that he would work in Clarion as publisher for ‘at least two years' and thereafter would become general manager in Oil City, a position Appellant desired because it would result in a pay increase and because Oil City was Appellant’s childhood home. Appellant placed his house in Lewistown for sale and relocated to Clarion to commence his employment on October 28, 1985. Appellant’s family remained in Lewistown and his home there was not sold prior to his dismissal at the Clarion News on January 29, 1986.
      In the case before us, the employer’s assurances that Appellant would be working as publisher "for at least two years” was not sufficiently definite to take the agreement out of the at-will employment presumption. Appellant, nevertheless, relies on the surrounding circumstances, particularly his resignation from his position with the Lewistown paper, his move to Clarion and his act of placing his house on the market as establishing sufficient consideration to rebut the at-will presumption. Appellant seeks to prove that the parties’ discussion as to the terms of his employment, when examined in light of these circumstances, created a contract which could not be terminated at-will but, rather, would continue for a reasonable length of time, or at least two years.
      We concluded that the issue was not one appropriately resolved by summary judgment. Again, the plaintiff in Marsh presented far more substantial evidence to rebut the at-will presumption than appellant presents instantly. Marsh noted that a promise of "permanent" employment standing alone will not overcome the at-will presumption.


text:
    545 A.2d 343
    AMICA MUTUAL INSURANCE COMPANY, v. DONEGAL MUTUAL INSURANCE COMPANY and as Interested Parties: Elizabeth Hagerty; Carol Applegate; Tracey Applegate Commonwealth of Pennsylvania, Dept. of Transportation; Peter Kweller, a Minor, by Mark Kweller His Guardian; Mark Kweller and Judy Kweller, His Wife; and Dr. Robert W. Hagerty Appeal of: Peter Kweller, a Minor, by Mark Kweller, His Guardian, Mark Kweller and Judy Kweller, His Wife, Appellant. AMICA MUTUAL INSURANCE COMPANY, Appellant, v. DONEGAL MUTUAL INSURANCE COMPANY and as Interested Parties Elizabeth Hagerty, Carol Applegate, Tracy Applegate Commonwealth of Pennsylvania Dept. of Transportation Peter Kweller a Minor by Mark Kweller, His Guardian Mark Kweller and Judy Kweller, His Wife and Dr. Robert W. Hagerty.
    Superior Court of Pennsylvania.
    Argued Feb. 11, 1988.
    Filed July 11, 1988.

      Patrick J. Reilly, Allentown, for appellants (at 2524).
    Michael E. Moyer, Assistant District Attorney, Allentown, for AMICA Mut., appellant (at 2564) and appellee (at 2524).
    Rick Long, Wyomissing, for Donegal, appellees (at 2524 and 2564)
    Before TAMILIA, HOFFMAN and HESTER, JJ.
   HESTER, Judge:

Arnica Insurance Company (appellant at No. 2564 Philadelphia 1987) and Peter Kweller, a minor by his parents Mark and Judy Kweller (appellants at No. 2524 Philadelphia 1987), filed these cross-appeals from an order entered pursuant to a declaratory judgment action, holding that appellee-Donegal Mutual Insurance Company is not responsible for coverage of Elizabeth Hagerty in connection with an automobile accident. We affirm.

On June 1,1984, eighteen year-old Elizabeth Hagerty was operating an automobile with two passengers in Lehigh Township, Northampton County, Pennsylvania, when an accident occurred causing the three to sustain injuries. One of the passengers, Peter Kweller, a minor, instituted suit through his parents, naming Elizabeth Hagerty as one of the defendants. This action is not presently before us. Appellee-Donegal Mutual Insurance Company (“Donegal”) which had issued a $500,000.00 liability policy to Elizabeth’s father, Dr. Robert Hagerty, refused to provide liability coverage for Elizabeth. Appellant-Amica Mutual Insurance Company (“Arnica”), which had issued a policy to Elizabeth’s mother, filed a declaratory judgment action against Donegal seeking to have the latter declared liable for coverage of the accident.

