source: Caselaw Access Project

author: POPOVICH, Judge: JOHNSON, Judge,

license: Public Domain

text:
    566 A.2d 1235
    Gerald A. SNYDER, Appellant, v. PENNSYLVANIA ASSOCIATION OF SCHOOL RETIREES, Appellee.
    Superior Court of Pennsylvania.
    Argued April 18, 1989.
    Filed Dec. 1, 1989.

      Robert S. Mirin, Harrisburg, for appellant.
    Michael L. Solomon, Harrisburg, for appellee.
    Before ROWLEY, POPOVICH and JOHNSON, JJ.
   POPOVICH, Judge:

This case involves an appeal by the plaintiff/appellant, Gerald A. Snyder, from the August 29, 1988, order of the Court of Common Pleas of Dauphin County sustaining a preliminary objection raising a question of jurisdiction. We affirm in part and reverse in part.

Following the presentment of a praecipe for the issuance of a writ of summons and a rule to file a complaint by the plaintiff and the defendants, respectively, a complaint was filed on January 11, 1988. Therein, it was alleged that the plaintiff applied for the position of executive director of the Pennsylvania Association of School Retirees (PASR) after reading about the opening in the PASR's summer newsletter for 1985.

The plaintiff was interviewed for the job in November of 1985, and, within a short time thereafter, was notified that he was not selected to fill the vacancy. It was the plaintiffs belief that the “age” of the prospective candidates (five males to one female) was among the “prime factors” considered by the PASR selection committee, and that PASR “arbitrarily designated sex-female” as a criterion for the job. As a result, on or about February 3, 1986, the plaintiff submitted a complaint to the Pennsylvania Human Relations Commission (PHRC) charging the defendants with age and sex discrimination.

Additionally, the plaintiff averred that during April of 1987, the PASR replaced its executive director without contacting him for the post, or without ascertaining his interest in and/or availability for the position. This, the plaintiff contended, constituted a continuing course of conduct premised upon his age and sex, and that such (in)aetion on the part of the PASR was in “retaliation” for the pursuit of his legal remedies before the PHRC and the federal Equal Employment Opportunity Commission (EEOC). Such an allegation of “retaliation” was added to the plaintiff’s PHRC complaint, as well as to his EEOC file in Philadelphia.

Thereafter, even though the charges had yet to be resolved, the plaintiff notified the PHRC and EEOC by letter that he was “intending] to pursue th[e] matter through litigation in the state court system.” See Complaint, paragraph 21.

Of interest to this Court is the averment in paragraph 22 of the complaint, wherein the plaintiff wrote that he “anticipate^]” that the PHRC would close its file on the pending charges because of his “request” to do so. As such, averred the plaintiff, “[a]ll conditions precedent to the maintenance of th[e instant] litigation [in Common Pleas Court] have been satisfied.” See Complaint, paragraph 23.

In response, the defendants filed preliminary objections raising, inter alia, the jurisdiction of Common Pleas Court to entertain the suit. It did so on the basis that the PHRC was the exclusive means through which the plaintiff could seek to redress his claim(s), unless within one year of filing the complaint the PHRC dismissed it or had not entered into a conciliation agreement involving the plaintiff.

Specifically, the defendants asserted that Common Pleas Court lacked jurisdiction to hear the matter since the plaintiffs amended complaint (alleging “retaliation”) had been issued October 20, 1987, and neither a year had elapsed therefrom nor had the amended complaint been the subject of a conciliation agreement. Further, the defendants argued that the exclusivity of the remedies and procedures of the Pennsylvania Human Relations Act (PHRA) barred the plaintiff from proceeding in Common Pleas Court. The court below agreed, and, by order dated August 29, 1988, granted the defendants’ preliminary objections raising a question of jurisdiction. Accordingly, the complaint was dismissed.

With the record, as reconstructed supra, before the court below, the order of August 29, 1988, was upheld and a timely appeal was filed with this Court.

The central issue posited for our review, which hereinbefore has yet to be addressed on its merits by a Pennsylvania appellate court, is a very straightforward one. The question (as we distill the assertions of the appellant on appeal) is one of whether the PHRC’s failure to act within the statutorily created one year time limit for dealing with complaints filed with it (i.e., by either dismissal or conciliation) availed the complainant/Snyder the option to seek redress of his grievance(s) in another forum; precisely, Common Pleas Court?

Before deciding the merits of the issue posed, we need to discuss the method by which the “jurisdictional” question was resolved by the court below. On this exact point, we have had the occasion to comment upon the procedure to be followed in such a situation in Matter of D.L.S., 278 Pa.Super. 446, 448, 420 A.2d 625, 626 (1980), wherein we stated:

... [a] court’s disposition of preliminary objections is governed by Pa.R.C.P. No. 1028(c) which states: “The court shall determine promptly all preliminary objections. If an issue of fact is raised, the court shall take evidence by depositions or otherwise.” When no issues of fact are raised, the court shall dispose of the preliminary objections as a matter of law on the basis of the pleadings alone. [The] ... preliminary objections raise an issue of law, jurisdiction, without raising any factual issues that would necessitate the reception of evidence. None of the [facts] ... alleged in the petition that are critical to the determination of jurisdiction are disputed____

(Emphasis in original; citations omitted)

Instantly, as in Matter of D.L.S., the pleadings placed sufficient information before the court below for it to determine the subject matter jurisdiction issue.

Since the court below was provided with the essential facts to resolve the question of jurisdiction, and there being no dispute over these facts, the reception of further evidence was unnecessary, and the court properly disposed of the objections in a prompt manner as mandated by Pa.R. Civ.P. 1028(c).

Having dealt with the “procedural” context in which a decision on “jurisdiction” was decided by the court below, our inquiry now turns to the merits of the appellant’s assault on the Common Pleas Court’s subject matter jurisdiction over the matter in dispute.

Our inquiry commences with an examination of the relevant portions of the PHRA, which here consist of subsections (b) and (c); to-wit:

(b) Except as provided in subsection (c), nothing contained in this act shall be deemed to repeal or supercede any of the provisions of any existing or hereafter adopted municipal ordinance, municipal charter or of any law of this Commonwealth relating to discrimination because of race, color, religious creed, ancestry, age, sex, national origin or handicap or disability, but as to acts declared unlawful by section five of this act the procedure herein provided shall, when invoked, be exclusive and the final determination therein shall exclude any other action, civil, or criminal, based on the same grievance of the complainant concerned. If such complainant institutes any action based on such grievance without resorting to the procedure provided in this act, he may not subsequently resort to the procedure herein____
(c) In cases involving a claim of discrimination, if a complaint invokes the procedures set forth in this act, that individual’s right of action in the courts of the Commonwealth shall not be foreclosed. If within one (1) year after the filing of a complaint with the Commission, the Commission dismisses the complaint or has not entered into a conciliation agreement to which the complainant is a party, the Commission must so notify the complainant. On receipt of such a notice the complainant shall be able to bring an action in the courts of common pleas of the Commonwealth based on the right to freedom from discrimination granted by this act.

