author: TAMILIA, Judge:

text:
    593 A.2d 886
    Sharon C. SEAWALT v. Robert S. MULDOON, Appellant.
    Superior Court of Pennsylvania.
    Argued May 23, 1991.
    Filed July 1, 1991.

      Terry Despoy, Altoona, for appellant.
    Charles P. Wasovich, Altoona, for appellee.
    Before TAMILIA, POPOVICH and MONTGOMERY, JJ.
   TAMILIA, Judge:

This is an appeal from the October 4, 1990, Order of the trial court which confirmed the recommendation of a hearing officer fixing a child support amount of $225 per month for two minor children.

On February 7, 1990, appellee, Sharon Seawalt (mother), filed a complaint for support for the parties’ two minor children. As part of their earlier divorce settlement agreement, the parties entered into a shared custody arrangement wherein appellant, Robert Muldoon (father), has the children four nights per week and appellee the remaining three nights. At the time of the hearing before the trial court, both parties were employed, mother as a real estate agent, and father with State Farm Insurance Company. For purposes of computing support payments, the trial court found mother’s net income to be $1,400 per month and father’s net income to be $2,200 per month. The hearing officer used the Pennsylvania Supreme Court Guidelines, Pa.R.C.P. 1910.16-1 to 1910.16-5, in arriving at a figure of $225 per month for support, which was adopted by the trial court.

Appellant argues the trial court erred in not properly considering the existing custody arrangement when it ordered support. While the parties share custody equally, it is agreed appellant’s house is the children’s primary residence and, therefore, appellant incurs more of the expenses involved in raising the children. Appellant also argues the trial court erred by not considering the Melzer factors on the record. Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984). Specifically, he argues the trial court did not consider the ability of the parties to pay, given the available assets and income of the remarried appellee, and also did not consider the direct support being paid by appellant in the form of medical insurance, life insurance, dental expenses, etc.

Our standard of review for awards of child support is abuse of discretion. Lesko v. Lesko, 392 Pa.Super. 240, 572 A.2d 780 (1990). To warrant a finding that the trial court abused its discretion in fashioning a child support award, a finding of more than mere error of judgment is required; discretion is abused only if a law is overridden or misapplied or the judgment exercised is manifestly unreasonable. Id., 392 Pa.Superior Ct. at 243, 572 A.2d at 782; see Funk v. Funk, 376 Pa.Super. 76, 545 A.2d 326 (1988). Our careful review of the record reveals there was no abuse of discretion by the trial court.

Appellant contends the trial court did not properly consider the custody arrangement when it entered the Order. A review of the record indicates the trial judge did take into account those variations in child care expenses unique to the shared custody situation in his analysis of the parties’ respective financial situations. The court considered and correctly applied the Pennsylvania support guidelines promulgated in 23 Pa.C.S. § 4322. As noted in the “Certification for Domestic Court” of September 4, 1990 (Record # 5), father’s net monthly income was $2,237, and mother’s was $783. Rounding these figures to the nearest $100 increment, and applying the support guidelines (Pa.R.C.P. 1910.-16-2), the monthly support figure in a traditional custodial situation would be $572. The court, however, ascribed to appellee a monthly income of $1,400, which reduced the gridline figure to $526 per month. Further, appellant was given full credit for various fixed expenses and for one-half of a voluntary savings plan on behalf of the children, which lowered the support award to $225 per month.

Thus the trial judge fashioned his award of support by taking into account both the shared custody arrangement and the fixed expenses of the appellant regarding the children and by giving appellant credit for a savings plan for the children. The court noted and we agree that the unique circumstances of this case were not suitable to a blind application of the support guidelines.

Appellant next argues the trial court failed to follow the mandate of Melzer, supra, which requires the court, on the record, to first determine the needs of the children and then determine the respective abilities of the parents to support them.

In Horst v. Horst, 406 Pa.Super. 188, 593 A.2d 1299 (1990) , we held “[i]t is irrelevant whether the determination of child support is made by virtue of the guidelines, pursuant to the Melzer formula, or by agreement of the parties.” Id., 406 Pa.Superior Ct. at 191, 593 A.2d at 1300 (citation omitted). In another recent Opinion dealing with support, Marshall v. Marshall, 404 Pa.Super. 628, 591 A.2d 1060 (1991) , we stressed that the calculation of support, whether by the guidelines or the Melzer formula, rests upon consideration of the following three factors: the needs of the child, the ability of the obligor to pay and the characteristics of the individual family which would otherwise make the guidelines unworkable. Id.

In Marshall, supra, the wife argued the trial court failed to consider Melzer in making the disposition. In facing the issue of whether Melzer must be applied separately, in conjunction with the guidelines, or not at all, we held “[ejither the formula or the guidelines provided by the rules may be used to calculate support.” Id., 404 Pa.Superior Ct. at 637, 591 A.2d at 1065. See also Funk, supra, wherein the court stated:

We recognize that the child rearing expenses in a shared custody setting vary from those in a sole custody setting, and, consequently, the formula for shared custody support determinations will not be identical to that envisioned in Melzer.

Id., 376 Pa.Superior Ct. at 81, 545 A.2d at 329. The mandatory application of Melzer is no more required than the application of the guidelines, which are a starting point, but both must meet the test of reasonableness. Id. We further held “[w]hen the guidelines are utilized, objection is made and it is factually established they fail to produce a result which is within a reasonable range of what Melzer would have produced, then the guidelines will not prevail.” Marshall, supra, 404 Pa.Superior Ct. at 639, 591 A.2d at 1066. We cannot say that failure to apply Melzer was error because the use of Melzer in this case would not bring about a substantially different result.

Melzer requires the court to consider the needs of the children and the respective abilities of the parents to support the children. Here, the trial court not only considered the respective earning capacities of the parties, but, in fact, attributed to appellee an earning capacity roughly double that found by the Domestic Relations Office. Appellant argues the court did not specifically consider the children’s reasonable living expenses. We agree with appellee that such an argument loses persuasiveness when the appellant is given full credit for all expenses which he claims to be paying, plus an additional credit for a voluntary savings plan. In this context, the court found as a fact that all such expenses were reasonable. Comments to Rule 1910.16-1, Amount of Support, Support Guidelines, provide:

3. Allowable Deviations. The guidelines are designed to treat similarly situated parents, spouses, and children in the same manner. Where there are unavoidable differences, deviations must be made from the guidelines. The guidelines are intended to serve only as a starting point when the parties have special needs and obligations.
The failure to deviate from these guidelines by considering a party’s actual expenditures where there are special needs and special circumstances constitutes a misapplication of the guidelines. For the guidelines to operate in the manner in which they are designed, recognition must be given as required by the statute to
(a) unusual or special needs of the parties and their children;
(b) extraordinary expenses such as those necessary to meet unusual and unavoidable obligations; and
(e) other factors “as warrant special attention” such as third party contributions, separate property and other circumstances that increase or decrease a party’s ability to pay support.

While father alleges the failure to apply Melzer is error, as we pointed out in Marshall, it is reversible error only when it appears the method utilized by the trial court would not withstand scrutiny under the guidelines or Melzer. “When the guidelines are utilized, objection is made and it is factually established they fail to produce a result which is within reasonable range of what Melzer would have produced, then the guidelines will not prevail.” Id., 404 Pa.Superi- or Ct. at 639, 591 A.2d at 1066. We restate this holding to point out how critically necessary it is to our review that these matters be raised and factually established in the trial court if we are to effectively consider such an issue. In this case, the record is 26 pages of testimony consisting of dialogue between the court and the attorneys and a statement by appellant. Nothing forwarded to this Court establishes the actual cost of maintaining the children or the amount incurred by either parent in meeting their needs. In the domestic relations office, it appears no attempt was made to establish these expenses and appellant was told the guidelines would be applied based on the respective income of the parties, with leeway in the counseling process to deviate only ten per cent either side of the guideline amount. Certification to the court resulted to allow a more reasonable application of the guidelines.

This case illustrates what is increasingly occurring in support matters. The guidelines have de facto taken the place of Melzer and other methods of establishing support Orders. Marshall addresses this problem. Through failure to establish the factual basis for allegations of failure to conform to Melzer, on appeal we must assume that the guidelines control when they have been properly applied. Using the guideline “chart of proportional expenditures,” Rule 1910.16-3(b), for combined income level between $3,364-4,000, for two children, the percentage given is 23.9 per cent. Applying this amount as the presumed need of the children, as the record has established this as the basis for calculating support without objection by the parties, the amount of support which would be applicable in a Melzer calculation is $860.40. Melzer would then be applied in the following fashion:

1400
Mother’s share _x 860.40 = $334.59
1400 + 2200
2200
Father’s share _x 860.40 = $611.00
1400 + 2200

The mother’s contribution is not in dispute. Allowing contributions in kind for the father ($250) reduces his share to $361. Allowing an additional reduction of $50 for the children’s savings plan equals $311. Therefore, using the Melzer formula, based on the available figures regarding need and income, father would be required to pay $311 per month. Here, using the guidelines, the father is required to pay only $225 per month. The mother initially requested $200 per month plus $25 on arrears. The court allowed her $225 plus an additional $25 to be applied to reduction of arrears for a total of $250. Therefore, we believe father has no basis for alleging error because of failure to apply Melzer.

In light of the foregoing discussion, the Order of the trial court must be affirmed.

Order affirmed.