A non-jury hearing was held on January 21, 1987. The major issue was whether the Donegal policy provided coverage for Elizabeth. In pertinent part, the policy provided coverage for family members of the insured, Dr. Hagerty, who were residents of his household. On March 20,1987, a decree nisi and adjudication were entered by the court holding that Elizabeth was not a resident of Dr. Hagerty’s household at the time of the accident, June 1, 1984, but that she resided with her mother, Elizabeth Douglas. Therefore, Donegal had no duty to provide coverage. Appellants filed post-trial motions which were denied by the order of August 11, 1987. These timely cross-appeals followed.

In reviewing an adjudication in a non-jury proceeding, we must determine whether the trial court’s findings are supported by competent evidence and whether the trial court committed error in any application of the law. Brenna v. Nationwide Insurance Co., 294 Pa.Super. 564, 440 A.2d 609 (1982). Any ambiguity in insurance policy terms must be construed in favor of the insured. State Farm Insurance Co. v. Bullock, 316 Pa.Super. 475, 483, 463 A.2d 463 (1983); Krager v. Foremost Insurance Co., 304 Pa.Super. 390, 450 A.2d 736 (1982). If a court is to err in ascertaining the legislative intent behind the No-Fault Act in close, doubtful cases, it should do so in favoring of extending coverage. Steppling v. Pennsylvania Manufacturers Assoc. Ins. Co., 328 Pa.Super. 419, 477 A.2d 515 (1984).z

Elizabeth Hagerty was born in 1966. Her parents separated in 1972 and were divorced in 1974. From 1972 to February 28, 1982, Elizabeth was in the custody of her mother; they lived in Allentown, Pennsylvania. On February 28, 1982, Elizabeth went to live with her father, Dr. Robert Hagerty, in Bethlehem, Pennsylvania. During the time she lived with her father, Elizabeth continued to attend a high school near her mother in Allentown. Her father transported her to and from school daily. Elizabeth moved back with her mother for the school year of 1983 to 1984, her senior year in high school. Although Elizabeth stated that she would have preferred to remain with her father since she got along better with him, she moved back to her mother’s house due to its proximity to her high school. Elizabeth’s mother lived twelve blocks from the school while her father lived six to eight miles from it. Elizabeth’s involvement in extracurricular activities at school made it inconvenient for her to live with her father, as the travel time between his house and the school was approximately one-half hour under light traffic conditions.

During the 1983 to 1984 school year when she lived at her mother’s house, Elizabeth testified that she stayed overnight at her father’s house three to five times a month. Elizabeth’s father testified that she stayed overnight only twice during the entire school year. The trial court found that Elizabeth made “sporadic” visits to her father’s house, Trial Court opinion of 3/20/87, at 3, and that “she did not spend a substantial amount of time at her father’s house.” Trial Court opinion of 8/11/87, at 6. During that time, Elizabeth had a closet or two full of clothes at her father’s house, approximately forty pairs of shoes, books, cosmetics, stuffed animals, tennis equipment, and a pet rabbit. She received mail there as well.

At the time of the accident, June 1, 1984, Elizabeth was still residing at her mother’s house. Elizabeth planned to leave the state to attend college at the end of June; she intended to live with her father in the time between graduation and her departure. Following the accident, she stayed with her mother for two weeks, then moved to her father’s house. However, she stayed there only a short time as her injuries made moving about very difficult and the house had no bathroom on the floor where she slept. She moved back to her mother’s house and planned to stay there only until she. was physically able to move back with her father.

Dr. Hagerty did not list Elizabeth as a resident of his household in either his 1983 or 1984 tax returns. Elizabeth’s school records for the 1983-1984 school year listed her as a resident of her mother’s house.

In holding that Donegal is not responsible for providing coverage or defending Elizabeth with respect to the accident, the trial court reasoned, “The question of residency is not a question of intention, but rather a question of physical fact, and the court found it a physical fact that Elizabeth resided with her mother at the time of the accident and for at least ten months prior thereto.” Trial Court opinion 8/11/87, at 5.

Appellants-Kwellers argue that the trial court erred in holding that “residence” is a matter of physical fact and not intention.