43 P.S. § 962(b) and (c) (Emphasis added).

All parties concerned, including the court below, rely on Fye v. Central Transportation, Inc., 487 Pa. 137, 409 A.2d 2 (1979), to support their respective, albeit contrary, positions. We find the case instructive, although not dispostive, in regard to the dual issues that have surfaced in the case at bar.

In Fye, because a female employee was denied her job upon returning from maternity leave, a complaint in Common Pleas Court was filed to remedy the situation. However, the complaint was dismissed on the preliminary objections of the defendant/employer, who challenged the jurisdiction of the Common Pleas Court to hear the suit given that the appellant/employee’s prior filing of a complaint with the PHRC and withdrawing the same before the investigation had been completed. On appeal to the Supreme Court, the order was affirmed because of the appellant having filed her case first with the PHRC and having it closed at her request. As a result, the Supreme Court found that neither of the conditions provided by Section 962(c) of the PHRA was met, i.e., the PHRC had neither dismissed the complaint nor entered into a conciliation agreement to which the complainant was a party.

Conspicuously missing from the discussion in Fye, which is of relevance to this Court, is the amount of time that elapsed between the filing of the complaint with the PHRC and the request of the appellant to withdraw it from further review so as to seek relief in Common Pleas court.

We believe that the time-lapse question is crucial to a disposition of the allegations appearing in the appellant’s original and amended PHRC complaints. As stated supra, this subject has not been addressed, albeit in dicta, by the appellate courts of this jurisdiction. We find them to be, nevertheless, insightful as to the course to pursue here.

For example, in Lukus v. Westinghouse Electric Corp., 276 Pa.Super. 232, 419 A.2d 431 (1980), Westinghouse was appealing an order dismissing its preliminary objections to a class action suit brought by Lukus alleging violations of the PHRA.

In responding to Westinghouse’s fourth objection on appeal, in which Lukus’ entitlement to maintain her action because she never received a “right to sue notice” from the PHRC was questioned, this Court, sitting en banc, discussed the rejection of the claim in the following fashion:

43 P.S. § 962(c) provides that “[i]f within one (1) year after the filing of a complaint ... the Commission dismisses the complaint or has not entered into a conciliation agreement to which the complainant is a party, the Commission must so notify the complainant.” The section then goes on to provide that “[o]n receipt of such a notice the complainant shall be liable to bring an action in the courts of common pleas of the Commonwealth based on the right to freedom from discrimination granted by this act.” Westinghouse argues that the phrase “[o]n receipt of such a notice” creates a jurisdictional prerequisite to Lukus’s right to maintain a court action. We believe, however, that the phrase “[o]n receipt of such a notice” refers only to the PHRC’s duty to give a complainant notice of what action it has taken on her complaint. The words “such a notice” refer back to the preceding sentence and incorporate by reference both the Commission’s duty to give notice and the requirement that the notice state either that the complaint has been dismissed or that no conciliation agreement has been entered into. The Legislature’s purpose in requiring “such a notice” was not to limit (by creating a jurisdictional prerequisite) but rather to expand the rights of a victim. Thus, “[o]n receipt of such a notice,” the victim has the unconditional right to seek redress in court whenever the PHRC has failed within a reasonable time, i.e., within a year, to achieve a result satisfactory to the victim.
Were we to accept Westinghouse’s argument, we should impose a useless procedural formality on aggrieved individuals, with the awkward consequence of requiring an aggrieved individual to file two court actions whenever the PHRC violated its duty under Section 962(c) to give the required notice: one action in mandamus, to force the PHRC to give notice; the second action against the alleged discriminator, after the notice is obtained. Compare with Love v. Pullman Co., 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972), and Watson v. Limbach Co., 333 F.Supp. 754 (S.D.Ohio 1971) (federal courts reject interpretation of Title VII which would require compliance with procedural technicalities that would serve no substantive purpose).

276 Pa.Super. at 274-276 & n. 39, 419 A.2d at 453-454 & n. 39 (Emphasis added). The Court also discussed Lukus’ justification for not needing to continue to utilize the expertise of the PHRC given that another employee (a Ms. Eberts) had filed a similar class action against Westinghouse and the PHRC complaint was pending then for more than seven years without an administrative resolution.

Because Lukus might be considered a member of the class represented by Ms. Eberts, we considered it to be a pointless and inadequate requirement to necessitate Lukus’ maintenance of her own complaint with the PHRC as a condition to suing in Common Pleas Court.

Most recently, our Supreme Court quoted with approval the Lukus decision in holding that the PHRC is the initial forum for resolution of discrimination claims in the workplace. See Clay v. Advanced Computer Applications, Inc., 522 Pa. 86, 559 A.2d 917 (1989), wherein the plaintiffs’ failure to proceed to the PHRC to have their claim of wrongful discharge (based on sex discrimination) heard hindered their ability to pursue a judicial remedy.

In the process of reaching this conclusion, the Clay Court made note of Section 962(c)’s exception to the rule of exclusivity. It did so in the following fashion:

It is provided in section 962(c) of the PHRA that the rights of a complainant thereunder shall not be foreclosed from being pursued in the courts, if, within one year after the filing of a complaint, the PHRC dismisses the complaint or fails to enter a conciliation agreement to which the complainant is a party. 43 P.S. § 962(c). The purpose for providing final, rather than initial, resort to the courts was described in Lukus v. Westinghouse Electric Corp., 276 Pa.Super. 232, 276, 419 A.2d 431, 455 (1980) (citation omitted):
The legislative history of section 962(c) shows that the Legislature intended that the PHRC should have exclusive jurisdiction of a complaint alleging violations under the PHRC for a period of one year in order to conduct an investigation of the charges and, if possible, conciliate the matter. 1974 Pa.LegisJ. 6396-98. The reasons the Legislature chose thus to postpone a complainant’s right to seek redress by action in court are clear. The PHRC possesses a “particular expertise” in the area of unlawful discrimination not possessed by the courts by requiring a complainant first to repair to the PHRC’s expertise, thereby minimizing the inefficient use of judicial resources (and its attendant expense and embarrassment of the parties). In other words, the rationale of the principle of exhaustion of administrative remedies applicable to other areas of administrative law, is also applicable to actions brought under section 962(c) of the PHRC.
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Parties initially electing the administrative route [a]re, of course, viewed as being restrained from judicial recourse for a period of one year in accordance with subsection (c)....

