text:
    490 A.2d 912
    Alan J. JENKS v. AVCO CORPORATION, Appellant. Alan J. JENKS, Appellant, v. AVCO CORPORATION.
    Superior Court of Pennsylvania.
    Argued Oct. 17, 1984.
    Filed March 29, 1985.

      Karl K. Baldys, Williamsport, for appellant (at 1982) and appellee (at 1436).
    Charles J. McKelvey, Williamsport, and Francis J. Naphin, Williamsport, for appellant (at 1436) and appellee (at 1982).
    Before WIEAND, DEL SOLE and POPOVICH, JJ.
   POPOVICH, Judge:

This case involves two appeals from an order of the Court of Common Pleas of Lycoming County dismissing the exceptions of both parties and entering a judgment absolute.

Alan J. Jenks, “Jenks”, filed a complaint with the Pennsylvania Human Relations Commission, “HRC”, alleging that Avco Corporation, “Avco”, had unlawfully discriminated against him under the Pennsylvania Human Relations Act, “Act”, by denying equal employment opportunities for the handicapped. Jenks suffers partial paralysis below his waist as a result of an automobile accident which occurred when Jenks was in high school. Within one year of the filing of the complaint before them, the HRC entered a certification conferring jurisdiction in the Court of Common Pleas. 43 P.S. § 962(c). Jenks then filed the instant action seeking that the Court order Avco to hire him, and award him inter alia seniority privileges, back pay, and counsel fees.

The issues of liability and damages were bifurcated, and, following a non-jury trial, the court found Jenks’ handicap not to be job-related and held that Avco must accommodate Jenks by permitting him to use his own hydraulic cart while working. The judge ordered Avco to hire Jenks in either of two specific jobs, specifying Jenks would be subject to the time production requirements and general job discipline requirements applicable to all other employees. Following the litigation of the issue of damages, the trial court entered an award in favor of Jenks in the amount of $25,-108.36 plus costs and 6% interest and stated Jenks should have job seniority and related benefits consistent with a hiring date of August 23, 1977.

Both Avco and Jenks have filed appeals in this court. Avco raises eight issues: (1) whether Jenks can function properly in either of the two jobs; (2) whether the handicap is a job-related handicap; (3) whether Jenks is the best able and most competent applicant; (4) whether the regulations of the HRC are in direct conflict with the express provisions of the Human Relations Act; (5) whether the court-ordered accommodation permitting Jenks to use a hydraulic cart violates the seniority provisions of Avco’s Labor Agreement; (6) whether this same accommodation violates OSHA Standards; (7) whether Avco’s refusal to hire Jenks was justifiable by a legitimate business necessity; and, (8) whether Avco is entitled to a set-off against the back pay wages for an amount equal to Jenks’ earning potential. On the other hand, Jenks’ appeal is concerned only with the amount of his award and he alleges the trial court erred in failing to award him: (1) counsel fees; (2) expert witness fees and costs; (3) damages for embarrassment and humiliation; and, (4) additional prejudgment interest. Jenks further contends the trial judge erred in applying the principle of mitigation of damages.

We begin our analysis by noting that findings of fact by a trial judge are accorded the same weight as a jury verdict and our scope of review is limited to examining whether the findings are supported by competent evidence. Brenna v. Nationwide Ins. Co., 294 Pa.Super. 564, 440 A.2d 609 (1982). We have carefully reviewed the entire record and find the judge’s findings to be so supported.

Avco contends the trial judge erred in finding Jenks to be physically capable, with reasonable accommodation, of performing the work of a bench grinder/polisher in Department 54 and a production inspector in the 50 Series Inspection Area. Although Avco may disagree with the ultimate conclusion, the record does adequately support it. Jenks wears long leg braces with hinges at the knees which lock when he stands and walks. He uses Canadian crutches and walks by placing both of the crutches forward, throwing his lower limbs forward between the crutches and then planting his feet on the floor while tilting his body forward and moving the crutches ahead once again. When walking, he is able to proceed at a speed faster than a normal walking pace. He can go up and down stairs and stand or sit for long periods of time. Although limited in the amount of weight he can lift, the use of the hydraulic cart would remedy this problem. Jenks has a machinist general degree from a community college and job experience. The trial court specifically found him to be quiet and non-abrasive yet determined to earn a living as a machinist.

Avco further argues that Jenks was not the most competent applicant to perform the job. The testimony revealed that after the date of Jenks’ application for employment, Avco did hire others with equal or lesser training, education and experience. Moreover,,the employer has the burden of proving the handicapped individual not to be the best able and most competent to perform the job. General Elec. Corp. v. Commonwealth Human Relations Comm’n., 469 Pa. 292, 365 A.2d 649 (1976). We do not find error in the trial judge’s ruling that Avco did not sustain this burden.

In the alternative, Avco argues that it was not required to hire Jenks because his handicap was a “job related handicap”. Section 5 of the Act provides:

It shall be unlawful practice, unless based upon a bona fide occupational qualification ...:
(a) For any employer because of the ... non-job related handicap or disability of any individual to refuse to hire or employ, or to bar or to discharge from employment such individual, or to otherwise discriminate against such individual with respect to compensation, hire, tenure, terms, conditions or privileges of employment, if the individual is the best able and most competent to perform the services required.
43 P.S. § 955 (emphasis added).

The term “non-job related handicap or disability” is defined under the Act as meaning:

any handicap or disability which does not substantially interfere with the ability to perform the essential functions of the employment which a handicapped person applies for, is engaged in or has been engaged in. Uninsurability or increased cost of insurance under a group or employe insurance plan does not render a handicap or disability job related. 43 P.S. § 954(p).

Avco cites a myriad of cases from various jurisdictions for the proposition that a handicap which prevents a job applicant from performing the essential functions of the job justifies a refusal to hire. We do not dispute this theory. However, when reasonable accommodation is made, the trial court, relying on expert testimony, found that Jenks had the ability to perform the essential functions.

In reaching its conclusion that Avco was required to make reasonable accommodation, the trial court relied, in part, upon various regulations adopted by the HRC and found at 16 Pa.Code Chapter 44. Avco argues such regulations were adopted after Jenks applied for employment and hence do not apply. It is true that our appellate courts have not applied these regulations to cases whose cause of action arose prior to the effective date of the regulations. National Railroad Passenger Corp. v. Pennsylvania Human Relations Comm’n., 70 Pa.Commonwealth Ct. 62, 452 A.2d 301 (1982), and Philadelphia Elec. Co. v. Pennsylvania Human Relations Comm’n., 68 Pa.Commonwealth Ct. 212, 448 A.2d 701 (1982). We find, however, that the Act itself requires that reasonable accommodations be made by an employer.

16,7] We are bound to construe the Act “liberally for the accomplishment of the purposes thereof” [43 P.S. § 962(a) ] and to read it “in a manner which will effectuate its purpose, a task which compels consideration of more than the statute’s literal words.” Pennsylvania Human Relations Comm’n. v. Chester Sch. Dist., 427 Pa. 157, 166-167, 233 A.2d 290, 295 (1967). One purpose of this Act is to “foster the employment of all individuals in accordance with their fullest capacities regardless of their ... handicap.” 43 P.S. § 952(b) (Emphasis added). The reason for this is because the “denial of equal employment ... opportunities because of such discrimination, and the consequent failure to utilize the productive capacities of individuals to their fullest extent, deprives large segments of the population of the Commonwealth of earnings necessary to maintain decent standards of living, and necessitates their resort to public relief.” 43 P.S. § 952(a) (Emphasis added).

Were we to adopt the reasoning that reasonable accommodation is not required, the above purpose would be totally frustrated. For example, any time the disability involved one of the senses or faculties used in the performance of the job, the individual could automatically be denied employment by the very literal interpretation that the handicap itself is “job related”. Under this reasoning, an applicant with a sight impairment could be denied employment because without his corrective lens he was unable to perform the job’s essential functions and an employer would not need to make any accommodation for the wearing of glasses. Such a result surely negates the purpose of fostering full employment. We hold that the Act requires employers to make reasonable accommodations; the proper inquiry then becomes what constitutes reasonable accommodation.

In Southeastern Community College v. Davis, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979), the United States Supreme Court in interpreting a federal statute, the Rehabilitation Act of 1973, held that an “otherwise qualified” handicapped individual is one who can meet all of a program’s requirements in spite of a handicap. However, the Court recognized that technological advances can be expected to enhance future opportunities and “situations may arise where a refusal to modify an existing program might become unreasonable and discriminatory.” 442 U.S. at 413-14, 99 S.Ct. at 2370, 60 L.Ed.2d at 992.