We find no merit to this contention. In determining the meaning of the word “residence,” both its object and context must be kept in view. Robinson v. Robinson, 362 Pa. 554, 67 A.2d 273 (1949). Donegal argues that the policy language, providing coverage to family members of the insured who are residents of the insured’s household, evidences that the objective of the policy was to limit coverage to those family members who actually live in the same household as the insured. We find this persuasive. In Krager v. Foremost Insurance Co., 304 Pa.Super. 390, 450 A.2d 736 (1982), an insurance policy issued to plaintiffs’ mother provided coverage to relatives of the insured who were residents of her household. Plaintiff lived in his own mobile home from November to April of each year and with his mother from April to November. Plaintiff was involved in an automobile accident while living with his mother. We found that he was clearly a resident-relative of the insured and was, therefore, covered by his mother’s policy. We wrote:

The Courts of this Commonwealth have historically recognized the classical definitions of the words domicile and residence. Domicile being that place where a man has his true, fixed and permanent home and principal establishment, and to which whenever he is absent he has the intention of returning.
Residence being a factual place of abode. Living in a particular place, requiring only physical presence.
Though the two words may be used in the same context, the word resident as used in the policy, without additional words of refinement, i.e., permanent, legal, etc., would carry the more transitory meaning.
The appellant having written the contract, any ambiguity in its terms will be construed against it. Miller v. Prudential, 239 Pa. Superior Ct. 467, 362 A.2d 1017 (1976).

Id., 304 Pa.Superior Ct. at 393-394, 450 A.2d at 738.

See also Greenwood v. Hildebrand, 357 Pa.Super. 253, 515 A.2d 963 (1986); Laird v. Laird, 279 Pa.Super. 517, 421 A.2d 319 (1980).

Instantly, we find the common law definition of “resident” applicable to the policy language in question. The policy provides coverage for family members of the insured who are residents of his household. This language contains no words of refinement, such as “legal” or “permanent” which might suggest a less transitory meaning. Rather, we construe the language to limit coverage to those who actually reside in the household of the insured.

We find no error in the trial court’s determination that, as a matter of physical fact, Elizabeth resided at her mother’s house at the time of the accident. The evidence clearly shows that Elizabeth lived with her mother over the course of the school year up to and including the date of the accident. We see no reason to find erroneous the trial court’s finding that Elizabeth made only “sporadic” visits to her father’s house over the course of the ten months she lived with her mother and that she spent no significant time there. Moreover, we do not find erroneous the court’s holding that the personal items which Elizabeth kept at her father’s house at the time she lived with her mother were for convenience and did not evidence that she physically lived there.

Appellants cite Boswell v. South Carolina Insurance Co., 353 Pa.Super. 108, 509 A.2d 358 (1986), in support of their assertion that in determining residence status, it is the intention of the party, not his physical presence, which is determinative. In Boswell, plaintiff, who did not own a car, was injured in an automobile accident. Plaintiff’s son, a member of the U.S. Army stationed in Korea, did own a car, which was insured by the South Carolina Insurance Company. The policy provided coverage for relatives in residence in the same household as the insured. We held that plaintiff was covered as he was a relative in residence in the same household as the insured. In reaching this conclusion, we initially recognized the historic difference between residence and domicile. However, since the case arose under the No-Fault Act, we focused on the Act’s definition of “insured.” The Act, 40 P.S. § 1009.103, defines “insured” as follows:

(A) an individual identified by name as an insured in a contract of basic loss insurance complying with this act; and
(B) a spouse or other relative of a named insured, and a minor in the custody of a relative of a named insured if
(ii) in residence in the same household with a named insured.
An individual is in residence in the same household if he usually makes his home in the same family unit, even though he temporarily lives elsewhere.

Based on this, we concluded that the definition which the legislature conferred upon the term “residence” is closer in meaning to the common law definition of domicile than it is to residence. Applying the definition of “insured” under the Act to the facts of the case, we found no practical difference between the situation of the plaintiffs son, a member of the military stationed in Korea, and the portion of the Act providing coverage for students temporarily living away from home. We held that since the son’s true and permanent home was in the plaintiff’s household, the plaintiff was covered under the policy. Physical presence was not required by the Act; rather, the Act only required that the insurance claimant usually be in residence in the household.

Boswell is distinguishable as it involved a 'claim for No-Fault basic loss benefits. The instant case does not. Since the Act’s definition of “insured” is expressly applicable only for “an insured in a contract of basic loss benefits,” the No-Fault definition is not binding on the instant fact situation.