      . In Riess v. DeLuca, 353 Pa.Super. 622, 510 A.2d 1239 (1986), this Court stated ”[t]he total support obligations may be offset only by such voluntary expenditures as actually satisfy the obligation of reasonable and necessary support.” See Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984). In this respect, the father was given credit beyond what was required.


source: Caselaw Access Project

author:
      OLSZEWSKI, Judge:
      WIEAND, Judge,

license: Public Domain

text:
    593 A.2d 890
    Francine NORMANN, Executrix of the Estate of James Normann, Deceased v. JOHNS-MANVILLE CORP.; Pacor, Inc.; Eagle Picher Industries; Unarco Industries, Inc.; Keene Corporation; Raybestos-Manhattan, Inc.; Celotex Corporation; Southern Textile Company; J.P. Stevens Company; Garlock, Inc.; Owens-Illinois Glass Company; Fibreboard Corporation; and GAF Corporation. Appeal of OWENS-ILLINOIS GLASS COMPANY.
    Superior Court of Pennsylvania.
    Argued April 3, 1991.
    Filed July 1, 1991.

      David A. Cohen, New Jersey, for appellant.
    Steven J. Cooperstein, Philadelphia, for Francine Normann, appellee.
    Before WIEAND, OLSZEWSKI and BROSKY, JJ.
   OLSZEWSKI, Judge:

This is an appeal from a judgment entered in the Court of Common Pleas of Philadelphia County following its order denying appellant’s (hereinafter Owens-Illinois) post-trial motion requesting a new trial. The issues presented on this appeal are: (1) whether the trial court erred, as a matter of law, in determining that Pennsylvania substantive law would apply to the liability determination of this products liability case and; (2) whether the choice of law issue was properly preserved for appellate review. We hold that such issue is properly before us and that the trial court erred in determining that Pennsylvania law controls the liability determination with respect to Owens-Illinois.

The facts from which this appeal arose are as follows: Decedent, James Normann, a then-resident of New York, was employed as a coppersmith and mechanical engineer at a Navy shipyard in Brooklyn, New York, from 1941 until 1965, when the shipyard was closed. (Deposition of James Normann, August 25, 1983, at p. 10; N.T. at 27.) In 1965, decedent was transferred to the Philadelphia Naval Shipyard in Pennsylvania and continued in its employ until his retirement in 1976. (Normann dep. at 9-11.) During this period, and until his death in 1984, decedent was a resident and citizen of New Jersey. The record indicates that decedent was exposed to asbestos-containing products during both his employment in New York and Pennsylvania. (Normann dep. at 19-24.) Most critical to our determination, however, is the fact that Owens-Illinois ceased the manufacture of asbestos-containing products in 1958, when it sold its entire thermal insulation business. {See affidavit of Arthur H. Smith, Assistant Secretary of Owens-Illinois, Inc. [formerly known as Owens-Illinois Glass Company].) Accordingly, as the decedent was not employed in Pennsylvania until 1965, he was not exposed to asbestos-containing products manufactured by Owens-Illinois in Pennsylvania, such exposure being limited to portions of the time he worked in New York.

In 1982, decedent was diagnosed as suffering from mesothelioma, a cancer believed to be caused by asbestos exposure. Decedent succumbed to the cancer in 1984. Appellee, Francine Normann, executrix of the Estate of James Normann, sought compensatory damages for decedent’s asbestos-related injuries and damages for her own loss of consortium from various asbestos manufacturers, including Owens-Illinois. A reverse bifurcated trial resulted in a jury award for appellee in the amount of $1,000,000 compensatory damages and $500,000 for loss of consortium. Prior to the liability stage of the trial, Owens-Illinois remained the sole, unsettled, solvent defendant. After the trial judge declared that Pennsylvania law would be applied to the liability phase of the trial, Owens-Illinois and appellee stipulated, with court approval, that it would assume a one-tenth share of the total verdict, without prejudice to its rights to file post-trial motions or its appellate rights. (Trial transcript at 3-5.) In its post-trial motions, Owens-Illinois argued, inter alia, for the application of New York law to the present case. The trial judge held that Owens-Illinois had waived the choice of law issue by electing to stipulate to its own liability and denied Owens-Illinois’ motion for a new trial. Owens-Illinois then filed the instant appeal.

Before deciding whether the trial court erred in determining that Pennsylvania law would control the liability issue herein, we must first ascertain whether appellant has properly preserved this issue for appellate review. We believe the issue is properly before us. In announcing the stipulation between the parties in open court, the trial judge stated the following:

THE COURT: I am pleased to announce that we have reached an accord and satisfaction in this case. Prior to coming to court today evidently Fibreboard and Celotex made arrangements with the Plaintiff and, therefore, they are not here and that left only Owens-Illinois involved in the case and we have just made an agreement among counsel that Owens-Illinois will agree to—for the purposes of appeal, a one-tenth percentage of liability and they will have the right to appeal on the first portion of the case, also on the issue of the application of New York law because if this case had gone into liability I made up my mind to apply Pennsylvania law____
The issue of whether New York law applied I made up my mind, and with respect to your clients I give them that issue to raise on post-verdict motions.

Trial transcript at 3-4.

Upon review of this above explanation of the stipulation between the parties, it is abundantly clear that the stipulation was conditioned on the preservation of Owens-Illinois’ appellate rights as to the choice-of-law determination. As Owens-Illinois properly raised the choice-of-law issue in its post-trial motions, the present appeal with respect to such issue is rightly before this Court. See Pa.R.App.P. 302(a).

Before turning to a choice-of-law discussion and the competing interests and contacts of Pennsylvania and New York with respect to the present case, a brief dissertation of the differing laws of each state is in order at this juncture. In Pennsylvania, our Supreme Court has rejected application of the state-of-the-art defense in strict liability suits. Carrecter v. Colson Equipment Co., 346 Pa.Super. 95, 499 A.2d 326 (1985). The rationale is that such a defense would inject negligence principles into a strict liability case. Negligence is not an element of the plaintiff’s case, nor is the absence thereof an available defense. Therefore, such a defense has not been permitted in a products liability action in Pennsylvania. By contrast, New York permits a products liability defendant to assert the state-of-the-art defense. Voss v. Black & Decker Manufacturing Co., 59 N.Y.2d 102, 463 N.Y.S.2d 398, 450 N.E.2d 204 (1983).

We must now decide the choice-of-law question, implementing Pennsylvania choice-of-law rules. Pennsylvania courts have abandoned the rule of lex loci delicti in favor of a less restrictive approach combining the methodologies of a “government interest analysis” and the “significant relationship” approach of the Restatement (Second) of Conflicts § 145 (1971). Giovanetti v. Johns-Manville Corp., 372 Pa.Super. 431, 539 A.2d 871, 872 (1988), citing, Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964) (“ ... [T]he strict lex loci delicti rule should be abandoned in Pennsylvania in favor of a more flexible rule which permits analysis of the policies and interests underlying the particular issue before the court.”).

In determining which state has the greater interest in having its own law apply to a particular cause of action, courts should not merely count the contacts that each state has with the action, but should consider each state’s contacts qualitatively rather than quantitatively. See Cipolla v. Shaposka, 439 Pa. 563, 267 A.2d 854 (1970). What should be sought is an analysis of the extent to which one state rather than another has demonstrated, by reason of its policies and their connection and relevance to the matter in dispute, a priority of interest in the application of its rule of law. McSwain v. McSwain, 420 Pa. 86, 94, 215 A.2d 677, 682 (1966).

In Giovanetti v. Johns-Manville Corp., supra, the plaintiff, a New Jersey resident, brought action against various manufacturers and distributors of asbestos products for injuries resulting from exposure to asbestos during the course of his employment. The facts indicated that the plaintiff had spent twenty-seven years working in New Jersey, as opposed to only two years in Pennsylvania. As six of the defendants were Pennsylvania based corporations, the Court recognized Pennsylvania’s legitimate interest in ensuring that Pennsylvania companies do not manufacture or distribute hazardous products which cause injury. The Court, however, believed that Pennsylvania’s interest was eclipsed by the numerous contacts between New Jersey and the cause of action, noting the vast discrepancy in the length of time plaintiff was exposed to asbestos products in each state and the fact that all of the defendant’s engaged in business in New Jersey. Therefore, the Court held that New Jersey’s interest in seeing its citizens compensated for injuries occurring within its borders was greater than Pennsylvania’s interest in discouraging the manufacture and distribution of asbestos products in Pennsylvania, where the cause of action arose out of injury occurring primarily in the state of New Jersey. Id., 372 Pa.Superior Ct. at 436-437, 539 A.2d at 873.

Upon reviewing the relationship of Pennsylvania and New York to the case sub judice, and each state’s respective interest in having its own law apply, we believe New York’s law controls the present case. The record indicates that decedent, a then-resident of New York, was employed in New York between 1941 and 1965 and alleges exposure to Owens-Illinois’ asbestos products between 1948 and 1958. While employed in Pennsylvania from 1965 to 1976, decedent was not exposed to any Owens-Illinois product, as Owens-Illinois ceased the manufacture, sale, and distribution of asbestos-products in 1958. Therefore, appellant’s argument that the exposure to its own products took place entirely within the state of New York is meritorious and worthy of great weight in the choice-of-law analysis. Additionally, as appellant correctly points out, the relationship between decedent and appellant was centered in New York, for the reason that decedent was exposed to appellant’s products only in New York. Finally, decedent was a resident of New York at the time he was exposed to the Owens-Illinois asbestos products.