522 Pa. at 92 & 95, 559 A.2d at 920 & 921. Even Chief Justice Nix, in his Concurring Opinion, remarked on the time-constraints of the PHRA by writing that, “if the administrative remedy is chosen, civil action is precluded for a period of one year during which the Commission has exclusive jurisdiction. 43 Pa.C.S. § 962(c).” Id., 522 Pa. at 98, 559 A.2d at 923 (Concurring Opinion of Chief Justice Nix)

We garner from the Clay and Lukus decisions support for the proposition that where a complainant has not had his/her grievance resolved by the PHRC within one year of the filing of the same, then the PHRA authorized the grievant to pursue another avenue of recourse; more particularly, the judicial system and this is so even though no “notice” of discontinuance/dismissal is forwarded to the complainant by the PHRC. See Davis v. United States Steel Supply, Inc., 581 F.2d 335, 338 (3rd Cir.1978); Espenshade v. Pennsylvania State University, 556 F.Supp. 131, 133 (M.D.Pa.1983); Webster v. Great American Insurance Co., 544 F.Supp. 609, 610 (E.D.Pa.1982); Lyon v. Temple University of the Com. System of Higher Education, 543 F.Supp. 1372, 1377 (E.D.Pa.1982); Beamon v. W.B. Saunders, 413 F.Supp. 1167, 1175 (E.D.Pa.1976); Clay v. Advanced Computer Applications, Inc., 370 Pa.Super. 497, 506-507, 536 A.2d 1375, 1380 (1988) (en banc), rev’d on other grounds, 522 Pa. 86, 559 A.2d 917 (1989); Householder v. Kensington Mfg. Co., 360 Pa.Super. 290, 293, 520 A.2d 461, 463 (1987), cited with approval in 522 Pa. 86, 559 A.2d 917 (1989); Baker v. Com. of Pa., Pa. Human Relations Comm’n, 75 Pa.Cmwlth. 296, 305, 462 A.2d 881, 886 (1983), aff’d and modified, 507 Pa. 325, 489 A.2d 1354 (1985); Young v. Y & S Candies, 45 Pa.D. & C.3d 115, 119 (Lancaster Cty.1987); Emenheiser v. Colonial Manor Nursing Home, 39 Pa.D. & C.3d 364, 366-367 (York Cty. 1985); see also Aquino v. Sommer Maid Creamery, Inc., 657 F.Supp. 208, 211 (E.D.Pa.1987).

For us to hold otherwise would not be consistent with our interpretation of the law on the subject, and, in passing, we would note that it is not uncommon for the cases before the PHRC to be protracted. See e.g., Baker v. Com. of Pa., Pa. Human Relations Comm’n, 507 Pa. 325, 489 A.2d 1354 (1985) (Three and one-half years of investigation by PHRC before dismissing complaint on a finding of no probable cause); Beaver Cemetery v. Com. of Pa., Pa. Human Relations Comm’n, 107 Pa.Cmwlth. 190, 528 A.2d 282 (1987) (Eight years elapsed between the filing of complaint and conducting of a hearing); Com. of Pa., Dept. of Trans. v. Com. of Pa., Pa. Human Relations Comm’n, 84 Pa. Cmwlth. 98, 480 A.2d 342 (1984) (Three-year delay between the time complaint was filed and the commencement of the first hearing before PHRC).

We in no way wish to point the accusatory finger at the PHRC as being dilatory, for this Court knows quite well how an inundation of case filings can strain the dispute-resolution process. Even so, for whatever reason(s) the plaintiffs case stalled through the investigative machinery of the PHRC, the fact remains that the lapse of more than one year occurred since the filing of the (first) February, 1986 complaint. This afforded, as far as this Court is concerned, the plaintiff with the right to remove the case to another venue for resolution. See Lukus, supra.

Thus, as for the “age and sex” discrimination complaint presented to the PHRC in February of 1986, the plaintiff did not violate the exclusivity provision at Section 962(c) of the PHRA, having waited the required time (one year) before removing it from the jurisdiction of the PHRC. The absence of “notice” from the PHRC of a dismissal of the case is not fatal. See Lukus, supra. The same result does not obtain, however, with regard to the second charge of discrimination filed by the plaintiff.

The plaintiffs initial complaint (of February 3, 1986) was docketed by the PHRC at No. E-35807-D and was grounded on “age and sex” discrimination. On October 20, 1987, the plaintiff sought to “amend” his initial charge by an additional allegation concerning subsequent “retaliation” on the part of PASR (by not hiring him with the removal of the previously hired executive director) for his having sought relief by way of the PHRA.

The PHRC elected to entertain the “retaliation” allegation at docket No. E-42113-D, ie., separate and distinct from the plaintiffs earlier complaint. This fact is borne out by the language appearing at point 9 of the “amended” complaint filed by the plaintiffs attorney and signed by Snyder indicating that it was on counsel’s “recommendation” that the PHRC “initiate another complaint based on retaliation”. Additionally, when the plaintiff - sought to withdraw each case from the PHRC, it responded in letter form, two in number and of even date, acknowledging receipt of the plaintiffs request and its approval as to each separate case file then before the PHRC being withdrawn from its consideration. This did occur, and, therefore, with its withdrawal (No. E-421110-D) at the plaintiffs request, which transpired well before the expiration of the one year time-limit set forth in Section 962(c), we find the teaching of Fye, supra, dictates that the court below is without jurisdiction to deal with that portion of the plaintiffs civil complaint involving the “retaliation” allegation.

Moreover, because proceedings before the PHRC are strictly governed by the statute devised by the Legislature, this renders them wholly distinct from proceedings pursuant to the Rules of Civil Procedure, and decisions thereunder are not dispositive of proceedings before the PHRC. See Murphy v. Corn., 506 Pa. 549, 557, 486 A.2d 388, 392 (1985). This autonomy by the PHRC is reflected in 43 P.S. § 959(g), wherein it is written in relevant part that:

The Commission shall establish rules or practices to govern, expedite and effectuate the foregoing procedure [with regard to complaints filed] and its own actions thereunder.