Moreover, even if we were to apply the rationale espoused in Boswell, we would find the instant case distinguishable. The No-Fault Act expressly made an exception for college students who usually make their home in the same family unit. Boswell extended this rationale to military personnel who, by the nature of their service, must reside away from their usual abode. The instant case is qualitatively different from both situations. Elizabeth lived with her mother for ten years until she moved to her father’s home in 1982. She stayed there for approximately one and one-half years. In 1983, Elizabeth and her parents agreed it would be beneficial for Elizabeth to again reside with her mother. We hardly think it equitable to regard Elizabeth’s move to her mother’s house as “temporary,” or to say that she “usually” made her home with her father. The trend of the previous twelve years suggest the opposite.

Appellants would have us render Elizabeth’s intention the sine qua non in determining her residency status. If intention were the test to determine residency status for purpose of interpreting the insurance language at issue herein, many children of divorced or separated parents could be said to “reside” in the home of one parent even though they actually live with the other. Therefore, as a practical matter, we refuse to regard Elizabeth’s move to her mother’s house as the equivalent of a move to an army barracks or a college dormitory. The filial bond calls for a qualitatively different analysis.

Appellants-Kwellers and Arnica also argue that Pennsylvania should adopt a test of dual residency whereby a child of divorced or separated parents could be held to reside with both. They contend that Elizabeth was a dual resident of both parents’ households, and therefore her father’s policy with appellee-Donegal covers the accident. Two Common Pleas court decisions are cited in support of this contention, as is Boswell, supra. We found Boswell distinguishable; we shall review the two trial court decisions.

In Miller v. U.S.F. & G, 28 Pa.D. & C.3d 389 (1983), sixteen year-old Charles R. Cullison was involved in an automobile accident on June 13, 1978. At the time, Charles’ parents were divorced and Charles primarily resided with his mother. Before the accident, his parents intended for Charles to move into his father’s home during the summer of 1978 and to remain there throughout the following school year. Prior to the summer of 1978, Charles visited his father and occasionally stayed overnight. Charles’ father carried an insurance policy with Selected Risks Insurance Company which provided coverage for any family member who resided with him. The court held that Charles was a resident of both his parents’ households; therefore, his father’s policy covered him.

Appellants also cite Nationwide Insurance Co. v. Frazier, 39 Pa.D. & C.3d 254 (1986). There, fifteen year-old Lynda Sue Frazier died as a result of injuries sustained in an automobile accident on May 1, 1984. At the time of the accident, her parents had been separated for more than two years. Her father’s insurance policy provided coverage for himself and any family member who resided in his household, including a ward or foster child. Although Lynda Sue was in her mother’s custody at the time of the accident, the court found that the child spent approximately five days per week during the winter and two to three days per week in the summer at her father’s house. She had her own room at both houses and kept cosmetics at both. Moreover, she kept her ten-speed bicycle at her father’s house and her father claimed her as a dependent for tax purposes. The court opined, at 264-265:

Nationwide in this case had the opportunity to clearly define the term ‘resident of your household,’ but failed to do so.
The concept of children necessarily belonging to one household has long since passed in our society and our law. The insurance policy itself in this case recognized that a child may be [sic] foster child in the home of the insured and, therefore, afforded coverage.

Neither Miller, supra, nor Frazier, supra, supports the holding appellants would have us reach instantly. Although no Pennsylvania appellate decision has yet decided the issue, we do not disagree that a child of separated or divorced parents may be regarded as a resident of the household of both parents. Such a holding would seem appropriate where, as in Frazier, supra, the child divides his time between the two. Miller, supra, is less compelling. There, the court noted that the child visited his father and “occasionally” stayed overnight. It is not clear whether the child spent significant amounts of time at his father’s house. Since resident status is a question of physical fact, as the Miller court conceded, the child’s intention in Miller to live at his father’s home in the future is not a relevant consideration. The fact that a child’s parents live in separate households should not automatically render him a resident of both if, as a matter of physical fact, he lives at one and spends no significant time at the other. As such, the Miller decision is not helpful to the question before us.

In the instant case, we find no error in the trial court’s determination that Elizabeth was not a resident of both households. During the school year of 1983 to 1984, she did not spend a “significant and scheduled amount of time at her father’s home.” Trial court opinion, 8/11/87, at 6. This is borne out by Dr. Hagerty’s testimony that Elizabeth stayed overnight only twice during that entire school year. The fact that Elizabeth kept numerous personal items at her father’s house does not compel a conclusion that she resided there as a matter of physical fact. Rather, it lends support to the conclusion that she had lived there and that she intended to live there again. These considerations, however, are not pertinent to the present issue.