With regard to Pennsylvania’s relationship to the present case, its contacts are scarce. First, Pennsylvania is the forum in which the present action has been brought; hence, if an interest in the action is established, this is but one factor to be considered in the analysis. Restatement (Second) of Conflicts § 6 (1971). The only other contact that Pennsylvania has to the present case is the fact that decedent was employed in Pennsylvania following his exposure to appellant’s asbestos products in New York. While employed in Pennsylvania, decedent was again exposed to asbestos products, none of which, however, were manufactured by appellant Owens-Illinois. The evidence, however, is inconclusive as to whether decedent’s exposure to asbestos products in Pennsylvania contributed to the illness from which he suffered. Nonetheless, it is clear, for purposes of the present appeal, that decedent was only exposed to asbestos products manufactured by Owens-Illinois while in New York. With respect to the present case where Owens-Illinois remains the sole defendant, the only contact that Pennsylvania has is by virtue of being the forum state. As stated, Pennsylvania does not permit a products liability defendant the use of the state-of-the-art defense. This denial of the defense is to further our policy of refusing to inject negligence principles into a strict liability action. Underlying this basic policy, however, is a policy of compensating our citizens for injuries resulting from defective products and discouraging the manufacture and distribution of such products within Pennsylvania. In the present case, however, such interests are not implicated, as the decedent was not a citizen or resident of Pennsylvania during the course of his employment in either New York or Pennsylvania. Decedent was not even exposed to any asbestos products in Pennsylvania which were manufactured by Owens-Illinois. Therefore, applying Pennsylvania law to the instant case would not further any of Pennsylvania’s policies with respect to products liability cases.

To the contrary, New York has by far a greater interest in having its law apply. It is the location where decedent was exposed to Owens-Illinois’ asbestos products; it is the place where the relationship between decedent and Owens-Illinois was centered and was the residence of decedent during the years that he was employed in New York. By virtue of its law permitting strict products liability defendants to assert a state-of-the-art defense, New York has a policy of according fairness to manufacturers who, due to technological limitations at the time of the injury, are prevented from making a certain product safer. We believe that this policy of protecting manufacturers who act in accordance with the industry standards of the time extends to Owens-Illinois herein, as Owens-Illinois, although an Ohio corporation, conducted its business in New York and, as a result, decedent was exposed to its products.

Accordingly, in the interests of comity and respect for New York’s extensive and somewhat exclusive relationship to the present case, we hold that the trial court committed error in refusing to apply New York law. Hence, we reverse and remand for trial on the issue of liability under New York law.

Reversed and remanded. Jurisdiction relinquished.

WIEAND, J., files a concurring statement.

WIEAND, Judge,

concurring:

I join the careful analysis of the majority. I write separately to express the hope, perhaps in vain, that Pennsylvania will yet join the “mainstream” in strict liability, design defect cases. When that happens,, even Pennsylvania manufacturers will be liable for a “design defect” only if they knew or should have known that the design of their product was unreasonably dangerous.

      . The record indicates that the trial court order denying Owens-Illinois’ post-trial motions was dated August 13, 1990; however, entry of judgment, as required by Pa.R.App.P. 301, was not made until January 15, 1990, following appellant’s praecipe to the trial court for entry of the judgment.

      . The record indicates that the decedent’s employment in the shipyard was interrupted by military service from 1941-1943; however, such period of non-employment at the shipyard is inconsequential to the present appeal.

      . We find it unnecessary to analyze New Jersey’s interest in having its law apply, or ascertaining the state of New Jersey law with respect to the state-of-the-art defense to strict products liability actions, as New Jersey’s only contact to this case is the fact that the decedent was a resident of New Jersey while employed in Pennsylvania, where he was not even exposed to any of Owens-Illinois’ products.

      . While decedent was exposed to asbestos-containing products manufactured by other companies while employed in Pennsylvania, those companies are no longer parties to the present action and we perceive no reason why this exposure should be a continuing contact between Pennsylvania and the present case, for choice-of-law purposes. See Kelly v. Johns-Manville Corp., 590 F.Supp. 1089 (E.D.Pa.1984) (In multi-defendant asbestos case, plaintiffs claims against each defendant is severable for choice-of-law purposes.).

      . We are not willing to reach as far as appellant in its assertion that decedent’s exposure to asbestos products in Pennsylvania did not contribute to his illness. Appellant supports this argument by evidence, from expert testimony, that the latency period for mesothelioma is 20 years. As decedent was diagnosed with mesothelioma in 1982, appellant alleges that only pre-1962 exposure could have contributed to his illness, which would have occurred in New York. In his deposition testimony, however, the medical expert admits that a variety of opinion exists as to the latency period for such disease. CSee deposition of Dr. Epstein at 45.) Therefore, we are unable to accept the twenty-year latency period as conclusive evidence that decedent's illness was not caused, in part, by his exposure to asbestos products in Pennsylvania.


author: ROWLEY, President Judge.

text:
    593 A.2d 895
    COMMONWEALTH of Pennsylvania, Appellant, v. Nathaniel DANIELS.
    Superior Court of Pennsylvania.
    Argued May 7, 1991.
    Filed July 1, 1991.
    Petition for Allowance of Appeal Denied Nov. 15, 1991.

      Hugh H. Burns, Jr., Asst. Dist. Atty., Philadelphia, for Com., appellant.
    Fortunato N. Perri, Jr., Philadelphia, for appellee.
    Before ROWLEY, President Judge, and CIRILLO and JOHNSON, JJ.
   ROWLEY, President Judge.

The Commonwealth of Pennsylvania, appealing from the order of the trial court granting appellee’s motion to suppress, raises the following issue: whether the trial court erred in suppressing two handguns seized while in plain view by police officers lawfully present in appellee’s home. After reviewing the record, we reverse the order of the trial court granting appellee’s motion to suppress the handguns.

The following factual history was set forth by the trial court in its opinion:

On November 26, 1987, at 8:30 p.m. Michelle Wharton told police Officer Marone that earlier that evening she had been raped at gunpoint by her ex-boyfriend, [appellee] Nathaniel Daniels, at his residence at 1519 Opal Street. Officer Marone and two other police officers took the complainant to 1519 Opal Street. The defendant answered the door and stepped outside. He was immediately handcuffed and escorted to the partol [sic] car where he was identified by the complaining witness. The defendant asked permission to get his keys and lock his door before being taken to the police station. He was told that he could do so only if accompanied inside by the officers. Several Officers followed the defendant to a second floor bedroom where Officer Kapusta seized a gun located on a dresser. Before escorting the defendant out of the house[,] Officer Kapusta went into the dining room and took a second gun from the table.

Trial Court Opinion at 2-3 (footnote added) (citations to record omitted).

The trial court determined that appellee merely “acquiesced to the police entry in order to obtain his keys rather than leaving his house unlocked [and] there was no consent for any search or for any seizure.” Id. at 4. Therefore, the trial court concluded that the police officers had no right to search appellee’s house and seize anything contained in it without a search warrant. The Commonwealth, on the other hand, argues that, pursuant to the plain view exception to the Fourth Amendment warrant requirement, the guns could constitutionally be seized by the police officers because they were in appellee’s residence with his consent. After examining the applicable caselaw, we agree with the Commonwealth that the guns were constitutionally seized.

In considering the plain view doctrine, the Pennsylvania courts have determined that, in order for the doctrine to apply, the following requirements must be satisfied: (1) the initial intrusion must be lawful; (2) the item must have been inadvertently observed; and (3) there must be probable cause to link the observed property with criminal activity. Commonwealth v. Pine, 370 Pa.Super. 410, 536 A.2d 811 (1988), allocatur denied, 519 Pa. 653, 546 A.2d 57 (1988); Commonwealth v. Kendrick, 340 Pa.Super. 563, 490 A.2d 923 (1985). The United States Supreme Court has recently discussed these requirements in Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990):

It is, of course, an essential predicate to any valid warrantless seizure of incriminating evidence that the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed. There are, moreover, two additional conditions that must be satisfied to justify the warrantless seizure. First, not only must the item be in plain view, its incriminating character must also be ‘immediately apparent.’ ... Second, not only must the officer be lawfully located in a place from which the object can be plainly seen, but he or she must also have a lawful right of access to the object itself.

Id. at-, 110 S.Ct. at 2308, 110 L.Ed.2d at 123 (footnote added) (citations omitted) (footnote omitted). In Horton, the court eliminated the requirement that the observation of the item must be inadvertent.

In the present case, the trial court based its decision to grant appellee’s motion to suppress on the determination that the initial intrusion was not lawful. The trial court stated that appellant did not consent to the police officer’s entry into his home, but only submitted to lawful authority after “[t]he police made it very clear that the defendant, under arrest outside of his home, would be permitted to secure his premises only if accompanied by the police officers.” Trial Court Opinion at 4. Similarly, appellee contends that, after he was placed under arrest and handcuffed, he was “presented with a Hobson’s choice: either ‘consent’ to the officer’s entry or, without his keys, leave his home unsecured. Clearly, [he] had no choice whatsoever and his consent can, in no way imaginable, be deemed voluntary.” Appellee’s Brief at 7. We do not agree.

After appellee was handcuffed, he asked police officers if he could get his keys so that he could lock his house. He argues that he merely stood silent after this request and that the police officers unilaterally decided to enter his home. Clearly, the police officers’ entry into appellee’s home was in response to appellee’s request that he be allowed to enter his home to get his keys. Given the circumstances, he could not have reasonably believed that he would be permitted to enter his home alone. Obviously, he could do so only if accompanied by the police officers. He was under arrest after being identified by the victim as the man who had raped her at gunpoint in his home. It would have been completely irresponsible for the police officers to permit appellee to enter his home alone.