Avco has not been ordered to modify the existing job requirements; in fact, the trial judge’s order makes it clear that Jenks must meet normal production requirements and general job requirements.

An otherwise reasonable accommodation could become an unreasonable one if it imposes an undue hardship on the employer. Strathie v. Pennsylvania Department of Transportation, 716 F.2d 227 (3d Cir.1983). Avco argues Jenks’ accommodation imposes such an undue hardship for a variety of reasons, all of which were considered and rejected by the trial court. For instance, Avco contends the use of a hydraulic cart by Jenks in performing his job will create problems between Avco and the UAW because other employees will demand, under union contract, the same accommodation: i.e., the use of a cart. We agree with the trial court’s rationale that the accommodation has been made for the individual, not the job. The court has simply not created a new job description. Avco further states Jenks’ hydraulic cart will be disruptive and unsafe. We note that the trial court did tour Avco’s facility and observed other similar carts to be in use elsewhere in the plant. The trial judge was aware that some congested areas would have to be cleared to permit a sufficient aisle area but found this could be done “without significant impact.” The trial court specifically rejected other proposals made by Jenks for accommodations because these might impair efficient operation or cause serious labor problems.

Avco similarly argues that Jenks’ use of a hydraulic cart will violate OSHA Standards. An examination of the record reveals the OSHA Standards to which Avco’s expert referred merely require aisles to be kept clear, in good repair and with no obstruction. The trial judge specifically found it would create no undue burden for Avco to create aisles in the areas specified.

The trial court rejected Avco’s theory that it had legitimate justification in its refusal to hire Jenks due to the increased risks he would create for his own safety and the safety of other employees. We recognize the legislature would not have intended the Act to be interpreted as requiring employers to hire a handicapped person where the safety of others would be put in jeopardy. The safety risks in this case, however, are not of the kind such as the Court considered in National Railroad Passenger Corp. v. Pennsylvania Human Relations Comm’n., supra. In that case, Commonwealth Court found that the railroad need not provide statistical information demonstrating the risk but was justified in refusing to hire an individual with an artificial eye. The Court did look at the applicant’s reduced field of vision and considered the qualifications required of a trackman and concluded the applicant’s handicap was “job related.” The safety risks in our case are far more tenuous.

The trial court does concede that there may be some increased risks but finds them to be de minimis. The' court’s conclusion is adequately supported by Jenks’ own safety record and expert evidence concerning the safety records of handicapped workers in general.

The remaining issues all concern the amount awarded to Jenks. We find that the opinion and order of the trial court, dated February 16, 1983, adequately discusses and properly disposes of the issues of mitigation of damages, counsel and expert witness fees, and damages for humiliation and embarrassment. As to Jenks’ contention that the trial court erred by not granting more than 6% interest, we note merely that we can find no abuse of discretion in an application of interest at the legal rate. Furthermore, the trial judge had previously held that Avco’s refusal to hire was based on its good faith belief that either its manufacturing process would be adversely affected or intolerable labor problems would result.

Order affirmed.

      . It is this rather unique procedural background which gives rise to the instant appeal being before the Superior Court rather than the Commonwealth Court.


source: Caselaw Access Project

author: SPAETH, President Judge:

license: Public Domain

text:
    490 A.2d 918
    Linda EICHENLAUB v. Daniel W. EICHENLAUB, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 23, 1984.
    Filed April 4, 1985.

      Arnold H. Cantor, Pittsburgh, for appellant.
    Lee Markovitz, Pittsburgh, for appellee.
    Before SPAETH, President Judge, and BROSKY and OLSZEWSKI, JJ.
   SPAETH, President Judge:

This is an appeal from judgment of sentence for indirect criminal contempt of a protection order entered under the Protection From Abuse Act. The issue is whether the provision of the Act that on a charge of indirect criminal contempt “the defendant shall not have a right to a jury trial,” 35 Pa.C.S. § 10190, violates appellant’s rights under the United States and Pennsylvania Constitutions. We hold that it does not and therefore affirm.

Appellant married appellee on October 5, 1968. The couple had three children. On May 10, 1979, appellee filed a petition for a protection order under the Protection From Abuse Act, supra, alleging that appellant had abused her and the children. (R. at 1) On May 17, 1979, the trial court ordered that appellant be excluded from the marital home for thirty days and that he refrain from abusing appellee and the children. (R. at 3) On January 18, 1982, appellee filed a second petition for a protection order, alleging that appellant had assaulted her and threatened her life. (R. at 4). After hearing, the trial court, on February 17, 1982, ordered that appellant be excluded from the marital home for one year and that he refrain from abusing appellee and the children. (R. at 8)

On June 23, 1982, appellee filed the first of four allegations that appellant was in contempt of the trial court’s second protection order. Appellee alleged that appellant had returned to the marital residence and again assaulted her. (R. at 11) After hearing, at which appellant pleaded guilty, the trial court sentenced him to 90 days probation and a $250 fine. (Slip op. of tr. ct. at 3) On August 4, 1982, appellee filed her second contempt allegation, alleging that appellant had threatened her life. (R. at 13) In lieu of a hearing, the parties, on September 1, 1982, agreed to a consent order by the terms of which appellant agreed that he would not return to the marital home for any reason, and that he would undergo psychiatric counseling, the results of which he would report to the court within 90 days. (R. at 15) Appellee apparently filed her third contempt allegation the following month, with appellant filing a cross allegation. The trial court dismissed both allegations, admonishing the parties to comply strictly with the terms of the September 1, 1982, consent order. (Slip op. of tr. ct. at 3-4) On April 2, 1983, appellee filed her fourth contempt allegation; it arose from an incident earlier that day. According to appellee’s testimony at the contempt hearing, on April 14, 1983, appellant waited in the driveway of the marital residence for her to return from work. When she returned, at 3:00 a.m., he beat her. She sustained two black eyes, bruises to her face, and a fractured sternum. Her injuries required hospitalization for six days, during which time appellant continued to threaten her. (N.T., 4/14/83 at 38-48)

The issue before us arises because at the start of the hearing on appellee’s fourth contempt allegation, the trial court denied appellant’s motion for trial by jury. (R. at 18, N.T. 4/14/83 at 12) At the conclusion of the hearing, the court found appellant guilty of indirect criminal contempt, and sentenced him to ninety days in the county jail. This appeal followed.

Section 10190 of the Protection from Abuse Act provides:

(a) Upon violation of a protection order or a court approved consent agreement the court may hold the defendant in indirect criminal contempt and punish him in accordance with law.
(b) Notwithstanding any provision of the law to the contrary any sentence for this contempt may include imprisonment up to six months or a fine not to exceed $1,000 or both and the defendant shall not have a right to a jury trial on such a charge.

35 P.S. § 10190.

While the Act has been upheld in the face of other constitutional challenges, see Commonwealth v. Allen, 506 Pa. 500, 486 A.2d 363 (1984); Commonwealth v. Zerphy, 332 Pa.Super. 388, 481 A.2d 670 (1984) (double jeopardy); Boyle v. Boyle, 12 D. & C. 3d 767 (1979) (due process), this case is the first challenge to the Act’s denial of a right to a jury trial on a charge of indirect criminal contempt. See, on the enhanced penalties added to the Act in 1978, Comment, “Spouse Abuse: A Novel Remedy for a[n] Historic Problem,” 84 Dickinson L.Rev. 147, 163-64 (1980).

We begin by noting that Section 10190, as is true of any other statutory provision, enjoys a strong presumption of constitutionality. See 1 Pa.C.S. § 1922(3); Hayes v. Erie Insurance Exchange, 493 Pa. 150, 155, 425 A.2d 419, 421 (1981) (“... we must be mindful of the presumption in favor of constitutionality of lawfully-enacted legislation ... [A]n act of assembly will not be declared unconstitutional unless it clearly, palpably and plainly violates the constitution, (citations omitted) Any doubts are to be resolved in favor of sustaining the legislation.”). See also In re Jones, 286 Pa.Super. 574, 429 A.2d 671 (1981). As will appear, we have concluded that Section 10190 does not “clearly, palpably and plainly” violate appellant’s right to a jury trial. Accordingly, we will not declare the section unconstitutional.

In Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491, reh’g denied 392 U.S. 947, 88 S.Ct. 2270, 20 L.Ed.2d 1412 (1968), the United States Supreme Court held that one accused of a “serious,” as opposed to a “petty,” offense is entitled to a jury trial. The Court observed that “the boundaries of the petty offense category have always been ill-defined, if not ambulatory,” and that “the definitional task necessarily falls upon the courts, which must ... pass upon the validity of legislative attempts to identify those petty offenses which are exempt from jury trial.... ” Id. at 160, 88 S.Ct. at 1453. The “most relevant indication ... is the severity of the penalty authorized for its commission.” Frank v. United States, 395 U.S. 147, 89 S.Ct. 1503, 23 L.Ed.2d 162, reh’g denied 396 U.S. 869, 90 S.Ct. 34, 24 L.Ed.2d 123 (1969). The Court emphasized that it is the penalty authorized, not the penalty actually imposed, that controls. Id. at 149, 89 S.Ct. at 1505 (“... the severity of the penalty authorized, not the penalty actually imposed, is the relevant criterion,” for “[i]n such cases, the legislature has included within the definition of the crime itself a judgment about the seriousness of the offense.”). In defining when the penalty authorized is so severe as to require a jury trial, the Court has drawn a “bright line”: the right to trial by jury attaches when one is accused of a crime for which the authorized penalty is more than six months imprisonment. See Baldwin v. New York, 399 U.S. 66, 68-74, 90 S.Ct. 1886, 1887-1891, 26 L.Ed.2d 437 (1970); Frank v. United States, supra 395 U.S. at 150, 89 S.Ct. at 1506. This rule extends to the offense of criminal contempt. Codispoti v. Pennsylvania, 418 U.S. 506, 94 S.Ct. 2687, 41 L.Ed.2d 912 (1974) (court may not impose penalty of more than six months imprisonment for separate instances of criminal contempt arising out of same incident without affording accused right to trial by jury): And see Commonwealth v. Mayberry, 459 Pa. 91, 98, 327 A.2d 86 (1974) (on issue “whether the crime charged, criminal contempt or otherwise, is ‘serious’ [,] [t]he test is clear,” the United States Supreme Court having established six months imprisonment as the “[f]ixed dividing line”) (citations omitted).

Since Section 10190 of the Protection From Abuse Act does not authorize a penalty of more than six months imprisonment, it does not violate appellant’s right to a jury trial, unless the further authorization of “a fine not to exceed $1,000” so enhances the severity of the penalty authorized as to render the offense of violating a protection order a “serious,” instead of a “petty,” offense. Appellant argues that the further authorization of a $1,000 fine does render the offense “serious,” and in support of his argument, he cites the federal definition of a “petty” offense in 18 U.S.C. § 1(3) (“Any misdemeanor, the penalty for which does not exceed imprisonment for a period of six months or a fine of not more than $500, or both, is a petty offense”) and decisions by federal circuit Courts of Appeal adopting this definition as the bright line determining when the right to trial by jury attaches. We are not persuaded by appellant’s argument, or by his citations in support of it.

Our legislature has not enacted a statutory definition drawing a bright line between petty and serious offenses. A summary offense is one punishable by ninety days imprisonment, or a $300 fine, or both. See 18 Pa.C.S. §§ 106(c)(2); 1101(6). This definition, however, is irrelevant to the determination of an accused’s right to a jury trial, for an offense may be more “serious” than a summary offense without being so “serious” as to require a jury trial. See Codispoti v. Pennsylvania, supra; Commonwealth v. Mayberry, supra. If we may not consider our legislature’s statutory definition of a petty offense dispositive, we see no reason why we should consider the federal definition dispositive, especially given the fact that the federal definition was adopted in 1930 for purposes unrelated to the right to a jury trial. See Duke v. United States, 301 U.S. 492, 494, 57 S.Ct. 835, 836, 81 L.Ed. 1243 (1937) (“The evident object of [§ 1(3) ] was to bring about a subdivision of misdemeanors of minor gravity to be known as petty offenses.”) To be sure, if the United States Supreme Court had adopted the federal definition as dispositive, we should be obliged to do the same. However, the Court has instead cautioned that we are not to adopt so rigid an approach.

In Muniz v. Hoffman, 422 U.S. 454, 474, 95 S.Ct. 2178, 2189, 45 L.Ed.2d 319 (1975), the Court held that in determining when a fine will, in and of itself, determine an accused’s right to a jury trial, we are not to accord “talismanic significance” to the definition of petty offenses in 18 U.S.C. § 1(3). The question in Muniz was whether a fine of $10,000 imposed upon a labor union for criminal contempt entitled the union to a jury trial. The Court held that it did not, and in doing so, distinguished between the weight to be accorded, in determining the “seriousness” of an offense, to imprisonment as compared with a fine:

... we cannot accept the proposition that a contempt must be considered a serious crime under all circumstances where the punishment is a fine of more than $500, unaccompanied by imprisonment. It is one thing to hold that deprivation of an individual’s liberty beyond a six-month term should not be imposed without the protections of a jury trial, but it is quite another to suggest, that regardless of the circumstances, a jury is required where any fine greater than $500 is contemplated. From the standpoint of determining the seriousness of the risk and the extent of the possible deprivation faced by a contemnor, imprisonment and fines are intrinsically different. It is not difficult to grasp the proposition that six months in jail is a serious matter for any individual, but it is not tenable to argue that the possibility of a $501 fine would be considered a serious risk to a large corporation or labor union.

422 U.S. at 477, 95 S.Ct. at 2190-2191.

We conclude from this statement that in determining the seriousness of an offense, we are not to be governed by the amount of the fine. While we must of course consider that amount, we are to do so in the context of all of the circumstances, including the nature of the risk the legislature sought to meet and the possible impact of the fine on the accused. See also Frank v. United States, supra, 395 U.S. at 151, 89 S.Ct. at 1506 (sentence of three years probation for criminal contempt did not entitle defendant to jury trial, as probation, while “a significant infringement of personal freedom, ... is certainly less onerous a restraint than jail itself”) Applying Muniz to the fine at issue here, we hold that the maximum authorized fine of $1,000 does not render the offense defined in 35 Pa.C.S. § 10190 a “serious” one.

There can be no question regarding the nature of the risk the legislature sought to meet in enacting the Protection From Abuse Act, of which 35 Pa.S. § 10190 is an integral part. We have described the Act as a “vanguard measure dealing with the problems of wife and child abuse.” Cipolla v. Cipolla, 264 Pa.Super. 53, 55 n. 1, 398 A.2d 1053, 1054 n. 1 (1979). The legislature recognized that existing legal means were inadequate to address these problems. See D. Flynn, “Domestic Relations — The Protection From Abuse Act — Pa.Stat.Ann. tit. 35, §§ 10181-10190 (Purdon Supp.1977),” 51 Temple L.Q. 116, 116-20 (1978); Comment, “Spouse Abuse,” supra, at 153-58; Note, “Relief for Victims of Intra-Family Assaults: The Pennsylvania Protection From Abuse Act,” 81 Dickinson L.Rev. 815 (1977). The primary goal of the Act was therefore not retrospective punishment, but rather “[a]dvance prevention of physical and sexual abuse.” Commonwealth v. Allen, supra 506 Pa. 500, 486 A.2d 363. This purpose is manifest in the emergency provisions of the Act that enable a court to respond quickly and flexibly to advance warnings of abuse. See, e.g., 35 Pa.C.S. §§ 10184-86 (upon ex parte application of victim, court may order spouse immediately excluded from marital home, with hearing to be held within 10 days); § 10188 (during weekend, District Justice may grant any emergency relief authorized by Act). The provision of 35 P.S. § 10190, denying a jury trial to violators of the Act’s protection orders, in such an emergency provision. As the trial court emphasized:

The emergency nature of the judicial process pursuant to the Protection From Abuse Act requires that this Court act swiftly to prevent continued abuse and deal with contempt situations in an expeditious manner lest the violation giving rise to the contempt become a criminal action for homicide. Faced with life and death situations, this Court must utilize its expertise in such matters to enforce its orders without the time delay involved in a jury trial. To afford a jury trial in all instances of indirect criminal contempt for violation of a Protection From Abuse Act order would, in essence, wipe out the legislatively created remedy and enforcement under said Act.

Slip op. of tr. ct. at 11.

See also State v. Tenriero, 183 N.J.Super. 519, 444 A.2d 623, 626 (1981) (Applying all circumstances test of Muniz, court holds that maximum authorized penalty of six months’ imprisonment or $10,000 fine or both for gambling offenses did not require jury trial where penalty was devised by legislature specifically to counter “the unique nature of this type of activity”).