Appellants-Kweller and Arnica also argue that Done-gal should be held liable to provide coverage due to the fact that the Donegal policy as well as Dr. Hagerty’s application for insurance list Elizabeth as an “operator,” which is defined as a “resident in the named insured’s household and other principal operators if not resident of the same household.” The application indicates that Elizabeth would drive a 1979 Oldsmobile ten percent of the time and a 1968 Oldsmobile ninety percent of the time.

We find no merit to this averment. At the time of the accident, Elizabeth was not driving one of the automobiles listed as covered by the Donegal policy. She was driving a car which did not belong to her father. Appellants point to nothing in the policy, nor are we aware of any provision, which suggests that Donegal should provide coverage for a named operator, other than a resident of the insured’s household, who was not driving one of the automobiles which she was listed as covered to drive.

Order affirmed.

      . In Dr. Hagerty’s policy, "Covered person” is defined as, "You or any family member. And "family member’ means a person related to you by blood, marriage or adoption who is a resident of your household. This includes a ward or foster child."

      . Appellant-Arnica does not dispute, and appellants-Kwellers concede, that it is the liability portion of the policy which is at issue, not the basic loss section. Dr. Hagerty’s policy provided $500,000. worth of liability coverage, which appears separate from the basic loss coverage in the policy. The definition of "insured” under the Act, which Boswell interpreted, refers to "an individual identified by name as an insured in a contract of basic loss insurance ...” Thus, the Act’s definition of "insured” and “residence” does not apply to the instant case. The Boswell decision involved a specific statutory provision and the legislative intent in enacting it. Since the common law definition of "residence," as described in Kroger, supra, has not been altered, it is appropriate to construe the instant policy’s definition in accord with the common law definition.

      . Appellants cite two cases involving the Juvenile Act, In re G.B., 366 Pa.Super. 9, 530 A.2d 496 (1987), and In Interest of J.S.M., 356 Pa.Super. 360, 514 A.2d 899 (1986), for the proposition that "residence” should be defined as, "Personal presence at some place of abode with no present intention of definite and early removal and with purpose to remain for undetermined period, not infrequently, but not necessarily combined with design to stay permanently.” This definition appears to be closer to our definition of "domicile" than "residence.” As such, it is not consistent with our decision in Krager, supra. Moreover, if we were to apply this definition to the instant case, we would find that Elizabeth is not a resident of either household. She did not intend to stay at her mother’s house, and she had no "personal presence” at her father’s house, thus disqualifying her from residency at either. As such, these cases do not aid appellants’ contention.


author: WIEAND, Judge:

text:
    545 A.2d 349
    COMMONWEALTH of Pennsylvania v. Bruce JOHNSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 21, 1988.
    Filed July 29, 1988.

      Bruce A. Franzel, Philadelphia, for appellant.
    Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before WIEAND, MONTGOMERY and HESTER, JJ.
   WIEAND, Judge:

Bruce Johnson was tried nonjury and was found guilty of driving while under the influence of alcohol, homicide by vehicle while driving under the influence of alcohol, simple assault, and recklessly endangering another person. Timely filed post-verdict motions were denied, and appellant was sentenced to a term of imprisonment of not less than three (3) years nor more than six (6) years for homicide by vehicle, to run concurrently with a term of imprisonment of not less than three (3) months nor more than six (6) months, plus a fine of $300, for driving while under the influence of alcohol.

On direct appeal from the judgment of sentence, Johnson argues that the evidence was insufficient to sustain the trial court’s finding. The evidence was insufficient, he argues, because (1) the Commonwealth failed to establish that he was under the influence of alcohol, (2) the evidence failed to establish that he was incapable of safe driving or that his ingestion of alcohol was causally connected with the accident, and (3) the Commonwealth failed to show that he had been convicted of driving while under the influence of alcohol before he was tried and convicted of homicide by vehicle while under the influence of alcohol. He also contends that driving while under the influence of alcohol merged with the conviction for homicide by vehicle while under the influence of alcohol for sentencing purposes and that separate sentences imposed by the trial court, therefore, were illegal. We find no merit in these arguments and affirm the judgment of sentence.