Even if appellee initially had this belief, unreasonable as it would have been, he could have decided to leave his house unlocked after he realized the police officers were going to accompany him into the house. Appellee did not merely acquiesce to the police officers’ entry; it was appellee’s own choice to go into his home which required the police officers to accompany him. Cf. Davidson, supra (When the defendant requested that the police officer return her purse to her, the police officer conducted a lawful protective search of the purse first; the drugs found therein were in plain view and therefore admissible.). The fact that appellee was faced with a difficult. choice,' that is, leave his home unlocked or allow the police officers to enter his home, does not make the police officers entry any less lawful.

Appellee also argues that he believed that he was consenting to the police officers accompanying him into the house so that he could get his keys, but that he did not understand that his agreement to their entry was also an agreement to a waiver of his right to be free from unwarranted searches. This assertion reflects a misunderstanding of the plain view doctrine.

‘In general, where practical, the police are required to obtain a search warrant. Warrantless searches are per se unreasonable, subject only to a few, limited exceptions.’ When police officers who are ‘justifiably at the scene [see] contraband in plain view,’ however, the observation ‘is not a search within the meaning of the Fourth Amendment____ [and] no warrant is required.’

Weik, supra 360 Pa.Super. at 563, 521 A.2d at 45 (citations omitted). The fact that appellee did not consent to a search is irrelevant because no search was conducted.

Because we have concluded that the police officers were lawfully in appellee’s house, we must determine whether the observation of the guns was inadvertent. The plain view exception cannot be used as a pretext when police officers know in advance the location of an item and intend to seize it. Kendrick, supra, 340 Pa.Super. at 569, 490 A.2d at 926 (citing Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). In Ken drick, the court noted that although the police officers were aware of the possibility that a drug sale might be in progress when they lawfully entered the defendant’s home, there was nothing to indicate that they had anything more than a general expectation. Similarly, in the present case, the police officers were aware that the victim had been raped at gunpoint. However, they did not enter the house knowing the location of the guns and intending to seize them. We therefore conclude that the observation of the guns was inadvertent.

Finally, we must consider whether the police officers had probable cause to believe that the guns were evidence of criminal activity. The probable cause standard

merely requires that the facts available to the officer would ‘warrant a man of reasonable caution in the belief,’ that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A ‘practical, non-technical probability that incriminating evidence is involved is all that is required.’

Kendrick, supra, 340 Pa.Super. at 571, 490 A.2d at 927 (emphasis added) (quoting Texas v. Brown, 460 U.S. 730, 741-43, 103 S.Ct. 1535, 1543, 75 L.Ed.2d 502, 513-14 (1983). In Kendrick, a panel of this court found that there was probable cause for the police officers to associate a film vial with criminal activity. In Commonwealth v. Doria, 393 Pa.Super. 363, 574 A.2d 653 (1990) (en banc), during a search of the defendant’s apartment, conducted pursuant to a valid search warrant, a police officer found a leather jacket in a closet with other male clothing. Although the leather jacket was not one of the items listed on the search warrant, the police officer knew that the defendant was a suspect in burglaries other than the one which was being investigated at that time. The police officer therefore took the jacket from the closet and then telephoned one of the victims of the other burglaries to confirm the likelihood that the jacket was one of the items stolen. The court stated that the police officers were not required to dismiss the knowledge of the additional burglaries from their minds while conducting a search for evidence of other crimes. Therefore, the court concluded that seizing the jacket was proper. See also Commonwealth v. Millard, 273 Pa.Super. 523, 417 A.2d 1171 (1979) (Police officers, while searching the defendant's apartment for a key chain, ring, and frozen meats, properly seized a wrench and a bolt.).

In the present case, the victim informed the police officers that appellee had raped her in his home at gunpoint. While escorting appellee through his home, the police officer observed the two guns. Although the record does not reveal whether the police officer knew a handgun was involved, it would be a reasonable inference for the police officer to make under the circumstances. We conclude that the police officer had probable cause to believe the guns observed in appellee’s home were evidence of a crime.

Because the police officer was lawfully in appellee’s home, and because he inadvertently observed the guns and had probable cause to believe the guns were linked with criminal activity, we conclude that the plain view exception to the warrant requirement applies. Accordingly, the trial court erred in granting appellee’s motion to suppress.

The order of the trial court granting appellee’s motion to suppress is reversed. The case is remanded for further proceedings. Jurisdiction is relinquished.

      . Officer Kapusta testified that, as he was walking down the steps from the second floor, he looked over the railing and could see into the dining room where the gun was located. Suppression Hearing Transcript 7/10/89 at 44.

      . Although the trial court granted appellee’s motion to suppress the guns, the trial court did not credit appellee’s version of the events leading to the discovery of these guns. Contrary to the finding made by the trial court that the police officers escorted appellee into his home so he could get his keys and lock his house, appellee testified that, after he was outside and handcuffed, the police officers asked him if they could go inside and talk to him and that, once they were inside, they “shot straight upstairs" and he heard drawers slamming and “a lot of rumbling around on the dresser.” Suppression Hearing Transcript 7/10/89 at 62-67. Appellee, however, does not contend that the guns were located in the drawers which the police officers were allegedly searching. It is undisputed that one of the guns was on top of a speaker in appellee’s bedroom and the other gun was on the dining room table. See id. at 25-26, 64, 67.

      . The Commonwealth contends that after the suppression hearing the trial court made formal findings of fact on the record in which it characterizes the police entry as lawful and with appellee’s permission. Although the Commonwealth argues that the findings made by the trial court in its opinion, to the extent they conflict with the earlier findings, should be disregarded, the portion of the suppression hearing transcript which contains the trial court’s factual findings was not included in the certified record. We will not consider information contained only in a party’s brief. Commonwealth v. Rini, 285 Pa.Super. 475, 427 A.2d 1385 (1981). Nonetheless, the trial court’s conclusion that appellee "acquiesced” rather than "consented” is not a factual finding by which we are bound, but is a legal conclusion drawn from the findings of fact. Commonwealth v. Davidson, 389 Pa.Super. 166, 566 A.2d 897 (1989), allocatur denied, 525 Pa. 624, 578 A.2d 412 (1990). We may properly review the validity of inferences and legal conclusions drawn from the suppression court’s findings of fact. Id.

      . The fact that the police officers were already in appellee’s home when they observed the guns distinguishes the present case from those cases in which plain view alone does not justify a warrantless seizure. Those cases involve situations where the observation of the evidence takes place before any intrusion into a constitutionally protected area. See Commonwealth v. Weik, 360 Pa.Super. 560, 521 A.2d 44 (1987). In such cases, the police officers, after lawfully observing an item in plain view, may not enter and make a warrantless seizure absent exigent circumstances. Id. "This rule is contrary to the rule in the after-intrusion line of cases. In those cases because the justifiable intrusion has occurred, no further intrusion is occasioned by the seizure of evidence which is in plain view and the seizure is permitted without more____” Id., 360 Pa.Superior Ct. at 565, 521 A.2d at 46 (emphasis omitted) (quoting Commonwealth v. Adams, 234 Pa.Super. 475, 482, 341 A.2d 206, 210 (1975) (citations omitted)). The present case is an after-intrusion case in which seizure of the evidence is permitted as long as the abovementioned requirements are met.

      . Although this requirement has been eliminated by the United States Supreme Court in Horton, supra, we will still address it.


author: WIEAND, Judge:

text:
    593 A.2d 899
    COMMONWEALTH of Pennsylvania v. Peachie GREEN, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 28, 1991.
    Filed July 1, 1991.

      John M. Hickey, Media, for appellant.
    Joseph J. Mittleman, Asst. Dist. Atty., Media, for Com., appellee.
    Before WIEAND, OLSZEWSKI and MONTGOMERY, JJ.
   WIEAND, Judge:

Peachie Green was tried nonjury and was found guilty of possession of a controlled substance (heroin), possession of a controlled substance with intent to deliver and possession of drug paraphernalia. Post-trial motions were denied, and Green was sentenced to serve a term of imprisonment for not less than two (2) years nor more than four (4) years pursuant to the mandatory minimum sentencing provisions of 18 Pa.C.S. § 7508. On direct appeal from the judgment of sentence, Green, who was sixty-six (66) years of age at the time of her sentencing, raises the following issue for our review:

Does sentencing an elderly defendant who suffers from Rheumatoid Arthritis, Hypertension, Chronic Obstructive Pulmonary Disease, and has a history of a Myocardial Inf[ar]ction amount to “cruel and unusual punishment” under [the Eighth Amendment to the United States Constitution] as it is in effect a life sentence for a defendant in said physical condition?

We find no merit in appellant’s argument and, therefore, affirm the judgment of sentence.

Appellant was sentenced pursuant to the mandatory minimum sentencing provisions established by the legislature at 18 Pa.C.S. § 7508. The sentencing court, therefore, lacked authority to impose a sentence less severe than that mandated by the legislature. See: Commonwealth v. Brown, 389 Pa.Super. 66, 566 A.2d 619 (1989). “The language of § 7508 evinces an unequivocal intent by the legislature that persons committing drug offenses be punished according to the minimum sentences set forth therein.” Commonwealth v. Logan, 404 Pa.Super. 100, 104, 590 A.2d 300, 301 (1991). Appellant argues, nevertheless, that the mandatory minimum sentencing provisions of section 7508 must make allowance for a defendant who, because of advanced age and poor physical health, would suffer greatly by incarceration.