We recognize that the fine at issue here is to be imposed upon an individual, rather than, as in Muniz, a labor union, and that therefore its impact is correspondingly more severe — a factor that several courts have considered significant. See United States v. McAlister, 630 F.2d 772 (10th Cir.1980) (maximum fine of $1,000 for offense of trespass entitled trespasser upon nuclear plant site to jury trial); Girard v. Goins, 575 F.2d 160 (8th Cir.1978) (fines of $2,500 to $10,000 imposed upon individual contemnors entitled them to jury trial); United States v. Hamdan, 552 F.2d 276 (9th Cir.1977) (maximum fine of $1,000 entitled individuals accused of falsifying statements to Immigration and Naturalization Service to jury trial); Douglass v. First National Realty Corp., 543 F.2d 894 (D.C.Cir.1976) (fine of $5,000 may not be imposed upon individual contemnor absent jury trial; court therefore reduces fine to $500). Against this, however, should be set the fact that when the offender is indigent and “through no fault of his own, ... cannot pay the fine,” a court may not constitutionally incarcerate him unless “alternate measures are not adequate to meet the State’s interests____” Bearden v. Georgia, 461 U.S. 660, 672, 103 S.Ct. 2064, 2073, 76 L.Ed.2d 221 (1983). See also Commonwealth ex rel. Benedict v. Cliff, 451 Pa. 427, 433, 304 A.2d 158, 161 (1973) (“[A] state is prohibited from committing its citizens for fines without a reasonable opportunity being afforded to allow them to meet the court’s directive consistent with their respective financial situations.”). No doubt, at some level a fine would become so severe as to entitle the accused to a jury trial. Here, however, were the maximum authorized fine $500 instead of $1,000, no question of constitutionality would arise. See, e.g., Baldwin v. New York, supra 399 U.S. at 70-71, 90 S.Ct. at 1888-1889 (maximum authorized penalty of $500, six months imprisonment or both, imposed without jury trial, cited as example of constitutionally permissible penalty); United States v. Hamdan, supra (authorized maximum penalty of $500 as well as six months imprisonment would be constitutional); Douglass v. First National Realty Corporation, supra (court reduces $5,000 fine imposed without jury trial to constitutional level of $500.) Given the fact that summary disposition is essential to the effectiveness of the Protection From Abuse Act, we do not believe that by authorizing a fine of $1,000, the legislature improperly denied appellant his right to a jury trial. Clearly, the right is not unqualified, which is to say, it need not be provided in every case. In not providing it here, the legislature did not, in our view, “clearly, palpably and plainly” violate the Constitution either of the United States or of Pennsylvania.

Affirmed.

      . Act of Oct. 7, 1976, P.L. 1090, No. 218 § 1, as amended, Act of June 23, 1978, P.L. 513, No. 81, § 1, 35 Pa.S. §§ 10181-90.

      . The record transmitted to us does not contain all the documents to which the trial court refers in its opinion. When the documents do not appear in the record, we rely, in the ensuing statement of facts upon the trial court’s opinion.

      . At least two Courts of Appeal have adopted the definition of petty offense in 18 U.S.C. § 1(3) as to fine as well as imprisonment as the bright line that divides offenses that entitle an accused to a jury trial from those that do not. See United States v. McAlister, 630 F.2d 772 (10th Cir.1980); United States v. Hamdan, 552 F.2d 276 (9th Cir.1977). Two other Courts of Appeal, following the flexible approach prescribed by Muniz v. Hoffman, 422 U.S. 454, 95 S.Ct. 2178, 45 L.Ed.2d 319 (1975), discussed infra, treat the statutory definition as an important but not decisive factor to be considered when deciding whether a jury trial is required. See Girard v. Goins, 575 F.2d 160 (8th Cir.1978); Douglass v. First National Realty Corp., 543 F.2d 894 (D.C.Cir.1976). In Richmond Black Police Officers Ass’n v. Richmond, 548 F.2d 123 (4th Cir.1977), the issue was not decided, for the offense in that case had no statutorily defined maximum penalty and the fines actually imposed, $250 upon each individual contemnor, were below the federal limit. In dictum, the court miscited Muniz as supporting the proposition that " ‘serious contempt’ occurs where the imprisonment exceeds or can exceed six months or, generally, where the fine exceeds $500.” Id. at 127.


author: OLSZEWSKI, Judge: POPOVICH, Judge,

text:
    490 A.2d 923
    COMMONWEALTH of Pennsylvania, Appellant, v. Willie KENDRICK.
    Superior Court of Pennsylvania.
    Argued Dec. 19, 1984.
    Filed April 4, 1985.

      Dara A. DeCourcy, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant.
    Verdell Dean, Pittsburgh, for appellee.
    Before ROWLEY, OLSZEWSKI and POPOVICH, JJ.
   OLSZEWSKI, Judge:

This is an appeal from a lower court order granting a motion to suppress. The Commonwealth contends that the warrantless search of appellee, Willie Kendrick, was lawful and, therefore, the lower court erred in suppressing the evidence. We agree and reverse the lower court’s suppression order.

The facts of this case may be quickly summarized. On January 11, 1983, narcotics detectives received information from an informant regarding the sale of heroin at the residence of Buzzy (Craig Owens) and Mary Emma. The detectives used this information, along with information gathered from their own surveillance of the house, to secure a search warrant for the residence. The warrant was issued and executed on January 14, 1983.

Arriving at the residence, the detectives knocked at the door but received no answer. The detectives knocked again, identified themselves and again received no response. However, one detective testified that he could see people inside the house running past the front door toward the left hand side of the structure. The detectives knocked and identified themselves one final time; again receiving no response, they forcibly entered the residence. Immediately upon entry, the detectives were confronted by a man (later identified as Craig Owens) wielding a shotgun. Fortunately, the gunman retreated into a bedroom without firing at the detectives. The detectives then forcibly entered the bedroom. Inside the bedroom, the detectives found appellee, Owens, and two women; they also found the shotgun under a bed. A thorough search of the residence resulted in the further discovery of three juveniles hiding in a closet in another part of the house.

After securing the premises, the detectives directed the four adults from the bedroom into the living room and told them to lie down on the floor. The police detectives then proceeded to search the four for weapons. As one of the detectives approached appellee to conduct the weapons search, he noticed something black in appellee’s left hand. Although appellee attempted to conceal the object by tucking his hand under his body, the item was seized and the weapons search conducted. The object in appellee’s hand turned out to be a black plastic film vial. The detective immediately opened the vial and found 27 foil packets containing heroin. Appellee was arrested and charged with possession of a controlled substance and possession with intent to deliver.

On May 16, 1983, appellee moved for suppression of the film container and its contents claiming that the items were the product of an unlawful search and seizure. A hearing on the motion to suppress was held on June 28, 1983 before the Honorable George H. Ross. Judge Ross granted the motion holding that the evidence was (1) not subject to the search warrant; (2) not seized pursuant to a Terry frisk; and (3) not within the detective’s plain view. This appeal by the Commonwealth followed.

The Fourth Amendment to the United States Constitution protects “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” The Amendment protects two different interests of the citizen — the interest in retaining the possession of property and the interest in maintaining personal privacy. A seizure threatens the former, a search the latter. Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (Stevens, J., concurring at 1546). The instant case involves both a seizure and a search — the seizure of the vial and the search of the vial revealing its contents.

The Commonwealth maintains that the seizure of the vial was lawful because the vial was in the “plain view” of the officer. See e.g. Commonwealth v. Harris, 479 Pa. 131, 387 A.2d 869 (1978). The first indepth discussion of the “plain view” doctrine appears in the plurality’s opinion in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The plurality concluded that the “plain view” doctrine permits a warrantless seizure of private possessions by police when three requirements are satisfied. First, the police officer must lawfully make an “initial intrusion” or otherwise properly be in a position to view the evidence. Id. at 465-468, 91 S.Ct. at 2037-2039. Secondly, the officer must discover the incriminating evidence “inadvertently”, which is to say, the officer may not “know in advance the location of (certain) evidence and intend to seize it,” relying on the “plain view” doctrine only as a pretext. Id. at 470, 91 S.Ct. at 2040. Finally, it must be “immediately apparent” to the police that the items they observe may be evidence of a crime, contraband or otherwise subject to seizure. Id. at 466, 91 S.Ct. at 2038. In Texas v. Brown, the Supreme Court in another plurality opinion reevaluated the Coolidge requirements. Regarding the third element, that the criminal nature of the evidence be “immediately apparent”, the Court stated:

Decisions by this Court since Coolidge indicate that the use of the phrase “immediately apparent” was very likely an unhappy choice of words, since it can be taken to imply that an unduly high degree of certainty as to the incriminating character of the evidence is necessary for an application of the “plain view” doctrine.