On appeal, our standard for evaluating a challenge to the sufficiency of the evidence involves several steps:

First, we accept as true all the evidence upon which the finder of fact could properly have reached its verdict. Next we give the Commonwealth the benefit of all reasonable inferences arising from that evidence. And finally, we ask whether the evidence, and the inferences arising from it, are sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted. This inquiry is bounded by two poles. On the one hand, the Commonwealth does not have to establish guilt to a mathematical certainty and may in a proper case rely wholly on circumstantial evidence. On the other hand, guilt must be proved; mere conjecture or surmise is not sufficient.

Commonwealth v. Maldonado, 343 Pa.Super. 154, 158, 494 A.2d 402, 404 (1985), quoting Commonwealth v. Herman, 271 Pa.Super. 145, 148-149, 412 A.2d 617, 619 (1979). The evidence must be sufficient to insure that the verdict is not based on guess, conjecture or surmise. However, the weight to be given the evidence and issues of witness credibility are for the trier of fact, who is free to believe all, part, or none of the evidence presented. Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986); Commonwealth v. Harper, 485 Pa. 572, 576-577, 403 A.2d 536, 539 (1979).

The offense of driving while under the influence of alcohol is defined as follows:

A person shall not drive, operate or be in actual physical control of the movement of any vehicle while:
(1) under the influence of alcohol to a degree which renders the person incapable of safe driving; ...

75 Pa.C.S. § 3731(a)(1).

The offense of homicide by vehicle while under the influence of alcohol is defined as follows:

Any person who unintentionally causes the death of another person as the direct result of a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) and who is convicted of violating section 3731 is guilty of a felony of the third degree when the violation is the cause of death and the sentencing court shall order the person to serve a minimum term of imprisonment of not less than three years.

75 Pa.C.S. § 3735(a).

The evidence showed that on February 19, 1985, at approximately 3:50 p.m., appellant, an employee of the Philadelphia Water Department, was driving a white truck west on Church Street in Philadelphia. When he approached the intersection of Church Street and Torresdale Avenue, he went through a red light and struck a smaller, red truck being driven by Kenneth Larry Walker. Appellant’s truck continued to move after the impact. It mounted the curb, struck a pedestrian who had been walking on the sidewalk, and crushed her against the wall of a building. The pedestrian died of injuries received in the accident. Appellant’s speed as he entered the intersection was estimated by eyewitnesses to be forty or forty-five miles per hour.

Following the accident, appellant was observed by police officers who had been summoned to the accident scene. Officer Lawrence Clifford testified that appellant had been staggering, that his speech had been “slow and slurring,” and that he had smelled of alcohol. Officer John Quigley and Sgt. Theodore Boone testified that appellant had been staggering and wobbly, that his eyes were bloodshot and watery, and that there was alcohol on appellant’s breath. Quigley also said that appellant’s speech was thick-tongued. Appellant was placed under arrest at the scene and was then transported to a hospital for treatment of injuries. An examination of appellant’s truck disclosed eleven empty pint bottles of Thunderbird, one empty white wine bottle, five empty vodka bottles, one empty malt liquor bottle, an empty beer can, and a bottle of Wild Irish Rose wine, one-fourth of which had been consumed.

A sample of appellant’s blood, taken at 4:43 p.m. (approximately fifty-three minutes after the accident), disclosed a blood alcohol level of .15%. A breathalyzer test, performed at 7:30 p.m. (approximately four hours after the accident), resulted in a blood alcohol reading of .06%. At trial, Guy V. Purnell, Chief Toxicologist and Director of Laboratory, Office of the Medical Director, was called by the Commonwealth and testified to average alcohol absorption and metabolic rates. He conceded that he could not state with medical certainty what appellant’s blood alcohol level was fifty-three minutes before removal of the blood sample.