The incarceration of physically infirm individuals does not per se constitute cruel and unusual punishment. See: Commonwealth v. O’Neil, 393 Pa.Super. 111, 115-116, 573 A.2d 1112, 1114-1115 (1990). Thus, it has been held that the imprisonment of a person who tested positive for antibodies to the Human Immunodeficiency Virus (HIV) did not constitute cruel and unusual punishment. Id. In so holding, the Superior Court said:

While we do not doubt appellant’s assertion that his HIV infection will ultimately prove fatal, we find no indication in the record that appellant has yet exhibited any symptoms of AIDS. That appellant may not live to see the end of his term of imprisonment does not, without more, make his sentence of four-to-ten years’ imprisonment unconstitutional. We recognize the gravity of appellant’s situation, but cannot and will not make the sweeping pronouncement he seeks. We hold that sentencing an HIV-infected convict to a term of imprisonment is not per se cruel and unusual punishment.

Id., 393 Pa.Superior Ct. at 116, 573 A.2d at 1115 (footnotes omitted). See also: Commonwealth v. Vosburg, 393 Pa.Super. 416, 424-425, 574 A.2d 679, 683 (1990) (sentence of 3 to 10 years incarceration for mentally retarded defendant was not cruel and unusual punishment); Commonwealth v. Carr, 375 Pa.Super. 168, 173-175, 543 A.2d 1232, 1234-1235 (1988) (sentence of 2 to 4 years imprisonment imposed upon elderly defendant was not cruel and unusual punishment merely because sentencing court rejected defendant’s proposed probationary scheme which he claimed would better accommodate his special mental health needs); Commonwealth v. Landi, 280 Pa.Super. 134, 421 A.2d 442 (1980) (not cruel and unusual punishment to impose a prison sentence on a paraplegic).

“[W]hile it is the judiciary’s function to impose sentence upon conviction, it is for the legislature to fix the penalties for crimes.” Commonwealth v. Ehrsam, 355 Pa.Super. 40, 62, 512 A.2d 1199, 1210 (1986), cert. denied, 493 U.S. 932, 110 S.Ct. 321, 107 L.Ed.2d 311 (1989). “A punishment authorized by [statute] violates the proscription against cruel and unusual punishment only if it is so disproportionate to an offense as to offend evolving standards of decency or a balanced sense of justice.” Commonwealth v. Carr, supra at 175, 543 A.2d at 1235. See: Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958). See also: Commonwealth v. Vosburg, supra at 424, 574 A.2d at 683.

‘[T]he ... prohibition against ... “cruel and unusual punishment”[ ] is not a “static concept. As Mr. Chief Justice Warren said, in an oft-quoted phrase, ‘[t]he [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.’ ” Gregg v. Georgia, [428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859, 874 (1976)], quoting Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958) (plurality opinion). We believe that the most accurate indicators of those “evolving standards of decency” are the enactments of the elected representatives of the people in the legislature.
“[I]n a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people.” Gregg v. Georgia, supra 428 U.S. at 175-76, 96 S.Ct. at 2926-2927, quoting Furman v. Georgia, supra, 408 U.S. [238] at 383, 92 S.Ct. [2726] at 2800 [33 L.Ed.2d 346].

Commonwealth v. Hernandez, 339 Pa.Super. 32, 40, 488 A.2d 293, 297-298 (1985), quoting Commonwealth v. Zettlemoyer, 500 Pa. 16, 74-75, 454 A.2d 937, 967-968 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). Thus, “in assessing a claim that a sentence is so disproportionate as to violate the eighth amendment, ‘[Reviewing courts ... should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishment for crimes____’” Commonwealth v. Ehrsam, supra, quoting Solem v. Helm, 463 U.S. 277, 290, 103 S.Ct. 3001, 3009, 77 L.Ed.2d 637, 649 (1983). See also: Commonwealth v. Strunk, 400 Pa.Super. 25, 35-37, 582 A.2d 1326, 1331 (1990).

Applying these standards, the Superior Court has twice rejected arguments that the imposition of a mandatory minimum sentence pursuant to 42 Pa.C.S. § 9712 constitutes cruel and unusual punishment. In first rejecting this argument the Court reasoned as follows:

The legislature’s enactment of section 9712 evinces a recognition of the seriousness of felonies committed with firearms, as well as a determination to protect the public from those armed with firearms, to deter violent crime and the illegal use of firearms, and to vindicate the legislature’s interest in punishing those who commit serious crimes while visibly armed with a firearm. Commonwealth v. Wright, supra 508 Pa. [25] at 40, 494 A.2d [354] at 362 [1985]. We find that section 9712’s five year mandatory minimum sentence is not disproportionate to the seriousness of the crime appellant committed, and does not shock either a balanced sense of justice or offend evolving notions of decency. Appellant’s claim that section 9712 violates the prohibition against cruel and unusual punishment is accordingly without merit.

Commonwealth v. Ehrsam, supra, 355 Pa.Superior Ct. at 62, 512 A.2d at 1210. When faced with the same argument three years later, the Court reasoned further as follows:

The Pennsylvania legislature has determined that the protection of the public requires that a mandatory minimum sentence be imposed upon all persons convicted of specific crimes who visibly possessed a firearm during the commission of such offenses. 42 Pa.C.S.A. § 9712(a). In order to enhance general (rather than specific) deterrent effects, the individual circumstances of particular cases are not to be considered in deciding whether the mandatory minimum sentence applies; rather, when the mandatory minimum sentence applies, the individual circumstances of the particular case are only to be considered in determining whether sanctions in excess of the mandatory minimum sentence should be imposed. 42 Pa.C.S.A. § 9712(c). We find nothing excessive or arbitrary in the legislature’s decision that the need to deter the illegal possession of firearms during the commission of specified crimes warrants imposition of a five year mandatory minimum sentence; consequently, appellant’s claim fails.

Commonwealth v. Howard, 373 Pa.Super. 246, 250, 540 A.2d 960, 962 (1988).

The same rationale is equally applicable to mandatory minimum sentences established by 18 Pa.C.S. § 7508. The legislature, by enacting section 7508, has announced that drug offenses are serious crimes from which the public needs to be protected. In order to deter such offenses, the legislature has established mandatory minimum sentences which vary according to the type and amount of the drug involved. The mandatory minimum sentence established by section 7508 and applicable to appellant’s offense is not disproportionate to the seriousness of appellant’s crimes. In Commonwealth v. Wildermuth, 347 Pa.Super. 640, 501 A.2d 258 (1985), appeal dismissed, 514 Pa. 374, 524 A.2d 490 (1987) and 484 U.S. 805, 108 S.Ct. 50, 98 L.Ed.2d 15 (1987), the Court observed:

‘Defendant’s assertion that Pennsylvania has “no prison facility specially [designed] to meet the needs of the aged and infirm,” does not prove that incarceration per se would be cruel and unusual punishment. Certainly, if the defendant required medical treatment it would be available to him, but to conclude that any prison term violates the 8th Amendment is without foundation. We also do not believe that the legislature had any obligation to consider a defendant such as Mr. Wildermuth i[n] establishing a mandatory minimum sentence.’

Id., 347 Pa.Superior Ct. at 646, 501 A.2d at 261, quoting with approval from the opinion of the trial court.

We hold, therefore, that in the instant case, appellant’s sentence did not violate the Eighth Amendment to the United States Constitution. Therefore, the judgment of sentence must be, as it is,

Affirmed.

      . The Commonwealth asserts that this issue has been waived because of appellant's failure to file a motion to modify her sentence. A claim that a sentence violates the Eighth Amendment right to be free from cruel and unusual punishment, however, constitutes a challenge to the legality of the sentence imposed. See: Commonwealth v. O’Neil, 393 Pa.Super. 111, 115, 573 A.2d 1112, 1114 (1990); Commonwealth v. Carr, 375 Pa.Super. 168, 173, 543 A.2d 1232, 1234 (1988); Commonwealth v. Howard, 373 Pa.Super. 246, 248, 540 A.2d 960, 961 (1988). "The illegality of a sentence is not a waivable issue." Commonwealth v. Neidig, 340 Pa.Super. 217, 224, 489 A.2d 921, 924 (1985). See also: Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976), overruled on other grounds in Commonwealth v. Frisbie, 506 Pa. 461, 485 A.2d 1098 (1984); Commonwealth v. Campbell, 351 Pa.Super. 56, 505 A.2d 262 (1986). Accordingly, we will address the merits of appellant’s Eighth Amendment argument.

      . 42 Pa.C.S. § 9712 establishes a mandatory minimum five (5) year sentence for certain enumerated crimes committed when the defendant was in visible possession of a firearm.

      . Other mandatory sentencing provisions have been consistently upheld against challenges contending that they violated the Eighth Amendment’s prohibition against cruel and unusual punishment. See, e.g.: Commonwealth v. Ross, 391 Pa.Super. 32, 570 A.2d 86 (1990) (mandatory minimum sentence for certain crimes committed in or near public transportation, 42 Pa.C.S. § 9713); Commonwealth v. Wildermuth, 347 Pa.Super. 640, 501 A.2d 258 (1985) (mandatory minimum sentence for enumerated crimes committed against children under 16 years of age, 42 Pa.C.S. § 9718); Commonwealth v. Cieri, 346 Pa.Super. 77, 499 A.2d 317 (1985) (mandatory minimum sentence for homicide by vehicle while driving under the influence of alcohol, 75 Pa.C.S. § 3735); Commonwealth v. Hernandez, supra (mandatory minimum sentences for drunk driving, 75 Pa.C.S. § 3731(e)); Commonwealth v. Waters, 334 Pa.Super. 513, 483 A.2d 855 (1984), cert. denied, 471 U.S. 1137, 105 S.Ct. 2679, 86 L.Ed.2d 697 (1985) (mandatory life sentence for first degree murder).


text:
    593 A.2d 903
    AMERICAN TELEPHONE AND TELEGRAPH, Successor by Merger to AT & T Technologies, Inc. v. Robert E. CLIFFORD, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 24, 1991.
    Filed July 26, 1991.