As amended, December 16, 1986, P.L. 1626, No. 186, § 10 (Supp. 1989-1990).

It is equally clear that the power of the PHRC results from the Legislature’s delegation of such power. As such the limits of that power must be strictly construed. Murphy v. Com., supra. Since the initial 1986 complaint dealt with allegations of “age and sex” discrimination, the second complaint of 1987, labelled “amended” by the plaintiff, was treated by the PHRC as a new charge against the appellee concerning “retaliation” for allegedly the appellant’s submission of charges with the PHRC and the EEOC. This is consistent with the time-frame within which a charge of discrimination must be filed with the PHRC, i.e., no later than one hundred and eighty days after the alleged violation occurred. See 48 P.S. § 959(g) (Supp. 1989-1990).

At bar, we had the passage of almost nineteen months between the two alleged discriminatory acts attributed to the appellee. Thus, under Section 959(g), assigning a separate case number to the “retaliation” charge was permitted by the PHRA.

Accordingly, because the plaintiffs “age and sex” discrimination complaint had been before the PHRC for longer than one year, we hold it was removable by the plaintiff to Common Pleas Court without violating subsections (b) and (c) of Section 962 of the PHRA. As for the “amended” complaint of October, 1987, it being rooted in a “retaliation” charge, and having been before the PHRC for less than one year, it could not be withdrawn and made a part of the plaintiffs civil cause-of-action-complaint without running afoul of our interpretation of Clay, supra, Fye, supra, and Lukus, supra. More importantly, the PHRC, having been created by the Legislature for the specific purpose of developing a body of law to deal with the elusive and often complex body of discrimination law, ie., wanting the PHRC to become the expert in the field so as to expeditiously resolve complaints and free the courts from such litigation, we are not in a position to question its administrative rationale for choosing to assign two different docket numbers to each of the plaintiffs discrimination allegations. See Murphy v. Com., supra.

As a result, the plaintiffs complaint, as it applies to his allegations of “age and sex” discrimination, may continue through the judicial process; whereas the “retaliation” claim, having been prematurely removed from the scope of PHRC scrutiny, cannot be transferred to the civil arena to be heard as a part of the plaintiffs complaint there.

Therefore, the order of the court below granting the defendants’ preliminary objections as to the “age and sex” discrimination charge is reversed. However, we affirm that portion of the same order that would preclude the plaintiff from having his “retaliation” allegation heard in Common Pleas Court.

Order reversed in part and affirmed in part. Jurisdiction is relinquished.

JOHNSON, J., files a dissenting opinion.

JOHNSON, Judge,

dissenting.

The trial court sustained the defendant’s preliminary objections questioning jurisdiction due to plaintiff’s claim before the Pennsylvania Human Relations Commission (PHRC). It found that where the plaintiff had sought relief under the Pennsylvania Human Relations Act (the Act) and thereafter sought to unilaterally close the file with the PHRC, the plaintiff’s failure to exhaust the administrative remedy precluded an action proceeding within the common pleas court. I agree and, therefore, dissent.

In Fye v. Central Transportation, Inc., 487 Pa. 137, 409 A.2d 2 (1979), our Supreme Court found that a claimant’s initial election to seek redress under the Act divested jurisdiction of an equity court of common pleas to entertain the complaint subsequently filed in that court. In examining and rejecting the claimant’s act of terminating the action before the PHRC, the Fye court expressly considered the 1974 amendments to section 12 of the Act. Section 12(c) provided two exceptions to the exclusivity provisions of section 12(b), namely (1) dismissal of the complaint by the Commission, or (2) failure by the Commission to enter into a conciliation agreement to which the complainant is a party. Our Supreme Court concluded that the closing of the PHRC file at the claimant’s request fit neither of the two exceptions, that the perimeters of the terms of the section 12(c) exceptions were expressly unambiguous, and the chancellor’s decree dismissing the state court complaint upon preliminary objections should be, and was, affirmed. Id. at 141, 409 A.2d at 4-5.

Most recently, our supreme court has re-affirmed its holding in Fye v. Central Transportation, Inc., while declaring that the rationale of the principle of exhaustion of administrative remedies is applicable to actions brought under section 12(c), 43 P.S. § 962(c). Clay v. Advanced Computer Applications, 522 Pa. 86, 559 A.2d 917 (1989).

The majority would hold that where a PHRC complaint has not been resolved by the Commission within one year, then the Act authorizes the grievant — without more — to proceed in the common pleas court, even though the matter remains pending before the Commission. On the facts of this case, I would proceed more cautiously. It is not unreasonable to require that one seeking to move away from an exclusive statutory remedy be required to allege a good faith attempt at exhausting that remedy prior to invocation of the ultimate resort of the courts. Clay v. Advanced Computer Applications, supra; Lukus v. Westinghouse Electric Corp., 276 Pa.Super. 232, 276-277, 419 A.2d 431, 455 (1980).

Snyder has the burden of convincing this court that he is entitled to pursue his claims before the court of common pleas. Snyder’s entire pleading with regard to the pendency of his claims before the PHRC is as follows:

12. Thereafter, on or about February 3, 1986, Plaintiff filed a complaint alleging age and sex discrimination (E-35807-D — 031862255) with the Pennsylvania Human Relations Commission (PHRC), which state agency is designated as the “deferral” agency for the federal Equal Employment Opportunity Commission (EEOC). As a “deferral” agency, the PHRC has responsibility for investigating both State and Federal age and sex discrimination charges.

19. a) Plaintiffs initial charge of discrimination was docketed by the PHRC at E-35807-D — 031862255.

b) Subsequently, Plaintiff sought to amend that charge to add the retaliation conduct alleged in this complaint to the charge, the PHRC elected to entertain that retaliation and continuing violation allegation at docket no. E-42113D.

20. Both of the aforementioned charges of age and sex discrimination, on the part of PASR, were timely and dually filed with the EEOC, Philadelphia Regional Office and its designated state agency, the PHRC.

21. By letter, Plaintiff has advised the PHRC, the U.S. Department of Labor and the EEOC of his intention to pursue this matter through litigation in the state court system.

22. Plaintiff anticipates and therefore avers that the PHRC will close its pending charge procedures and charges in this matter based upon Plaintiffs request and indication that this matter will be proceeding .to litigation on the State and pendent Federal claims involving Plaintiff and Defendants which allege unlawful age and sex discrimination in employment.