Id. 103 S.Ct. at 1542.

The Brown Court, rejected the “immediately apparent” language of Coolidge, and reaffirmed the rule set forth in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371 at 1380, 63 L.Ed.2d 639 that “the seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity" (emphasis supplied). Thus, after Texas v. Brown, supra, the requirements for application of the “plain view” doctrine are (1) lawful “initial intrusion”; (2) inadvertence; and (3) probable cause to associate the observed property with criminal activity.

Applying these principles, we conclude that the detective lawfully seized the film vial. At the suppression hearing, the court made an express finding that the circumstances surrounding the execution of the search warrant justified a protective weapons search of appellee. Judge Ross stated:

There’s no doubt in my mind under the circumstances under which these police went in there with a shotgun being there, they have the absolute right to make a search of anybody in there to determine whether there were any weapons on them.

Since the detective was conducting a lawful Terry frisk when he first saw the film vial, we conclude that the “initial intrusion” was lawful. See Commonwealth v. Chamberlain, 332 Pa.Super. 108, 480 A.2d 1209 (1984); Illinois v. Andreas, 463 U.S. 765, 103 S.Ct. 3319, 77 L.Ed.2d 1003 (1983). Turning now to the second prong of our Coolidge-Brown analysis, we conclude that the discovery of the film vial was inadvertent. Although the detectives were no doubt aware of the possibility of encountering an in-progress drug sale, there is no indication in the record that they had anything beyond a general expectation. Texas v. Brown, supra 103 S.Ct. at 1543. Our final inquiry is whether the detectives had probable cause to associate the observed object with criminal activity.

Probable cause is a flexible, common-sense standard. As the Supreme Court in Texas v. Brown, supra commented 103 S.Ct. at 1543:

It merely requires that the facts available to the officer would “warrant a man of reasonable caution in the belief,” Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288 [69 L.Ed. 543] (1925), 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, nontechnical” probability that incriminating evidence is involved is all that is required. Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311 [93 L.Ed. 1879] (1949).

Moreover, when examining a particular situation to determine if probable cause exists, a court must consider all factors and not concentrate on any individual element. Furthermore, it is important to focus on the circumstances as seen through the eyes of a trained officer and not to view the situation as an average citizen might. Finally, probable cause does not deal in certainties; rather, a court is faced with the factual and practical considerations of everyday life which affect how reasonable and prudent men act. See Commonwealth v. Trenge, 305 Pa.Super. 386, 395, 451 A.2d 701, 705 (1982); Commonwealth v. Tolbert, 235 Pa.Super. 227, 230, 341 A.2d 198, 200 (1975).

In the instant case, evidence at the suppression hearing revealed a valid search warrant authorizing a narcotics search of the residence. When the detectives attempted to execute the warrant, they were immediately confronted by a gunman. Under these circumstances, it was not unreasonable for the detectives to conclude either that criminal activity was currently taking place, or had taken place just prior to their arrival. Focusing now on appellee, the evidence showed that appellee was present in a house in which the detectives suspected drug trafficking activities. Moreover, when the detectives arrived at the residence to execute the warrant, appellee attempted to avoid police detection by retreating into a bedroom. Failing to avoid detection and once under police custody, appellee then attempted to hide the film vial under his body. In light of the foregoing, we do not hesitate in finding that there was probable cause to associate the concealed object with criminal activity. See Commonwealth v. Chamberlain, supra; Texas v. Brown, supra; Commonwealth v. Gease, 304 Pa.Super. 433, 450 A.2d 989 (1982). We hold, therefore, that the seizure was lawful.

Turning now to the issue of whether the search of the vial, revealing its contents, was lawful. The Commonwealth contends that the detectives had probable cause to open the film vial and examine its contents. We agree.

This Court concludes that under the circumstances of this case, discussed supra, it was not unreasonable for the detectives to open the vial. As this Court stated in Commonwealth v. Spriggs, 224 Pa.Super. 76, 302 A.2d 442 (1973), a similar case involving a film vial:

There is no logical limitation upon the right of police discovering a container upon the appellant that may contain a weapon or contraband to search the container’s contents and seize such evidence____

224 Pa.Superior Ct. at 78, 302 A.2d at 443. Although the Spriggs decision was rendered prior to our Supreme Court’s decision in Commonwealth v. Timko, 491 Pa. 32, 417 A.2d 620 (1980) (contents of leather valise could not be searched incident to arrest absent a separate search warrant), decisions such as Spriggs should not be overlooked. See e.g. Commonwealth v. Rota, 222 Pa.Super. 163, 292 A.2d 496 (1972) (police may search contents of a suspicious package). The Timko decision expressly limited itself to cases “involving a search of luggage or other personal property in which a person has a reasonable expectation of privacy.” 491 Pa. at 39, 417 A.2d at 623. Cases, like the one at bar, involving vials or other “suspicious packages” can be distinguished since there is no reasonable expectation of privacy. See Commonwealth v. Chamberlain, supra (warrantless search of manila envelopes held to be lawful); Texas v. Brown, supra (warrantless search of a green party balloon held to be lawful).

This Court believes that a film vial, a common package for carrying narcotics, is more closely akin to those rare single-purpose containers which “by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance.” Arkansas v. Sanders, 442 U.S. 753, 764-765 n. 13, 99 S.Ct. 2586, 2593-2594 n. 13, 61 L.Ed.2d 235 (1979). Admittedly, a film container has other uses and therefore is not purely a “single-purpose” container. However, given the circumstances of this case, we believe that the trained narcotics detective’s view of the container was tantamount to a view of the heroin itself. See Texas v. Brown, supra (Stevens, J., concurring at 1547). Therefore, we hold that the search of the film vial was lawful.

Since we have concluded that both the seizure of the film vial and the search of its contents were lawful, it follows then that the lower court erred in suppressing the evidence. Accordingly, we reverse the order of the lower court and remand the case for trial.

Order reversed and case remanded for trial. Jurisdiction relinquished.

POPOVICH, J., files a dissenting opinion.

POPOVICH, Judge,

dissenting:

I respectfully dissent. The majority arrives at a conclusion which, taken to its logical extension would ensure the admissibility of contraband secreted in a container which is visible to police even though the container does not imply contraband to the officer; is not, in fact, deduced to be contraband by the officer; and does not resemble a weapon. Even after Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983), the Supreme Court had not abandoned the requirement that application of the “plain view” doctrine is permissible only when there is probable cause to associate the observed property with criminal activity. Probable cause may well be a “flexible, common-sense standard”, nevertheless its importance remains undisturbed as a requirement which must be satisfied even though, as here, an individual is in the company of known drug dealers.

When a motion is made to suppress evidence, “the burden is on the Commonwealth to establish by a preponderance of evidence that the challenged evidence is admissible.” Commonwealth v. Ryan, 300 Pa.Super. 156, 446 A.2d 277, 285 (1982). The Commonwealth had the opportunity to introduce evidence which could have indicated the presence of probable cause arising either from (1) appellee’s behavior or (2) the officer’s view of the film cannister, utilizing the “plain view” doctrine as it has been expanded to embrace the situation where certain containers are characterized as so suspicious as effectively to represent a view of the drugs themselves. (See Commonwealth v. Chamberlain, 332 Pa.Super. 108, 480 A.2d 1209 (1984). The Commonwealth neglected to offer such evidence and thereby failed to sustain its burden.

As the majority notes “[i]t is important to focus on the circumstances as seen through the eyes of a trained officer and not to view the situation as an average citizen might.” In doing so, we are immediately confronted with Detective Ross’ apparent lack of knowledge or suspicion of the vial’s function as a repository for contraband. The court asked Detective Ross:

Could you identify, could you see what this man had in his hand?
[Ross]: Yes. It was a plastic — I wasn’t sure exactly what it was at that time except it was plastic and it was black. (T-28, 29)

Indeed, an officer need not be possessed of a “near certainty” as to the nature of the time; however, here no evidence was presented which tended to show that the officer who noticed the vial had the requisite probable cause which would have allowed him to confiscate it under the “plain view” doctrine. At a minimum, testimony could have been presented to the effect that the officer’s expertise and background encouraged his belief that the vial contained evidence of a crime or that such vials often act as repositories for drugs. Texas v. Brown, supra, Commonwealth v. Chamberlain, supra; Commonwealth v. Trenge, 305 Pa.Super. 386, 451 A.2d 701 (1982).