      Leon Ehrlich, Reading, for appellant.
    Sharon H. Barnes, Allentown, for appellee.
    Before OLSZEWSKI, TAMILIA and FORD ELLIOTT, JJ.
   TAMILIA, Judge:

Robert E. Clifford takes this appeal from the February 7, 1991, Order sustaining appellee’s preliminary objections in the nature of a demurrer to appellant’s counterclaim, which was dismissed with prejudice plus costs. The facts pertinent to this appeal follow.

In February, 1987, appellant, an employee of appellee, American Telephone and Telegraph (hereinafter AT&T), became the recipient of a cushioning allowance to compensate him for the economic loss he incurred when he was downgraded to a lesser paying position. In October, 1987, appellant refused appellee’s offer to upgrade to his former position and, pursuant to the terms of the collective bargaining agreement governing the terms of appellant’s employment, appellee terminated the cushioning allowance. However, due to an oversight by the payroll department, the supplemental payments continued for almost two years until appellee realized its error in August, 1989. Payments were then discontinued and AT&T asked appellant to repay the $8,952.81 erroneously paid. Appellant refused, however, and in September, 1990, AT&T filed suit against appellant in the Court of Common Pleas. By way of counterclaim, appellant argued he was not obligated under the bargaining agreement to upgrade his position and was, therefore, entitled to the $8,952.81 plus an additional 65 weeks of the cushioning allowance, totaling $6,486. AT&T filed preliminary objections to the counterclaim based on appellant’s failure to submit his claim for wages through the mandatory grievance procedure outlined in Article 9 of the governing Collective Bargaining Agreement. The preliminary objections were granted and this appeal followed.

On an appeal from an Order sustaining preliminary objections in the nature of a demurrer, “we accept as true all well-pleaded material facts set forth in the complaint as well as all inferences reasonably deducible therefrom.” DiMarco v. Lynch Homes, 525 Pa. 558, 561, 583 A.2d 422, 424 (1990), quoting Dercoli v. PA National Mutual Insurance Co., 520 Pa. 471, 476, 554 A.2d 906, 908 (1989). In Pennsylvania, an employee who is a beneficiary of a collective bargaining agreement is bound by the terms of the agreement relating to his pursuit of remedies. Mamula v. United Steelworkers of America, 414 Pa. 294, 200 A.2d 306 (1964); Falsetti v. Local Union No. 2026, United Mine Workers 400 Pa. 145, 161 A.2d 882 (1960); Gingrich v. City of Lebanon, 57 Pa.Cmwlth. 594, 427 A.2d 278 (1981).

Article 9 of appellant’s collective bargaining agreement, set forth below, describes the four-step grievanee procedure an employee was to follow if he had a complaint with regard to wages, such as that averred by the appellant.

Article 9—Grievance Procedure

1. To provide for the expeditious and mutually satisfactory settlement of grievances arising with respect to wages, hours of work and other conditions of employment, the procedures hereinafter set forth shall be followed____
2. When a grievance is to be presented by the Union to the Company, the procedure outlined below shall be followed, except as otherwise provided in this or any other written agreement between the Company and the Union.
Step I
The grievance shall be presented orally by the Representative to the Section Chief with or without the employee involved and every effort shall be made by the parties to settle the grievance at this level.
Step II
If the grievance is not satisfactorily settled after presentation by the Representative in Step I, the grievance may, within three (3) working days after presentation, be submitted by the Representation involved, such grievance to be submitted in writing with four (4) copies to the Department Chief. The Department Chief shall offer to meet with the Representative involved within three (3) working days after receipt of such grievance unless the parties mutually agree otherwise. If the grievance is not settled by discussion between the parties, the Department Chief will reply in writing to the Union within four (4) working days after the conclusion of such discussions.
Step III
If the grievance is not satisfactorily settled at Step II, the grievance may, within five (5) working days from the date of the Department Chiefs reply to Step II, be submitted in writing to the Grievance Committee comprised of not more than four (4) authorized representatives of the Union and not more than four (4) authorized representative [sic] of the Company. The Chairman of the Company’s Committee shall offer to meet with the Union’s Committee within three (3) working days after the receipt of such grievance unless the parties mutually agree otherwise. If the grievance is not settled by discussion between the parties, the Company will reply in writing to the Union within five (5) working days after the conclusion of such discussion.
Step IV
If the grievance is not satisfactorily settled in accordance with the foregoing procedur [sic], the grievance may, within ten (10) working days from the date of the Company’s reply in Step III, be submitted in writing to the Company’s Bargaining Agent, in such event the Grievance Committee referred to in Step III above shall participate in a discussion of the grievance. An International Representative may participate as one of the Union’s representatives. Grievances presented in writing to the Company’s Bargaining Agent will be answer in writing by the Company within two (2) calendar weeks following the conclusion of discussions of such grievances.

(Slip Op., Schaeffer, P.J., 3/25/91, pp. 3-4.) Without benefit of the entire contract, this Court can only surmise from the record the grievance procedure outlined above is the employee’s exclusive remedy with regard to wage disputes. An aggrieved employee who is covered by a collective bargaining agreement, which provides exclusive remedies for breaches of that agreement, must attempt to exhaust those contractual remedies before initiating suit. Cohen v. Temple University, 299 Pa.Super. 124, 445 A.2d 179 (1982). Appellant’s counterclaim for wages falls within the purview of the grievance provisions of the collective bargaining agreement. Accordingly, the Court of Common Pleas is without jurisdiction to hear appellant’s counterclaim.

Appellant’s equitable argument that judicial economy demands his counterclaim be heard is also without merit. Under Pennsylvania law, counterclaims are permissive and may be set forth in a party’s answer, or may be reserved and set forth in an independent action. Bender’s Floor Covering Co. v. Gardner 387 Pa.Super. 531, 564 A.2d 518 (1989). In this case, the court was bound to sustain appellant’s preliminary objections in accord with the law relating to collective bargaining agreements. “Arbitration of grievances arising out of the interpretation of the provisions of a collective bargaining agreement is mandatory.” Univ. of Pittsburgh v. Labor Rel. Bd., 133 Pa.Cmwlth. 681, 578 A.2d 66 (1990), citing the Public Employee Relations Act, 43 P.S. § 1101.903. Should he choose to do so, appellant may now pursue his claim through the grievance procedure for which his union bargained securing contractual benefits for all union members. Pittsburgh, Etc. v. City of Pittsburgh, 481 Pa. 66, 391 A.2d 1318 (1978); see Commonwealth v. Joint Bargaining Com. of Pa. Soc., 84 Pa. Cmwlth. 613, 480 A.2d 373 (1984). Union contracts generally obtain benefits and rights for union members which exceed those available at law in Pennsylvania, which applies the “at will” doctrine of employer-employee relationships. As such, to protect these benefits, we have held that the contract is controlling when an issue is raised relating to employer-employee rights and duties. We should not deviate from that principle here. Banas v. Matthews Int. Corp., 348 Pa.Super. 464, 502 A.2d 637 (1985).

Order affirmed.


author: ROWLEY, President Judge:

text:
    593 A.2d 906
    CROWN-GLOBE, INC. v. GRENOBLE MILLS, INC. and Grenoble Knitwear, Inc., Appellants.
    Superior Court of Pennsylvania.
    Submitted June 3, 1991.
    Filed July 31, 1991.

      William E. Master, Reading, for appellants.
    Eugene C. Lamanna, Reading, for appellee.
    Before ROWLEY, President Judge, and HUDOCK and MONTGOMERY, JJ.
   ROWLEY, President Judge:

Grenoble Mills, Inc. (Grenoble Mills) and Grenoble Knitwear, Inc. (Grenoble Knitwear) appeal from the order of November 15, 1990 denying in part their post-trial motions and entering judgment on the verdict in favor of Crown-Globe, Inc. (Crown-Globe). On appeal, the only issue for our consideration is whether the trial court erred in exercising in personam jurisdiction over appellants. After reviewing the record, we conclude that the trial court properly exercised jurisdiction over appellants; therefore, we affirm the final judgment in favor of appellees.

Appellants are foreign corporations with their principal places of business in New York, New York and Fyffe, Alabama. Appellee is a Pennsylvania corporation with its principal place of business in Shoemakersville, Pennsylvania. On March 18,1981, Grenoble Mills and Crown Knitting Mills Company (Crown Knitting), a Pennsylvania corporation, of which appellee is a successor by merger, entered into a stock redemption agreement pursuant to which Crown Knitting agreed to sell to Grenoble Mills 4.5 shares of Grenoble Mills’ common stock. In return, Grenoble Mills was to pay $100,000 at closing and four annual installments of $100,000 each. Payment was to be made at Crown Knitting’s principal place of business or at such other place as Crown Knitting specified. In addition, the agreement contained the following provision:

This Agreement is being delivered and is intended to be performed in the Commonwealth of Pennsylvania and shall be construed and enforced in accordance with and governed by its laws.