23. All conditions precedent to the maintenance of this litigation have been satisfied.

Plaintiffs complaint at pp. 4, 6-7. [Emphasis added].

Snyder has pled only that he advised the PHRC of his intent to file charges in the court of common pleas and that he anticipated the closing of his PHRC charges “based upon [his] request and indication that this matter will be proceeding to litigation on the State and pendant Federal claims.” It is unclear what is meant by the word “request” in this context. We do know, however, that Snyder did not make a formal request for the withdrawal of his PHRC charges until after filing his complaint and therefore, his pleading could not refer to a past request that his charges be dropped. On the basis of these pleadings, the majority would permit the complainant to pursue his claims in the court of common pleas.

Clearly, Snyder had not, as of the time that his complaint was filed, been given notice by the PHRC. His complaint contains no averment that he requested any such notice. While I would agree that it is unnecessary to require an aggrieved party to initiate an action in mandamus to compel the issuance of a right-to-sue letter, I am unwilling to afford a complainant who has already invoked the jurisdiction of the PHRC access to the court of common pleas merely upon the averment that the complainant “advised the PHRC” of his “intention to pursue” state court remedies. I should think it not too heavy a burden for the party seeking access to the state courts to show either compliance with the exclusivity provisions of section 12(c) of the Act or some valid reason why compliance (notice) should be excused in any particular case: such as the PHRC’s failure or refusal to issue, upon a valid request, notice that the claims have either been dismissed or have not been the subject of a conciliation agreement. Here, Snyder has failed to do either.

In this case, the trial court’s function was to determine whether the law will bar recovery due to a lack of subject matter jurisdiction. Pa.R.C.P. No. 1017(b)(1). In re Ordinance No. 1-9-86, Logan Township, 116 Pa.Cmwlth. 640, 542 A.2d 1051 (1988). The only pleadings properly before the trial court during consideration of the objections were the Complaint and the Preliminary Objections. The Notice of Appeal was filed September 27, 1988. Although Snyder filed a Motion and Brief in support of a request for reconsideration, the order sustaining the preliminary objection raising a question of jurisdiction also dismissed the complaint. That order was final and appealable.

Snyder did not seek to amend his complaint within ten days of service of the preliminary objections, although permitted to do so. Pa.R.C.P. No. 1028(c). He has attempted to place additional facts before this court on appeal, facts which were not of record at the time the preliminary objections were decided by the trial court. This is improper. When an appeal is from the sustaining of preliminary objections in the nature of a demurrer, the well-pleaded facts of the complaint are admitted, as well as any reasonable inferences that can be drawn from them. LaZar v. RUR Industries, Inc., 337 Pa.Super. 445, 448, 487 A.2d 29, 31 (1985). Here, the propriety of the order sustaining preliminary objections cannot be reviewed on a set of facts different from those submitted to the trial court in the complaint.

I agree with the majority that the complaint and preliminary objections thereto placed sufficient information before the trial court for it to determine the jurisdictional issue. Those operative facts are: (1) Snyder, on February 3, 1986, filed a sex and age discrimination complaint with the PHRC; (2) Snyder sought to amend his complaint to add retaliation conduct; (3) the PHRC assigned a separate docket number to the claim of retaliation and continuing violation; (4) Snyder wrote to the PHRC to tell the Commission of his intention to pursue his claim(s) in the state court system; and (5) at the time the state court complaint was filed, the PHRC had taken no action to dismiss the complaint or enter into a conciliation agreement.

The only issue before us is whether, upon these facts, the law will not permit recovery by Snyder, resolving any doubt in favor of a refusal to sustain the objections. Preliminary objections should be sustained only in cases which are clear and free from doubt. Allstate Insurance Co. v. Fioravanti, 451 Pa. 108, 299 A.2d 585 (1973), In re Estate of Thompson, 332 Pa.Super. 360, 361, 481 A.2d 655, 656 (1984). When we limit our consideration to the facts contained within the complaint, there are no equitable considerations to support a modification of the exclusivity provisions of the Act. Snyder neither averred compliance with 43 P.S. § 962(c) nor alleged any facts suggesting that compliance with § 962(c) should be waived or modified. There may be other circumstances where the exhaustion of administrative remedies might be foregone, but the facts here presented are not that case.

As Mr. Justice Flaherty points out in Clay v. Advanced Computer Applications, 522 Pa. at 95, 559 A.2d at 921, the intended forum for addressing grievances of the sort presented here is the PHRC. Where the proper methods for addressing those grievances have not been exercised, judicial recourse is foreclosed. Id.

For these reasons, I would affirm the order of the trial court which sustained the preliminary objections. I must, therefore, respectfully dissent.

      . Albeit the appellee, the Pennsylvania Association of School Retirees, filed an 8-count response in the form of preliminary objections, only the first and second counts aver the exclusivity of the Pennsylvania Human Relations Commission (PHRC) to hear the “age and sex” discrimination, as well as the “retaliation” charge, lodged by the appellant against the appellee. Since the lower court’s resolution of the matter at issue was premised solely upon the exclusivity of the PHRC to dispose of the dispute, we need address only that issue.

      . The defendants named in this lawsuit consist of the Pennsylvania Association of School Retirees, its officers, board of directors and personnel committee, individually and in their official capacity.

      . The individual selected in 1985 to fill the position of executive director for the PASR was a female less than forty years of age; the plaintiff was fifty-nine at the time. See Complaint, paragraph 14.

      . The PHRC is designated as the "deferral" agency for the EEOC. As a "deferral” agency, the PHRC has the responsibility to investigate both state and federal age and sex discrimination charges. See Complaint, paragraph 12. Also, as a procedural matter, it would appear, as indicated in the plaintiffs amended complaint with the PHRC at page 5, paragraph 6, any PHRC charge is automatically referred to the "EEOC for the purpose of dual filing.” This appears on a "form" document issued by the EEOC for just such amendment(s) to original complaints.

      . Act of October 27, 1955, P.L. 744, § 1 et seq., as amended 43 P.S. § 951 et seq.

      . The lower court’s opinion at footnote 1 reads that the information in the plaintiffs motion for reconsideration and to supplement his request for reconsideration was neither brought to its attention nor ruled upon before the plaintiffs filing an appeal with Superior Court. Thus, the propriety of the dismissal of the appellant’s motion for reconsideration and to supplement his request for reconsideration, having not been addressed by the court below, is deemed not preserved for our review. See Humphries v. Pittsburgh & Lake Erie Railroad Co., 328 Pa.Super. 119, 476 A.2d 919 (1984), cert. denied, 474 U.S. 863, 106 S.Ct. 179, 88 L.Ed.2d 149 (1985).
      From our review of the record, we find that the thrust of the appellant’s appeal is directed toward the August 29, 1988, order of court.