Appellant’s argument that the evidence was insufficient to show that he was under the influence of alcohol is based upon the fact that the investigating police officers were not asked and did not testify that, in their opinions, he was under the influence of alcohol. Nevertheless, they did testify that appellant smelled of alcohol, that his speech was slurred, that his eyes were bloodshot and watery, and that his motor coordination appeared to be impaired. Appellant counters that these symptoms were equally consistent with the injuries which he had received in the accident. In addition to this evidence, however, the surrounding circumstances must be considered. These include the fact that he had entered the intersection, at a high rate of speed, in violation of a traffic light which had turned red before his arrival at the intersection. There were also blood and breathalyzer test results which could be considered. The blood sample, which had been withdrawn only fifty-three minutes after the accident, revealed a blood alcohol content of .15%. From this fact alone an inference could be drawn that appellant was under the influence of alcohol at the time of the accident. In Commonwealth v. Gamber, 352 Pa.Super. 36, 506 A.2d 1324 (1986), “evidence was introduced that appellant had a 0.14% blood alcohol level forty-seven minutes after he was initially observed.” Id., 352 Pa.Superior Ct. at 45, 506 A.2d at 1329. This was sufficient, the Court held, to sustain a finding of guilt. See also: Commonwealth v. Arizini, 277 Pa.Super. 27, 419 A.2d 643 (1980). Cf. Commonwealth v. Slingerland, 358 Pa.Super. 531, 518 A.2d 266 (1986); Commonwealth v. Speights, 353 Pa.Super. 258, 509 A.2d 1263 (1986), appeal denied, 517 Pa. 594, 535 A.2d 83 (1987).

Appellant directs our attention to the statement made by the trial court that it would not consider the 0.15% blood alcohol reading because the Commonwealth’s toxicologist could not state with medical certainty the level of appellant’s blood alcohol at the time of the accident. In Commonwealth v. Boyd, 373 Pa.Super. 298, 541 A.2d 21 (1988), this Court held that “the Commonwealth is not required to offer evidence relating a blood alcohol test back to the time of a vehicular offense and that the absence of expert testimony relating back a remote test result would not render the test result insufficient to convict a defendant of [driving under the influence of alcohol].” Id., 373 Pa.Superior Ct. at 301, 541 A.2d at 22. See also: Commonwealth v. Slingerland, supra; Commonwealth v. Speights, supra. The record in this case discloses unequivocally that the result of the blood test was competent evidence and was received by the trial court. The issue before this reviewing court is merely whether the record contains sufficient evidence to support the trial court’s finding of guilt.

After a careful review of the evidence received by the trial court, we conclude that the totality of the evidence was sufficient to support the trial court’s finding that appellant was under the influence of alcohol at the time of the accident. See: Commonwealth v. Gamber, supra; Commonwealth v. Richardson, 307 Pa.Super. 191, 452 A.2d 1379 (1982) (evidence of defendant’s erratic driving, strong odor of alcohol on defendant’s breath, and seven empty beer bottles in defendant’s vehicle sufficient to sustain conviction); Commonwealth v. Arizini, supra (evidence that defendant lost control of vehicle, had odor of alcohol on breath and beer bottles in car, in addition to blood alcohol of .275% two and one-half hours later was sufficient to sustain conviction even though police did not express opinion that defendant was under influence of alcohol).

Appellant argues also that the evidence was insufficient to prove that driving while under the influence of alcohol was the legal cause of the victim’s death. Because people who are not under the influence of alcohol regularly commit motor vehicle violations, he suggests, it cannot be said that his consumption of alcohol was a cause of the accident. We reject this argument. The evidence, as we have observed, was sufficient to show that appellant was under the influence of alcohol so as to be incapable of safe driving at the time of the accident. The evidence also showed that appellant was involved in a fatal accident under circumstances demonstrating that he was at fault in causing the same. These circumstances were sufficient to permit a finding that appellant’s violation of the proscription against driving while under the influence of alcohol was a legal cause of the accident. Whether the fatality would not have occurred but for appellant’s being under the influence of alcohol was, under the circumstances, a question for the trier of the facts. Commonwealth v. Hicks, 466 Pa. 499, 504, 353 A.2d 803, 805 (1976).