On March 8, 1985, the parties entered into a subsequent agreement which by its terms cancelled the first agreement. Pursuant to this agreement, the abovementioned 4.5 shares of stock, as well as an additional 10.5 shares, was to be transferred to Grenoble Mills in exchange for promissory notes co-signed by Grenoble Mills and Grenoble Knitwear totalling $500,000. Grenoble Mills and Grenoble Knitwear also jointly agreed to pay the $100,000 installment due on March 18, 1985 pursuant to the original agreement.

On April 22, 1988, appellee filed an action against appellants in the Court of Common Pleas of Berks County to recover $81,149.13 due under the two abovementioned agreements. Appellants filed preliminary objections alleging, inter alia, a lack of in personam jurisdiction. After the trial court denied appellants’ preliminary objections, a nonjury trial was conducted. The trial court entered a verdict in favor of appellee. On October 5, 1990, appellants filed post-trial motions. The trial court granted the motions in part, but denied the motion challenging the trial court’s exercise of in personam jurisdiction. The verdict was then modified and final judgment was entered in favor of appellee. Appellants filed this timely appeal.

Appellants contend that the trial court erred in exercising in personam jurisdiction over them. We disagree. A court may exercise in personam jurisdiction over a nonresident if two requirements are met: (1) jurisdiction is authorized by the state’s long-arm statute and (2) the exercise of jurisdiction meets constitutional standards of due process. Kenneth H. Oaks, Limited v. Josephson, 390 Pa.Super. 103, 568 A.2d 215 (1989). Pennsylvania’s long-arm statute authorizes a court to exercise jurisdiction over nonresidents “ ‘to the fullest extent allowed under the Constitution of the United States’ and jurisdiction may be based ‘on the most minimum contact with this Commonwealth allowed under the Constitution of the United States.’ ” Id., 390 Pa.Superior Ct. at 105-06, 568 A.2d at 216 (quoting 42 Pa.C.S. § 5322(b)). Under the Due Process Clause of the Fourteenth Amendment to the United States Constitution, the exercise of personal jurisdiction over a nonresident defendant is permitted if “the defendant has ‘certain minimum contacts ... such that the maintenance of the suit does not offend, ‘traditional notions of fair play and substantial justice.’ Milliken v. Meyer, 311 U.S. 457, 463 [61 S.Ct. 339, 342, 85 L.Ed. 278 (1940) ].’ ” Eastern Continuous Forms, Inc. v. Island Business Forms, Inc., 355 Pa.Super. 352, 354-55, 513 A.2d 466, 467 (1986) (quoting Colder v. Jones, 465 U.S. 783, 787, 104 S.Ct. 1482, 1486, 79 L.Ed.2d 804, 810 (1984)).

Where, as here, an interstate contractual obligation is at issue, “parties who ‘reach out beyond one state and create continuing relationships and obligations with citizens of another state’ are subject to regulation and sanctions in the other State for the consequences of their activities.” Kenneth H. Oaks, supra, 390 Pa.Superior Ct. at 106, 568 A.2d at 217 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473, 105 S.Ct. 2174, 2182, 85 L.Ed.2d 528, 540 (1985). Although entering into a contract is not in and of itself sufficient to establish minimum contacts, “negotiations prior to the contract, its contemplated future consequences, the terms of the contract and the parties’ actual course of dealing must be evaluated” to determine whether the nonresident defendant purposefully availed itself of the privilege of acting within the forum state. Kenneth H. Oaks, supra, 390 Pa.Superior Ct. at 106-07, 568 A.2d at 217.

In the present case, pursuant to the first agreement, appellants were to pay to appellee $100,000 annually for four years. In addition, appellants were to provide monthly and annual financial statements to appellee. Clearly, this was a continuing contact with Pennsylvania, rather than merely a single, random act. Also, by agreeing to the choice of law provision in the first agreement, appellants purposefully availed themselves of Pennsylvania law. The agreement also specified that it was delivered and intended to be performed in Pennsylvania. Because the basis of appellee’s cause of action against appellants was the allegation that appellants failed to perform, the cause of action arose in Pennsylvania. Furthermore, correspondence between the parties reveals that, during negotiations for the second agreement, the parties communicated by telephone and mail and appellants’ representative attended a conference in Pennsylvania.

Additionally, exercise of jurisdiction over appellant would not offend traditional notions of fair play and substantial justice. The contacts which appellant has with Pennsylvania, outlined above, are “purposeful and continuous enough such that appellant] could reasonably have anticipated ‘being haled into court’ here.” Kenneth H. Oaks, supra, 390 Pa.Superior Ct. at 108, 568 A.2d at 218 (quoting World Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490, 501 (1980). For the above reasons, we affirm the order of the trial court and the final judgment entered in favor of appellee.

Final judgment affirmed.

      . If appellee had filed an election that the order denying appellants’ preliminary objections be deemed final, appellants would have had to file a timely appeal from that order or their objection to the court’s jurisdiction would have been waived. See Pa.R.A.P. 311(b)(1), (d)(1)(a). Because appellee did not file an election, the challenge to jurisdiction has been properly raised in this appeal. Rule 311(d)(2).

      . We do not agree with appellants’ assertion that, because the second agreement cancelled the first agreement, the first agreement should not be considered in our determination of whether appellants have sufficient contacts with Pennsylvania. To the contrary, the fact that the parties entered into more than one agreement reveals a continuing relationship between the parties and reinforces the conclusion that appellants are subject to the jurisdiction of Pennsylvania courts.


author: MONTEMURO, Judge:

text:
    593 A.2d 1275
    COMMONWEALTH of Pennsylvania, Appellant, v. Steven HATFIELD, Elaine Hatfield, Intervenor.
    Superior Court of Pennsylvania.
    Submitted April 1, 1991.
    Filed May 28, 1991.
    Reargument Denied Aug. 7, 1991.
    Petition for Allowance of Appeal Granted Nov. 13, 1991.

      J. Karen Arnold, Asst. Dist. Atty., Bellefonte, for Com., appellant.
    Pamela A. Ruest, State College, for appellee.
    Edward S. Blanarik Jr., State College, for intervenor.
    Before CIRILLO, MONTEMURO and HESTER, JJ.
   MONTEMURO, Judge:

This a Commonwealth appeal from an order quashing a subpoena issued for Elaine Hatfield, the victimized wife of the accused in this case, which involves charges of aggravated assault, simple assault, disorderly conduct and harassment.

On February 10, 1990, the victim telephoned her employer asking for help after her husband, Steven Hatfield, had beaten her during an argument, leaving her with a bloody nose, a black eye and multiple contusions on the face and head. Police were summoned, and the accused was arrested. However, at the preliminary hearing, Elaine Hatfield refused to give evidence against her husband. Nevertheless, on the basis of testimony provided by other witnesses, Hatfield was held for court. Pursuant to the scheduled bench trial, a subpoena was issued for Elaine Hatfield, who via counsel filed a petition to quash on the basis that compelled testimony was barred by spousal privilege.

The trial court granted the petition, and this appeal followed.

In support of its challenge to the trial court’s action, the Commonwealth relies upon 42 Pa.C.S.A. § 5913, which reads in pertinent part as follows:

§ 5913. Spouses as Witnesses against each other
Except as otherwise provided in this subchapter, in a criminal proceeding a person shall have the privilege, which he or she may waive, not to testify against his or her then lawful spouse except that there shall be no such privilege:
(2) in any criminal proceeding against either for bodily injury or violence attempted, done or threatened upon the other ...

This court has held, in commenting on the effect of this statute and its predecessor, 19 P.S. § 683, that

It is axiomatic that no claimant of a testimonial privilege can be the final arbiter of his own claim ... Moreover, were the interspousal testimonial competency provided for in 19 P.S. § 683 to be contingent upon the discretion of the victimized spouse, it would materially frustrate the legislative intent of facilitating the prosecution of criminal behavior occurring in a domestic setting frequently devoid of witnesses other than the spouses themselves.

Commonwealth v. Hess, 270 Pa.Super. 501, 411 A.2d 830 (1979), appeal dismissed, 499 Pa. 206, 452 A.2d 1011 (1982).

In extrapolating upon this notion, we have also held that the violence exception to the competency rule was created not only to protect the injured spouse,

but also partly for the sake of public justice in seeing to it that criminal acts do not go unpunished.
Clearly, if the wife is deemed competent by this exception, the efficacy of preserving domestic peace and tranquility has already been abrogated by the actions of the accused spouse.

Commonwealth v. Galloway, 271 Pa.Super. 305, 310, 413 A.2d 418, 420 (1979).

The case law is thus consistent in memorializing the recognition that domestic violence is no less a crime against society because the victim is married to the perpetrator. It follows naturally, then, from the multiple purposes of the statute that “not only is the spouse competent to testify in domestic violence cases, she or he may be compelled to testify,” Commonwealth v. Hancharik, 388 Pa.Super. 337, 345, 565 A.2d 782, 786 (1989); (emphasis in original). Whether to force the unwilling spouse to give evidence thus becomes a matter for the trial court’s discretion. Hess, supra.

In explaining its decision, the trial court found that the ends of justice would best be served by granting the petition, apparently seeing the termination of the prosecution, which the Commonwealth stipulated would result from Elaine’s failure to testify, as a means of preserving the Hatfields’ marriage. In so deciding, the court relied upon the assurances of counsel, who stated that the circumstances giving rise to the criminal charges were unique, and that the Hatfields had undertaken counseling to remedy the underlying causes of their discord.