       Our construction also comports with the legislative history of [S]ection 962(c). See 1974 Pa.Legis.J. 6397 (remarks of Rep. Hep-ford): "The language of this bill [enacting Section 962(c) ] clearly spells out that unless the commission dismisses the complaint or has not entered into an agreement with the complainant within 180 days [this period was subsequently changed to one year], the complainant can then proceed anew in the court of common pleas."

      . The Legislature’s broad-based delegation of authority to the PHRC is evident from Section 957, which provides in pertinent part:
      The Commission shall have the following powers:
      (d) To adopt, promulgate, amend and rescind rules and regulations to effectuate the policies and provisions of this act.
      (e) To formulate policies to effectuate the purposes of this act____
      43 P.S. § 957. Further, at 43 P.S. § 959(e), (g) (Supp.1989-1990), the PHRA reads:
      (e) ... The Commission or the complainant shall have the power reasonably and fairly to amend any complaint----
      (g) The Commission shall establish rules or practice to govern, expedite and effectuate the foregoing procedure and its own actions thereunder. * * * Any complaint filed pursuant to this section must be so filed within one hundred eighty days after the alleged act of discrimination.


author: TAMILIA, Judge. DEL SOLE, Judge,

text:
    566 A.2d 1245
    Robert & Amelia WOODS & Moses & Margaret Cook, Appellants v. Jesse ELLERBE & Mary Ellerbe, Robert Woods.
    Superior Court of Pennsylvania.
    Submitted June 27, 1989.
    Filed Oct. 20, 1989.

      Joel M. Lieberman, Philadelphia, for appellants.
    Audrey L. Jacobsen, Philadelphia, for appellees.
    Before DEL SOLE, TAMILIA and CERCONE, JJ.
   TAMILIA, Judge.

This is an appeal of a trial court Order denying appellants’ petition for delay damages. Prior to commencement of trial in this matter, stipulated verdicts were entered in favor of appellants, Robert and Amelia Woods, for $15,000 and Moses and Margaret Cook for $15,000, as against appellee Jesse Ellerbe for an automobile accident in which Ellerbe’s vehicle collided with Woods’ vehicle. Ellerbe carried automobile liability insurance with Prudential Property and Casualty Insurance Company and the verdicts represented the policy limits of $15,000/plaintiff and $30,000/ac-cident.

Appellants petitioned the court for delay damages in the amount of $4269.60 pursuant to Pa.R.C.P. 238. After argument on the issue the trial court denied the petition and appellants now appeal, raising two issues: 1) whether amended Rule 238, effective November 7, 1988, is applicable to the instant case; and 2) whether delay damages are payable where the policy limits have been paid by the insurance carrier.

Citing Ceresini v. Valley View Trailer Park, 380 Pa.Super. 416, 552 A.2d 258 (1988), appellant first argues “AMENDED RULE 238, EFFECTIVE NOVEMBER 7, 1988, IS APPLICABLE TO THE CASE AT BAR.” Appellant’s brief at 7. We agree, as did the trial court which heard oral argument from both sides then did apply new Rule 238 in deciding the delay damage issue against appellant. The trial court specifically set forth the Rule in its Opinion and considered “the threshold issue as to whether the requisite offer has been made, and (2) whether the plaintiff was responsible for specified periods of time during which trial was delayed.” Slip Op., Wright, J., 4/3/89, p. 3. The court then details the specific settlement offers made by defendants, the agreement by the parties to engage in good faith settlement negotiations and the defendants’ conduct during their investigation. Quoting Hall v. Brown, 363 Pa.Super. 415, 420, 526 A.2d 413, 416 (1987), the trial court said, “ ‘It (the insurance carrier) should be permitted to argue before the factfinder that a refusal to settle at a certain point or for a particular amount was not, under the circumstances, a breach of its contractual responsibilities.’ ” Slip Op. at 4. The court concluded, “[t]hus, we find defendant’s conduct in the investigations and settlement negotiations reasonable under the circumstances, causing no delay in the disposition of this case.” Slip Op. at 4. Having reviewed the record and transcripts of this case, we find no error with the conclusion the new Rule 238 applies to this case, although we do not find ourselves in accord with the trial court’s reliance on the reasonableness of the defendants conduct. See Brown, supra (focus is not to be on the reasonableness of defendant insurer’s settlement behavior).

As to appellants’ second issue, the trial court determined appellants could not receive delay damages since Prudential paid the limits of the policy, unless appellants could show Prudential had acted in bad faith. Appellants could not prove bad faith, however, as they waived their right to pursue such a claim at a hearing before the court:

MR. RYAN: [counsel for appellees] And in addition to that, there was also a stipulation that he is not seeking a claim in bad faith against Prudential.
THE COURT: Now, when you say a stipulation, was there an oral stipulation, a written stipulation?
MR. RYAN: There was a stipulation put on the record. MR. LIEBERMAN: [counsel for appellants] Your Honor, the stipulation, if I may, was that I would not pursue any delay damage action [against] the named insured; that any action that I would pursue would be against the insurance company. That was the agreement.
MR. RYAN: But not for bad faith. The only issue— THE COURT: Okay. If you’re agreed not to pursue it against the carrier for bad faith, then you are merely keeping your agreement here—
MR. LIEBERMAN: That’s correct.
THE COURT: —when you say that you’re not pursuing for bad faith.
MR. LIEBERMAN: That is correct, Your Honor.
THE COURT: All right. So that is understood, that any claims for bad faith against the carrier is contrary to the stipulation and is not to be entertained by this Court.
MR. LIEBERMAN: Correct.

N.T. 10/5/88, pp. 20-21.

We agree with the trial court’s analysis. In Brown, supra, we held that an insurance carrier would not be liable beyond the policy limits unless it was proven the carrier breached its duty to act in good faith. We further found that under the Rule, a plaintiff could collect delay damages from the defendant only and there was no provision for shifting liability to the insurer. Appellants, as shown above, have waived the right to pursue a claim for delay damages against appellee, hence, they are precluded from obtaining such an award either from appellee or his insurance company.

Order affirmed.

DEL SOLE, J., dissents.

DEL SOLE, Judge,

dissenting.