Appellant also contends that his collision with another truck after he had violated the stop light and the movement of the vehicles thereafter were intervening causes which attenuated the causal connection between his driving while under the influence of alcohol and the ensuing fatality. There is no merit in this argument. We rejected a similar argument in Commonwealth v. Kostra, 349 Pa.Super. 89, 502 A.2d 1287 (1985), where we said:

It is correct, as appellant argues, that the Commonwealth must prove beyond a reasonable doubt each and every element of the offense, including a causal connection between death and the wrongful act. See: Commonwealth v. Floyd, 499 Pa. 316, 317, 453 A.2d 326, 327 (1982); Commonwealth v. Green, 477 Pa. 170, 174, 383 A.2d 877, 879 (1978). The Commonwealth must prove “beyond a reasonable doubt that [the] death occurred as a result of injuries received in the incident or of a chain of events stemming from the incident.” Commonwealth v. Baker, 299 Pa.Super. 241, 247, 445 A.2d 544, 547 (1982). Causation is an issue of fact for the jury. Commonwealth v. Hicks, [supra 466 Pa. at 504, 353 A.2d at 805.] “A defendant’s actions are the legal cause of death if they are a direct and substantial factor in bringing it about.” Commonwealth v. Paquette, 451 Pa. 250, 254, 301 A.2d 837, 839 (1973). “So long as a defendant’s actions are a direct and substantial factor in bringing about death, legal responsibility may be found.” Commonwealth v. Matthews, 480 Pa. 33, 37, 389 A.2d 71, 73 (1978). A defendant cannot escape legal liability for homicide if his act starts an unbroken chain of causation which leads to death. See: Commonwealth v. Robinson, 468 Pa. 575, 584, 364 A.2d 665, 670 (1976); Commonwealth v. Stafford, 451 Pa. 95, 100, 301 A.2d 600, 604 (1973).

Id., 349 Pa.Superior Ct. at 93-94, 502 A.2d at 1289.

Appellant’s final argument regarding the alleged insufficiency of the evidence is novel. He contends that an element of the offense of homicide by vehicle while under the influence of alcohol entails a prior conviction for driving while under the influence of alcohol. This is based on the wording of the statute that one may be convicted of violating 75 Pa.C.S. § 3735(a) only if he has been convicted of violating section 3731. An existing conviction, he argues, must be proved by the Commonwealth as part of its case against a defendant. Therefore, he contends, there must be a conviction before the charge of violating section 3735(a) is submitted to the jury. We reject this argument.

Strict construction of a penal statute does not require that the words of the statute be given their narrowest meaning. Nor does it mean that the clear intent of the legislature is to be ignored by such a construction. To construe the statute as appellant would have us do would require separate trials for driving while under the influence of alcohol and homicide by vehicle while under the influence of alcohol. Such a construction, however, would run afoul of the teaching of Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973) and the mandates of 18 Pa.C.S. §§ 109 and 110. Therefore, we do not interpret 75 Pa.C.S. § 3735(a) to require separate trials. It is enough that charges of violating 75 Pa.C.S. § 3731 and 75 Pa.C.S. § 3735 be submitted to the same factfinder. The statute requires only that there can be no conviction for homicide by vehicle while under the influence of alcohol in violation of 75 Pa.C.S. § 3735(a) unless there is also a conviction of driving while under the influence of alcohol in violation of 75 Pa.C.S. § 3731.

Appellant’s final contention is that his sentence for driving while under the influence of alcohol is illegal because it should have merged for sentencing purposes in his conviction for homicide by vehicle while under the influence of alcohol. This issue was before the Supreme Court in Commonwealth v. McCane, 517 Pa. 489, 539 A.2d 340 (1988). The Court said:

[T]he two separate and distinct crimes of driving under the influence, and homicide by vehicle while driving under the influence, seek to protect two different interests. Driving under the influence is a victimless crime which aims to keep our roads and highways clear of the risks and dangers posed by intoxicated drivers. Homicide by vehicle while driving under the influence is a crime with a specific victim or victims which seeks to protect the distinct and particular life interest of such victims. See Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986). (The doctrine of lesser included offenses does not prohibit the conviction and sentence for both rape and statutory rape arising from a single act of sexual intercourse.) Also see Commonwealth v. Sayko, 511 Pa. 610, 515 A.2d 894 (1986).

Id., 517 Pa. at 499, 539 A.2d at 345. Because appellant injured separate interests of the Commonwealth, as protected by separate statutory proscriptions, his convictions did not merge for purposes of sentencing.

The judgment of sentence of the trial court is affirmed.

      . Charges of murder and voluntary manslaughter were nolle prossed by the Commonwealth, and the court found appellant not guilty of involuntary manslaughter and aggravated assault.