In assessing the correctness of the trial judge’s decision in this case, we are offered little guidance by the authorities addressing the question of spousal privilege, since they present factual situations greatly at variance from the current one. For example, in Hess, the challenge to the wife’s testimony came on direct appeal from judgment of sentence after the trial court’s ruling that the wife was required to give evidence had already been implemented. Nor was any indication provided as to what factors the trial court relied upon in deciding to compel the testimony of the victimized spouse. In Galloway, the reluctant wife was not forced to testify at appellant’s first trial; however, on remand, she was found to be the only living witness to the crime, which involved a homicide directly related to spousal abuse, and was found to have waived any possible spousal privilege by her testimony at her husband’s preliminary hearing. In Hancharik the wife, who was not also the victim, was a willing witness, as was the wife in Commonwealth v. Robinson, 468 Pa. 575, 364 A.2d 665 (1976), and Commonwealth v. Dubin, 399 Pa.Super. 100, 581 A.2d 944 (1990).

We are thus left with the trial court’s conclusion that the interests of justice would best be served by nullifying the prosecution of this case, and are constrained to defer to the trial court as fact finder. However, given the court’s notice of the increasing numbers of cases in which victimized spouses assert an unwillingness to testify, we would find that a record should be made on which to base the exercise of judicial discretion, at least as to the couple’s past history. As it is insufficient for a criminal whose victim is not his spouse to avoid prosecution by recourse to therapeutic intervention, so perpetrators of domestic violence should not automatically be exempt from punishment because they have sought counselling. Nevertheless, we are satisfied that here the trial court’s exercise of its discretion was not improper.

Order affirmed.

      . At the hearing, the petition was amended to include a claim of Fifth Amendment privilege as well. However, since the Commonwealth assured the court it had no intention of prosecuting the witness, the trial court found this argument baseless.


text:
    593 A.2d 1277
    Charles FRANCISCO and Cecilia Francisco, H/W v. FORD MOTOR COMPANY, Eaton Corporation and Hertz Penske Truck Leasing, Inc. Appeal of HERTZ PENSKE TRUCK LEASING, INC.
    Superior Court of Pennsylvania.
    Argued April 2, 1991.
    Filed June 11, 1991.
    Reargument Denied Aug. 14, 1991.
    Petition for Allowance of Appeals Denied Dec. 17, 1991.
    See also, 397 Pa.Super. 430, 580 A.2d 374.

      Robyn J. Farrell, Philadelphia, for appellant.
    Don P. Foster, Philadelphia, for Francisco, appellees.
    Before WIEAND, OLSZEWSKI and BROSKY, JJ.
   WIEAND, Judge:

More than four years after service of the complaint in this products liability litigation, Hertz Penske Truck Leasing, Inc. (Hertz) filed a petition for leave to join Simpson Industries, Inc. as an additional defendant. The trial court denied the petition, and Hertz appealed. It contends that the denial of its petition constituted an abuse of the trial court’s discretion. We disagree and affirm the order of the trial court.

Pa.R.C.P. 2253 establishes the time within which to join an additional defendant as follows:

[Njeither praecipe for a writ to join an additional defendant nor a complaint if the joinder is commenced by a complaint, shall be filed by the original defendant or an additional defendant later than sixty days after the service upon the original defendant of the initial pleading of the plaintiff or any amendment thereof unless such filing is allowed by the court upon cause shown.

The goal of this and other rules pertaining to the joinder of additional defendants is “to provide a means to simplify and expedite the disposition of matters involving numerous parties ... without subjecting the original plaintiff to unreasonable delay in the prosecution of his portion of the litigation.” Zakian v. Liljestrand, 438 Pa. 249, 256, 264 A.2d 638, 641 (1970). Before late joinder can properly be granted, the petitioning defendant or additional defendant must show sufficient cause. Neither Rule 2253 nor the Supreme Court has defined sufficient cause for late joinder, but it has been suggested that a court should be guided by the objectives sought to be achieved by the additional defendant procedure. Id. The Superior Court, however, has said that, in addition to showing a proper grounds for joinder, a party requesting late joinder must show (1) some reasonable excuse for the delay and (2) that the original plaintiff will not be prejudiced by the late joinder. See: NPW Medical Center v. LS Design Group, P.C., 353 Pa.Super. 341, 345, 509 A.2d 1306, 1308-1309 (1986). See also: Consul v. Burke, 403 Pa.Super. 400, 589 A.2d 246 (1991); Prime Properties Dev. v. Binns, 397 Pa.Super. 492, 580 A.2d 405 (1990); Glabbatz v. Terminal Freight Handling, 386 Pa.Super. 447, 563 A.2d 151 (1989); Riccobono v. Keystone Helicopter Corp., 352 Pa.Super. 186, 189, 507 A.2d 834, 836 (1986). “[W]hether sufficient cause has been established so as to permit an extension of time is a matter resting within the sound discretion of the trial court, whose decision will not be disturbed [on appeal] absent an abuse of that discretion.” NPW Medical Center v. LS Design Group, P.C., supra, 353 Pa.Super. at 345, 509 A.2d at 1309. “An abuse of discretion is synonymous with a failure to exercise a sound, reasonable, and legal discretion. It is a strict legal term indicating that [an] appellate court is of opinion that there was commission of an error of law by the trial court. It does not imply intentional wrong or bad faith, or misconduct, nor any reflection on the judge, but means [a] clearly erroneous conclusion and judgment—one that is clearly against logic and [the] effect of such facts as are presented in support of the application or against the reasonable and probable deductions to be drawn from the facts disclosed upon the hearing; an improvident exercise of discretion; an error of law.” Commonwealth v. Powell, 527 Pa. 288, 297 fn. 8, 590 A.2d 1240, 1249 fn. 8 (1991), quoting Black’s Law Dictionary, 5th Ed. (1979). See also: NPW Medical Center v. LS Design Group, P.C., supra, 353 Pa.Super. at 345 n. 3, 509 A.2d at 1309 n. 3.

The facts of the instant case are that Charles Francisco was injured in an automobile accident on February 14, 1983, when he lost control of the rental truck which he was driving as part of his employment. He and his wife, Cecilia, filed, on October 10, 1985, a complaint in which they averred that the steering mechanism of the truck had been defective. They alleged, specifically, that the power steering pump pulley and accompanying parts had been defective when supplied by Eaton Corporation, a parts distributor, and had been installed improperly by Ford Motor Company. They also averred in a count against Hertz that the vehicle had been maintained in a careless and negligent manner.

Hertz’s motion to join Simpson Industries, Inc. (Simpson) as an additional defendant was filed on April 5, 1990. It averred that Simpson had been the manufacturer of the pump pulley supplied by Eaton Corporation and installed by Ford Motor Company. The identity of the manufacturer, Hertz averred, had not been discovered until December, 1989. The trial court, however, found the facts to be as follows:

Hertz was aware that the identification of the truck and the pulley would be an issue in this action some time before June 18, 1984[,] when Plaintiff’s counsel informed Hertz that the pulley was available for inspection by Defendant’s representatives.
On or about January 29,1985[,] Hertz was informed via telephone of the vehicle identification number (“VIN”) for the tractor portion of five trucks, one of which may have been the one driven by Plaintiff. The possession of these VIN’s permitted Hertz to seek discovery regarding the manufacturer of the pulleys in these trucks.
Hertz did not serve written discovery requests on any party[,] nor did Hertz schedule an inspection of the pulley until October 12, 1989.

The delay in identifying Simpson Industries as the manufacturer is even more inexplicable when one becomes aware that Simpson’s vice president of engineering and quality assurance is and has been the expert for Hertz’s co-defendant, Eaton Corporation, in this action.

The Pennsylvania Supreme Court has said that “[bjefore the defendant can ask the court to help him secure a just, speedy and inexpensive determination of the suit by permitting late joinder, he must have acted expeditiously himself.” Zakian v. Liljestrand, supra, 438 Pa. at 256, 264 A.2d at 641. See also: Prime Properties Dev. v. Binns, supra (untimely joinder denied where defendant failed to pursue discovery diligently); Edmonds v. MBB, Inc., 384 Pa.Super. 584, 559 A.2d 590 (1989) (late joinder properly denied where defendant failed to conduct prompt investigation and discovery); Riccobono v. Keystone Helicopter Corp., supra (no sufficient cause to permit late joinder where defendant’s failure to pursue discovery diligently resulted in late identification of proposed additional defendant). Instantly, it seems clear that appellant failed to act in a timely and diligent manner to identify the pulley’s manufacturer. The excessive delay in joining Simpson Industries as an additional defendant, therefore, was not to be excused.

Hertz argues that the plaintiffs “will not suffer any prejudice incident to delay” if joinder is permitted. The trial court was not persuaded by this argument, and neither are we. If Simpson Industries were to be joined as an additional defendant, it would be entitled to a reasonable time within which to conduct its own discovery, and this would cause further delay.

Concededly, it would be desirable to litigate all claims in one and the same action. On the other hand, the substantive rights of the defendants have not been affected adversely by the denial of Hertz’s joinder petition. Claims by the defendants against Simpson Industries, whether for contribution or indemnification, will survive the present action and can be pursued following its completion. In the meantime, the adjudication of plaintiffs’ claim should not be delayed further.

Finding no abuse of discretion on the part of the trial court, which denied appellant’s petition for late joinder, the order of the trial court must be, as it is,

Affirmed.