At oral argument, the Commonwealth all but abandoned the “plain view” argument, concentrating on whether probable cause to search appellee existed based on his alleged concealment of the film vial. Coupled with his conduct in attempting to hide in the bedroom and his association with those named in the warrant, a furtive concealment of the vial could have given rise to probable cause to search or arrest appellee. Commonwealth v. Gease, 304 Pa.Super. 433, 450 A.2d 989 (1982). However, the fact that appellee “put [the cannister] up under his body” does not necessarily indicate an attempt to conceal contraband. Indeed, neither officer involved characterized appellee’s action as suspicious, furtive or in any way indicative of his probable involvement in criminal conduct. This showing was essential to defeat appellee’s motion to suppress.

In Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979) the United States Supreme Court stated that

[In this case] we are asked to construe the Fourth and Fourteenth Amendments to permit evidence searches of persons who, at the commencement of the search, are on “compact” premises subject to a search warrant, at least where the police have a “reasonable belief” that such persons “are connected with” drug trafficking and “may be concealing or carrying away the contraband.”

Id., 100 S.Ct. at 344. The Supreme Court declined the opportunity to sanction such a search. I would affirm the order of court granting appellee’s motion to suppress.

      . The probable cause section of the search warrant stated:
      We the Affiants received information from a confidential and reliable informant in person during the evening hours of 1-11-83. This informant has proven true and correct in the past with information leading to the arrests and convictions of John Hejnosz and Laura Borland both for possession of Heroin. This informant stated that he/she was in the above named residence during the week of 1-3-83 and had observed the above named subjects in the possession of a quantity of Heroin which was packaged in aluminum foil packets. At this time this informant accompanied these Affiants to the above named residence and pointed this residence out to these Affiants. These Affiants observed the residence from 8:00 p.m. thru 9:15 p.m. and observed 12 individuals all black males and females arrive at the residence at different times in pairs and alone. Each of these individuals entered the residence and remained for several minutes then exiting the residence and leaving the area. On 1—12—83 your Affiants arrived at the above named residence at 8:15 p.m. and remained until 9:20 p.m. During this period 4 different black males were observed arriving separately at said residence, entering same, remaining for several minutes and then leaving the area. On 1-13-83 during the morning hours we the Affiants received information by telephone at our office from the same informant who stated that he/she was within the above named residence within the past 36 hours and during this time did observe the above named individuals in the possession of a quantity of heroin packaged in aluminum foil packets and in capsules. This informant states that this substance was being offered for sale and while at the residence did observe the individuals sell a quantity of this substance to an unknown black male who came to the residence for an unknown amount of cash. This informant states that this substance was still present upon his/her leaving the residence. This informant knows heroin from seeing it numerous times in the past and from being an admitted user of drugs. Based upon the past reliability of the informant, the information supplied by the informant and the experience of your Affiants as narcotics detectives we hereby request that a search warrant for the above named address be issued.

      . Appellee’s motion to suppress stated in part.
      6. That the arrest and search of the defendant was illegal, invalid and unconstitutional for the following reasons:
      (a) The arrest was made without warrant and without probable cause.
      (b) The search of the Defendant was not incident to a lawful arrest.
      (c) The search warrant was not properly executed.
      (d) That the arrest and search of the Defendant was otherwise illegal under all the circumstances.

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      . Given the nature of the offenses and the fact that the lower court’s order bars admission of all contraband seized pursuant to the contested search, the Commonwealth is left with no evidence on which to proceed to trial. Therefore, the Commonwealth’s appellate rights have vested in the instant case. Commonwealth v. Evans, 314 Pa.Super. 16, 460 A.2d 350 (1983); Commonwealth v. Lapia, 311 Pa.Super. 264, 457 A.2d 877 (1983).

      . The Commonwealth further maintains that the seizure may be justified as either within the scope of a Terry frisk or as incident to a lawful arrest. Since we find that the item seized was within the "plain view” of the detective, it is not necessary to reach these issues.

      . See U.S. v. Jackson, 649 F.2d 967 (3rd Cir.1981) cert. denied Bailey v. U.S., 454 U.S. 871, 102 S.Ct. 341, 70 L.Ed.2d 176. (Police who entered bar with a search warrant for the bar and arrest warrants for five persons on drug related charges, had probable cause to arrest and search defendant, who was not named in either the arrest or search warrant, when they observed defendant attempt to hide capsules of the type commonly containing heroin in a freezer); Commonwealth v. Moore, 300 Pa.Super. 488, 446 A.2d 960 (1982) (officers observed appellant and companion emerge from an alley in a high crime area at night, leaf through an object, and run at first sight of police. These facts plus permissible inferences from them would lead a man of reasonable caution to suspect criminal activity was afoot.)

        Cf. Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979) (not only was probable cause to search Ybarra absent at the time the warrant was issued, it was still absent when the police executed the warrant. Ybarra made no gestures indicative of criminal conduct, made no movements that might suggest an attempt to conceal contraband and said nothing of a suspicious nature to the police officers); Commonwealth v. Kelly, 487 Pa. 174, 409 A.2d 21 (1979) (when officers had neither been informed of nor observed suspicious conduct or circumstances that would give rise to an inference of possession of a controlled substance, they lacked probable cause to seize from plain view amber prescription vial which contained several foil packets of hashish.)


author: CERCONE, Judge:

text:
    490 A.2d 930
    GENESIS LEASING CORPORATION v. MARYLAND CASUALTY COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 29, 1984.
    Filed April 4, 1985.

      Fred B. Buck, Philadelphia, for appellant.
    Norman M. Lubin, Williamsport, for appellee.
    Before WIEAND, MONTEMURO and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from the order of the trial court denying defendant Maryland Casualty Company’s petitions to join as additional defendants, Stephen E. and Terry B. Schriner, Pennsylvania Power and Light Company, Dairy Equipment Company t/a Boumatic, and Ray D. Shenk t/a Shenk’s Farm Service. We affirm.

Genesis Leasing Corporation initiated the instant cause of action by a complaint against Maryland Casualty Company. Sounding in assumpsit, it alleged that the insurance company was liable under an insurance contract for the loss of Genesis Leasing Corporation’s cattle. The insurer then petitioned to join the aforementioned prospective additional defendants. The defendant insurer defends its non-payment of plaintiff’s claim on the basis that the loss was caused by the negligent care of the cattle, and that negligent care is not within the coverage provided by the insurance policy in question.

Pa.R.C.P. 2252(a) provides for joinder of additional defendants

... who may be alone liable or liable over to [the joining party] on the cause of action declared upon by the plaintiff or jointly or severally liable thereon with him, or who may be liable to the joining party on any cause of action which he may have against the joined party arising out of the transaction or occurrence ... upon which the plaintiff’s cause of action is based.

Our Supreme Court has spoken on the interpretation to be given to Rule 2252(a). In Stokes v. Loyal Order of Moose Lodge No. 696, 502 Pa. 460, 467-8, 466 A.2d 1341, 1345 (1983), the court disallowed joinder.

The complaint against appellee was based on wife plaintiff’s fall on appellee’s premises. The complaint to join appellant was based on appellant’s alleged obligation to insure and defend appellee. We find that this was a distinct transaction and that the complaints did not arise out of the same transaction or occurrence. We are persuaded by the reasoning in Hottner [Hottner v. Boeltz, No. 9405 of 1978 (C.P. Allegheny, filed April 11, 1979) ] that such complaints should not be joined because they do not involve a common factual background or comihon factual or legal questions. The evidence that would establish appellant’s obligation to insure is distinct from the evidence that would establish appellee’s liability.

Thus, the Supreme Court concluded that appellee could bring a separate action for damages caused by wrongful denial insurance coverage. Stokes, supra, 502 Pa. at 467, 466 A.2d at 1345, and cases cited.

In the instant case, the reverse situation exists. The initial complaint is a cause of action for wrongful denial of insurance coverage. It is the insurer who seeks to join parties whose negligence it claims relieves its obligation to cover the losses incurred by plaintiff. Just as in Stokes, supra, where the Court concluded that Rule 2252(a) does not allow a complaint alleging wrongful denial of coverage under a general policy of insurance to be joined in a liability action, we see no reason to permit an insurer defendant to join parties against whom the plaintiffs may have a cause of action in negligence. Nor is such joinder permissible under a theory of possible indemnification or subrogation. The right of subrogation exists only to the extent of actual payment of the subrogee to the insured. Associated Hospital Service v. Pustilnik, 497 Pa. 221, 439 A.2d 1149 (1981).