With respect for the position of my colleagues in the majority and their proposed decision in this matter, I must dissent. I believe that the focus of both the majority and the trial court in this case with respect to Rule 238 is incorrect.

The automobile accident which resulted in this law suit occurred on August 21, 1982. It was not until September 19, 1987 that representatives of the defendant’s insurance carrier offered their policy limits of $15,000/$30,000 in settlement of the claims of Mr. Woods and Ms. Cook. Certainly, it should not take in excess of five years to determine the value of claims particularly when one is dealing with a policy of minimal limits.

The focus of the trial court and of the majority on the plaintiff’s posture during the settlement negotiations is, in my view, misplaced. Rule 238 is a rule which requires a person or party against whom claims are being made to make a fair offer in settlement of the case. A party should not be heard to complain that its offer was not sufficient for settlement purposes because of the posture of the claimants demand. Where, as here, the offer of $15,000 to each claimant was made more than five years after the accident, the claimants should be entitled to delay damages for the periods specified by Pa.R.C.P. 238(a)(2)(i). The only time that would be excludable for the calculation of delay damages would be that found in Rule 238(b)(1).

The purpose of Rule 238 is to foster reasonable evaluation and settlement offers. In order to avoid the imposition of delayed damages a party must make a written offer which is not exceeded by the verdict by 125%. Until the time that that offer is made, following the initial period permitted by the Rule for appropriate evaluation of the claim, delay damages shall be paid.

I believe that the focus on whether or not the insurance carriers actions were “reasonable” or a product of “bad faith” is immaterial. To hold otherwise would permit defendants, particularly insurers, who have minimum policy limits, to refrain from offering their limits until just prior to trial. This would defeat the purpose of Rule 238. Therefore, I dissent.

      . Although Hall is an interpretation of the old Rule 238, nothing in the new Rule leads us to believe a deviation from the holdings in Hall is necessary or required.

      . We note for the record that even if appellants had not waived the right to properly pursue a claim for delay damages, such a claim would still be without merit as we agree with the trial court’s determination that Prudential did not act in bad faith in handling this claim.


author: PER CURIAM:

text:
    566 A.2d 1247
    COMMONWEALTH of Pennsylvania v. Clifton W. GUEST, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 17, 1989.
    Filed Dec. 5, 1989.

      Douglas M. Johnson, Asst. Public Defender, Collegeville, for appellant.
    Mary M. Killinger, Asst. Dist. Atty., Norristown, for Com.
    Before WIEAND, BECK and MONTGOMERY, JJ.
   PER CURIAM:

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Montgomery County. A jury found the appellant Clifton William Guest guilty of retail theft. We affirm.

On December 17, 1987 at approximately 2:00 p.m., Lower Merion Township Police Officer Urbans observed Guest enter the Bala Cynwyd Shopping Center in a dilapidated green Ford. Urbans, a plain clothes officer patrolling the shopping center, had been instructed to watch for any suspicious activity in the area. At the suppression hearing, he testified that he saw the Ford enter the parking lot, drive around, and then stop suddenly in a traffic lane in front of the Acme Supermarket, thus blocking traffic. Guest got out of the automobile’s passenger seat and walked to a public telephone at the front of the Acme. He did not deposit any money into the telephone; but, he stood holding its receiver for a few minutes. Then he went into the Acme. After approximately thirty-five to forty minutes, he left the store and headed toward the parked Ford.

Officer Urbans noticed a bulge in Guest’s shirt. Guest then got into the automobile and exited the parking lot. Officer Urbans, who was then assisted by another officer, stopped the car. The police officers identified themselves and asked Guest and the driver for personal and vehicle identification. The driver gave Officer Urbans a valid license and registration. Initially, Guest gave a false name to Officer Urbans. After obtaining the name “Clifton Guest” and his date of birth, Officer Urbans checked the National Crime Information Center (“NCIC”) and found that there was an outstanding bench warrant for Guest in Montgomery County. Guest was arrested and searched. Six packages of Acme labeled steaks were found under his shirt and partially hidden in his pants. Guest did not have a receipt for the meat. Acme personnel identified the packages as Acme merchandise and told Officer Urbans that the meat had not been purchased.

After a preliminary hearing, the case was scheduled for trial. Guest filed an omnibus pre-trial motion asserting that the vehicle stop was illegal and the evidence obtained should have been suppressed. Following a hearing, the suppression motion was denied. Guest’s motion for a new trial and in arrest of judgment was also denied. Guest was sentenced to not less than three and one-half years nor more than seven years imprisonment. This appeal followed.

On appeal, Guest asserts that the trial court erred in denying his motion to suppress because Officer Urbans was not justified in executing a Terry stop. Guest’s claim is without merit. An investigatory stop is justified if a police officer observes unusual or suspicious conduct leading him to conclude that, based upon his experience, “criminal activity may be afoot.” Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Commonwealth v. Espada, 364 Pa.Super. 604, 528 A.2d 968 (1987); Commonwealth v. Williams, 287 Pa.Super. 19, 429 A.2d 698 (1981); Commonwealth v. King, 247 Pa.Super. 443, 372 A.2d 908 (1977).

Guest’s conduct and the unusual events that occurred before and after Guest entered the Acme led Officer Ur-bans to suspect that criminal activity may have occurred. His suspicion was based upon the poor condition of the Ford, the unusual motions of the automobile in the parking lot, the sudden stop of the vehicle in front of the Acme, and Guest’s activity around the public telephone. In addition, Guest exited the Acme with an obvious bulge in his shirt.

A police officer is not required to decide the importance of each separate observation in determining whether to initiate an investigatory stop. Commonwealth v. Mayo, 344 Pa.Super. 336, 496 A.2d 824 (1985). Rather, the law requires the officer to consider the totality of the circumstances surrounding his observations in making an investigatory stop. The propriety of an investigatory stop is determined by whether the officer relied on specific and articulable facts, which, when taken together with rational inferences arising therefrom, reasonably warrant a belief that criminal activity is in progress. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Commonwealth v. Jackson, 359 Pa.Super. 433, 519 A.2d 427 (1986); Commonwealth v. Mayo, 344 Pa.Super. 336, 496 A.2d 824 (1985).

Based upon his observations, Officer Urbans had specific and articulable facts to justify the vehicle stop. Therefore, we hold that the investigatory vehicle stop was legal and that the evidence seized from Guest was properly admitted at trial.