Order affirmed.

      . Such an order is final and appealable. Commercial Banking Corp. v. Culp, 297 Pa.Superior Ct. 344, 443 A.2d 1154 (1982) Pa.R.A.P. 341(a).


author: HOFFMAN, Judge:

text:
    490 A.2d 932
    Myron KAPLAN, Successor Trustee Under Indenture of Trust dated October 15, 1982, Appellant v. BANKERS SECURITIES CORPORATION.
    Superior Court of Pennsylvania.
    Argued May 22, 1984.
    Decided Feb. 21, 1985.
    Reargument Denied May 3, 1985.

      James D. Crawford, Philadelphia, for appellant.
    Joseph W. Swain, Jr., Philadelphia, for appellee.
    Before: DEL SOLE, MONTEMURO, and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal involves the effect upon a commercial lessee’s liability of an exculpatory clause which shields the lessee from further liability upon the happening of a contingency, where the lessee retains possession of and sublets the leased premises after the happening of that contingency. For the reasons discussed herein, we affirm the judgment entered in the lessee’s favor.

Appellant, Myron Kaplan, is the successor trustee to Bernard G. Segal, trustee under an October 15, 1952 trust agreement for the Trust, the owner of the leased premises in question. Appellee, Bankers Securities Corporation, is a Pennsylvania corporation. On May 17, 1954, Segal, as trustee, and Snellenburgs, an unincorporated division of appellee operating department stores in Pennsylvania, entered into a 30-year lease whereby Snellenburgs leased premises at 23rd Street and Oregon Avenue, Philadelphia, owned by the Trust. The parties also entered into a contemporaneous agreement which included a provision limiting appellee’s liability. The lease was amended and supplemented by later agreements dated August 21 and September 28, 1956; March 18 and July 11, 1957; October 9, 1958; and July 21, 1960.

Pursuant to the lease, the Trust constructed a two-story department store and other improvements on the premises, and Snellenburgs took possession on August 24, 1955. Snellenburgs occupied the premises until March 5, 1962, when it sublet the premises to City Stores Company pursuant to Paragraph 12(a) of the lease, without consultation with or the approval of the Trust.

Snellenburgs thereafter ceased to operate a department store on the premises in question and began to liquidate its assets. Lit Brothers, an unincorporated division of City Stores, purchased all of the goods, inventory and fixed assets used there from Snellenburgs and took possession of the premises.

On or about February 15, 1963, Snellenburgs closed its last department store, ceased to do business anywhere and proceeded to total liquidation.

Paragraph 1 of the May 17, 1954 agreement, which was incorporated into the lease, provided that appellee’s liability would be limited as follows:

Bankers Securities Corporation [appellee] warrants that it has authorized the execution of the annexed lease by “Snellenburgs, A Division of Bankers Securities Corporation,” for occupancy in the conduct of a department store business or for other purposes stated in said lease. Anything in said lease to the contrary notwithstanding, the liability of the Lessee and Bankers Securities Corporation for the performance of the covenants and agreements therein contained and the liability for breach of any said covenants or agreements or howsoever arising and the exercise and enforcement of any remedies afforded under the terms of said lease or under the laws of Pennsylvania, shall be and is hereby limited to assets which would be available to meet such liability as if a separate corporation had executed the said Lease as Lessee and on January 31, 1955 had a net worth of Five Million Dollars which net worth shall be charged with any losses, not restored by subsequent profits, sustained in the operation of the department store business conducted under the name of “Snellenburgs, A Division of Bankers Securities Corporation,” and from which net worth any excess over Five Million Dollars shall, on January 31, 1955, or at the end of any subsequent fiscal year of Snellenburgs, A Division of Bankers Securities Corporation be treated as withdrawn by its shareholders whether or not actually withdrawn, provided no withdrawal shall be made or treated as made which would reduce said net worth below Five Million Dollars at the time of said withdrawal.

(Emphasis added). From January 31, 1954 until March 5, 1962, Snellenburgs sustained losses in excess of five million dollars in the operation of its department store business and said losses were not restored by subsequent profits.

Lit Brothers occupied the premises and operated a department store thereon pursuant to the sublease until 1978; then it discontinued operations, removing all assets and vacating the premises.

After Lit Brothers ceased operations, City Stores, on June 16, 1978, entered into a sublease with Nasha, Inc., t/a Ralph’s Transmissions, Inc., for a portion of the premises consisting of a tire store for a term beginning July 1, 1978 and ending June 30, 1984, as amended by a July 14, 1978 letter agreement. Nasha, Inc. has remained in possession since then.

From March 5, 1962 until May 15, 1979, the Trust continued to collect all rental payments as they became due through its agent, Albert M. Greenfield & Co., Inc.

On May 15, 1979, appellee, in a letter, tendered surrender of possession of the premises to the Trust and informed the Trust that Snellenburgs’ losses exceeded five million dollars. In its May 25 reply letter, the Trust informed appellee that (1) it did not accept the surrender, (2) appellee’s actions constituted abandonment of the premises, and (3) appellee must perform its obligations under the lease.

On February 20, 1980, appellant, as successor trustee for the Trust, commenced an action in assumpsit against appellee, alleging a breach of the lease. Appellee filed an answer and new matter on April 28, 1980, denying any liability and relying upon paragraph 1 of the agreement.

On January 12, 1981, appellee filed a motion for summary judgment. On February 25, appellant filed a cross-motion for summary judgment. The lower court, per Judge Stern, denied both parties’ motions on May 11, 1981. Appellee then filed a motion on June 4 for reconsideration of this order, which appellant answered on June 24. Subsequently, on January 8, 1982, the parties entered into a written stipulation of facts and filed memoranda of law. On October 22, 1982, the lower court, per Judge Prattis, entered an order denying judgment against appellee for money damages. The lower court also entered a supplemental order on November 22, 1982 which granted a summary judgment in appellee’s favor and against appellant. This appeal followed.

In construing a lease, the intention of the parties governs. Pittsburgh v. Charles Zubik & Sons, Inc., 404 Pa. 219, 222, 171 A.2d 776, 778 (1961). An exculpatory clause in a commercial lease must be construed strictly against the party seeking its protection. Bel-Air, Inc. v. Lawrence G.R. Kinney Co., Inc., 441 Pa. 147, 149, 271 A.2d 229, 230 (1970). Here, it is undisputed on appeal that Paragraph 1 of the lease agreement constitutes a valid exculpatory clause. In Stephen Girard Estate Trustees v. Bankers Securities Corp., 425 Pa. 495, 229 A.2d 893 (1967), our Supreme Court interpreted a virtually identical clause in a 25-year commercial lease involving another Snellenburgs department store. That clause provided that the lessee’s liability

shall be and is hereby limited to the assets which would be available to meet such liability if (I) a separate corporation had executed this lease as Lessee, and (II) on the date on which this lease commenced such corporation had a net worth of $10,000,000, and (III) such net worth were [sic] thereafter charged with any losses not restored by subsequent profits sustained in the operation of the department store business conducted under the name “Snellenburgs” or under such name as may be used at any time in the future to identify that business, and (IV) there were treated as withdrawn by such corporation’s shareholders from such net worth all sums in excess of $10,-000,000 whether or not actually withdrawn, provided that no withdrawal shall be treated as having been made which would reduce the said net worth below $10,000,000 at the time of such withdrawal.

In Stephen Girard, the Supreme Court construed the above clause as follows: “The ‘separate corporation' concept embodied in those clauses indicates that the parties intended that no further liability would exist if the stated sum were lost and that the computation would be made as if the lessee were a separate corporation.” Id., 425 Pa. at 499-500, 229 A.2d at 895 (emphasis added). In the instant case, appellant concedes that appellee could have surrendered the leased premises on March 5, 1962 without any liability for further rent. Therefore, the question becomes: What is the effect of appellee’s continuing the lease by subletting to another party?

Appellant, on behalf of the Trust, contends that appellee should have vacated the leased premises rather than subletting after the five million dollars net worth of the “separate corporation” was fully charged with losses not restored by subsequent profits. He argues that, by retaining the premises, appellee became akin to a holdover tenant, lost its right to assert the exculpatory clause, and became liable for rent for the remainder of the lease term. He also argues that, by liquidating Snellenburgs, appellee rendered impossible the occurrence of the contingency upon which its liability depended, namely, that losses would not be restored by subsequent profits. Appellee, however, contends that it was absolutely shielded from liability when Snellenburgs’ losses exceeded five million dollars and that the limitations of Paragraph 1 were not affected by its sublease or by the termination of Snellenburgs’ operations.

We initially find that the contingency in question can be characterized as an “event that terminates a duty” under § 230 of the Second Restatement of Contracts. The Second Restatement uses this term instead of the former term “condition subsequent,” see Restatement of Contracts § 307 (1932), and merely “gives guidance as to when duty under [an existing] contract may be extinguished.” Cambria Savings and Loan Association v. Estate of Gross, 294 Pa.Superior Ct. 351, 355-56, 439 A.2d 1236, 1239 (1982). Thus, Restatement (Second) of Contracts § 230 (1981) provides, in relevant part, that: “(1) Except as stated in subsection (2), [not applicable here] if under the terms of the contract the occurrence of an event is to terminate an obligor’s duty of immediate performance or one to pay damages for breach, that duty is discharged if the event occurs.” Here, the condition in question was the incurrence by appellee of five million dollars in losses not restored by subsequent profits. Upon the happening of this event, appellee was entitled to avoid further liability and to surrender the leased premises. See Stephen Girard Estate Trustees v. Bankers Securities Corp., supra.

After careful consideration, we further find that appellee’s assertion of Paragraph 1 was not affected by its sublease or by its termination of Snellenburgs’ operations. First, the time of appellee’s surrender of the premises after the incurrence of five million dollars in losses was not specified in the agreement because appellee had to wait and see if subsequent profits would restore the losses. The contract does not expressly provide for the immediate surrender or automatic termination of the lease upon appellee’s accumulation of five million dollars in charges. Additionally, we cannot find that appellee has, by subletting rather than vacating the premises, waived his right to assert the exculpatory clause defense. The lease agreement does not provide that appellee’s right to invoke Paragraph 1’s limitations will be defeated by subletting pursuant to Paragraph 12(a), see Paragraph 12(a) of the Lease, or that appellee must surrender the premises upon the termination of Snellenburgs’ operations. Moreover, we note that appellant continued to accept rent payments until 1979, even after the five million dollar mark was passed and the premises were sublet to Lit Brothers. Finally, we reject appellant’s characterization of appellee as a holdover tenant because the original term of the lease had not yet expired or been prematurely terminated prior to May 15, 1979.

Under these circumstances, because appellee lost the “stated sum” of five million dollars, not restored by subsequent profits, we conclude that Paragraph 1 of the agreement shielded appellee from liability and that therefore appellee was entitled to surrender the leased premises on May 15, 1979, prior to the expiration of the original lease term. Accordingly, we affirm.

Affirmed.

      . Paragraph 12(a) of the lease provided that:
      Lessee may at any time after it takes possession of the demised premises:
      (a) Sublease portions of the demised premises for the operation of leased departments, or sublease part or all of the demised premises, but in any event, Lessee shall not be relieved of its obligations hereunder.
      (Emphasis added).

      . Appellee owned approximately 50% of the outstanding stock of City Stores, a Delaware corporation, and therefore could elect the majority of its board of directors.

      . Where a tenant holds over after the landlord has given notice terminating the lease, the landlord has the choice of several options: (1) to treat the tenant as a trespasser and summarily eject him; (2) to treat the tenant as holding over as a tenant by sufferance; or (3) to treat the tenant as holding over under the terms of the lease. Pittsburgh v. Charles Zubik & Sons, Inc., 404 Pa. 219, 223, 171 A.2d 776, 778 (1961).

      . In support of this argument, appellant relies upon the following statement:
      [t]he principle is general that whereever a contract not fully performed on either side is continued in spite of a known excuse, the defense thereupon is lost and the injured party is himself liable if he subsequently fails to perform, unless the right to retain the excuse is not only asserted but assented to.
      5 S. Williston, A Treatise on the Law of Contracts § 688 (3d ed. 1961 & Supp.1984). Cf. Steinman v. La Charty Hotels Co., 355 Pa. 444, 447, 50 A.2d 297, 298 (1947) (burden of establishing waiver or forfeiture of lease provision was upon lessee).

      . Appellant cites Girard Trust Co. v. Tremblay Motor Co., 291 Pa. 507, 140 A. 506 (1928), and Buschman v. Wilson, 29 Md. 553 (1868), in support of his argument that, because the happening of the contingency provided for in Paragraph 1 of the instant agreement determined the lease, appellee should thereupon have surrendered the premises to the Trust as of March 5, 1962. However, appellant's argument presupposes that appellee's subletting the premises on that date affected appellee’s right to invoke the exculpatory clause. Additionally, those cases are distinguishable because, there, the conditions involved definite occurrences in time, e.g., destruction of the demised premises, whereas the time period for the instant event was indefinite, i.e., five million dollars in losses not restored by subsequent profits.


author: WIEAND, Judge:

text:
    490 A.2d 1376
    Janet R. NOLDY, Appellant, v. Charles F. NOLDY, Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 18, 1984.
    Filed March 29, 1985.

      Richard M. Goldberg, Wilkes-Barre, for appellant.
    Paul A. Kelly, Montrose, for appellee.
    Before WIEAND, DEL SOLE and POPOVICH, JJ.
   WIEAND, Judge:

Is a pending action by a wife for support from her husband rendered moot and subject to summary dismissal by the subsequent entry of a decree in divorce? We hold that it is not. A decree in divorce does not preclude the recovery of support for the period intervening between the filing of the complaint in the support action and the entry of a decree in divorce.

Charles F. Noldy and Janet R. Noldy, husband and wife, were separated in April, 1982. A divorce action was commenced by Janet in Wyoming County on July 12, 1982. A separate action for support was commenced by Janet on September 30, 1982 in Wyoming County and thereafter certified to Susquehanna County, where Charles Noldy was residing. A hearing officer in Susquehanna County met with the parties and recommended an order of $150.00 per week. As permitted by local rule, Charles filed an appeal from the hearing officer’s recommendation and requested a de novo hearing before the Court of Common Pleas. This hearing was scheduled for November 16, 1982. The record does not disclose that it was ever held.

The complaint in divorce pending in Wyoming County was amended on January 21, 1983 to include prayers for equitable distribution of marital property, alimony, counsel fees, and costs. A hearing before a Master was held on April 29, 1983, when the parties entered into an agreement and stipulation regarding the manner in which their marital property was to be divided. That agreement was silent regarding the support action then pending in Susquehanna County. On June 24, 1983, the court in Wyoming County entered a divorce decree which incorporated the agreement reached at the hearing before the Master.

The support action was set down for hearing in Susquehanna County on September 22, 1983. At that time, the court granted a defense motion to summarily dismiss the complaint. The sole reason given by the court for its summary dismissal of the action was the divorce decree entered in Wyoming County. Janet appealed.

She argues on appeal that she is entitled to be paid “arrearages” at the rate of $150.00 per week from the date of the hearing officer’s recommendation until the date on which the decree in divorce was entered. This, however, is an incorrect statement of the law. The recommendation made by the hearing officer was advisory only. Cf. Kleinfelter v. Kleinfelter, 317 Pa.Super. 282, 463 A.2d 1196 (1983). The record does not disclose that the recommendation was ever accepted by the court. No order was entered; the court merely ordered the support action to be set down for hearing on November 16, 1982.

It is equally clear, however, that the divorce decree is not a bar to appellant’s action to recover support for the period prior to June 24, 1983, the date on which the parties were divorced. “The duty of spousal support ... arises out of the marital relationship itself and terminates when the marriage ends.” Remick v. Remick, 310 Pa.Super. 23, 35, 456 A.2d 163, 169 (1983). Unless appellant released or forfeited her right of spousal support or was estopped from making a claim therefor, she was entitled to recover necessary support from the date of filing the complaint for support until the date on which the parties were divorced. When the trial court held that an action for such support was barred by the subsequent divorce decree, it fell into error.

The trial court’s memorandum opinion discloses that its dismissal order was based on the divorce decree and not on the property settlement reached at the Master’s hearing in Wyoming County. Our review of the transcript of that hearing, which has been made a part of the record in Susquehanna County, discloses that the matter of support was not then discussed. Not once was reference made to the action for support pending in Susquehanna County. It cannot be said as a matter of law from the present record, therefore, that the agreement to divide marital property was also intended to release appellee from spousal support for the period prior to entry of the decree.

Because the summary dismissal of appellant’s complaint was improper, the order must be reversed. Appellant must be given an opportunity to prove a cause of action for spousal support for the period intervening between commencement of the action and the date of the divorce which terminated her entitlement thereto.

Reversed and remanded for further proceedings. Jurisdiction is not retained.