Accordingly, we affirm the judgment of sentence.


author: CERCONE, Judge:

text:
    566 A.2d 1249
    Michael EGAN and Susan Egan, H/W v. ATLANTIC RICHFIELD COMPANY, Llewelyn-Davies Associates, Davis Brody & Associates, and Dynamit Nobel of America, Inc. WARREN-EHRET-LINCK COMPANY and Turner Construction Company. Appeal of WARREN-EHRET-LINCK COMPANY. (Two Cases) Michael EGAN and Susan Egan, H/W v. TURNER CONSTRUCTION COMPANY.
    Superior Court of Pennsylvania.
    Argued Sept. 19, 1989.
    Filed Dec. 6, 1989.

      G. Wayne Renneisen, Philadelphia, for Warren-Ehret-Linck Co., appellant.
    James L. McKenna, Philadelphia, for Turner Const,, appellee.
    Before TAMILIA, KELLY and CERCONE, JJ.
   CERCONE, Judge:

This appeal involves two civil actions which were consolidated prior to trial in the Court of Common Pleas of Philadelphia County. The appeal is from an order entered October 31, 1988, and docketed November 16, 1988, denying the motion of appellant, Warren-Ehret-Linck Company (WELCO), for post-trial relief. This order was reduced to judgment in favor of appellees Atlantic Richfield Company and Turner Construction Company (Turner) on November 22, 1988. On November 30, 1988, appellant filed this timely appeal. We affirm.

The facts of the case as set forth by the lower court are as follows:

The Atlantic Richfield Company (defendant, hereinafter ARCO) is the owner of the Chemical Research and Engineering Center located in Newton Square, Pennsylvania. In January, 1978, ARCO entered a contract with Turner (also defendant) to become the general contractor for construction of the ARCO Center. In April, 1979, Turner entered into a contract with Warren-Ehret-Linck Company (additional defendant, hereinafter WELCO), the subcontractor to perform roofing work. Egan, the plaintiff, was an employee of WELCO who did roofing work under the subcontract.

The terms of the contract between Turner and WELCO included an indemnity clause which reads in part:

The subcontractor agrees to indemnify and save harmless Turner, its officers, agents, servants and employees from and against any and all such claims, and further from and against any and all loss, cost, expense, liability, damage or injury ... the Subcontractor agrees to and does hereby assume, on behalf of Turner, its officers, agents, servants and employees, the defense of any action at law or in equity which may be brought against Turner ...

The agreement also required WELCO to obtain, at its own expense, insurance, including bodily injury and property damage.

Michael Egan, while working on the roof of the ARCO Research Center, fell through a skylight 39 feet and sustained injuries.

The plaintiffs brought suit against ARCO, Turner and others. Turner joined WELCO as an additional defendant based on the indemnity clause. On April 7, 1987, notwithstanding its contention that the indemnity agreement was valid, WELCO paid $210,000.00 in insurance proceeds to the plaintiffs.

The present action was filed to determine the enforceability of the indemnity provision under which WELCO must assume the entire liability for the injuries Egan sustained as a result of the employment-related accident described above. The parties agreed that the payment represented a fair settlement for the injuries sustained, and have submitted the above issues to this Court as a question of law alone.

On appeal, appellant raises the following issues: (1) whether the indemnity provision in the contract between Turner and WELCO is void and unenforceable because the provision would allow Turner to exculpate itself from liability for violation of a federal regulation relating to safety at construction sites; and (2) whether the indemnity provision in the contract between Turner and WELCO is void and unenforceable as a contract of adhesion.

Our standard of review on appeal from a judgment entered after a non-jury trial is limited to a determination of whether the trial court’s findings are supported by competent evidence and whether the trial court committed an error of law. Brenna v. Nationwide Insurance Company, 294 Pa.Super. 564, 567, 440 A.2d 609, 611 (1982). “[I]n reviewing the findings of the trial judge, the victorious party is entitled to have the evidence viewed in the light most favorable to him and all the evidence and proper inferences favorable to the successful party must be taken as true and all unfavorable inferences rejected.” Id. citing Courts v. Campbell, 245 Pa.Super. 326, 369 A.2d 425 (1976).

We have thoroughly reviewed the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the trial court and find no merit to the issues raised on appeal. We rely on the opinion of the lower court in this regard and in addition, set forth the following reasoning.

WELCO has argued that Turner, by virtue of the indemnity provisions in its contract with WELCO, effectively circumvented its responsibility for compliance with federal regulation 29 C.F.R. § 1926.105. This, appellant asserts, is contrary to public policy and the indemnity provision is therefore unenforceable.

We find this argument unpersuasive. As appellees have pointed out, the regulations which appellant argues have been circumvented by the indemnity provision require joint responsibility for compliance with the regulations on the part of both contractor and subcontractor. Specifically, the regulations provide:

§ 1926.16 Rules of Construction
(a) The prime contractor and any subcontractors may make their own arrangements with respect to obligations which might be more appropriately treated on a jobsite basis rather- than individually ... In no case shall the prime contractor be relieved of overall responsibility for compliance with the requirements of this part for all work to be performed under the contract.
(b) By contracting for full performance of a contract subject to section 107 of the Act, the prime contractor assumes all obligations prescribed as employer obligations under the standards contained in this part, whether or not he subcontracts any part of the work.
(c) To the extent that a subcontractor of any tier agrees tp perform any part of the contract, he also assumes responsibility for complying with the standards in this part with respect to that part. Thus, the prime contractor assumes the entire responsibility under the contract and the subcontractor assumes responsibility with respect to his portion of the work. With respect to subcontracted work, the prime contractor and any subcontractor or subcontractors shall be deemed to have joint responsibility.
(d) Where joint responsibility exists, both the prime contractor and his subcontractor or subcontractors, regardless of tier, shall be considered subject to the enforcement provisions of the Act.

29 C.F.R. § 1926.16.

The rules of construction contained in 29 C.F.R. § 1926.16 are concerned with the regulations applying the construction safety and health provisions of section 107 of the Contract Work Hours and Safety Standards Act. 40 U.S. C.A. § 333. Section 107 requires as a condition of each contract coming within the purview of the Act that “no contractor or subcontractor contracting for any part of the contract work shall require any laborer or mechanic employed in the performance of the contract to work in surroundings or under working conditions which are unsanitary, hazardous, or dangerous to his health or safety, as determined under construction safety and health standards promulgated by the Secretary [of Labor] by regulation.” 29 C.F.R. 1926.1; 1926.10. Section 1926.105, upon which appellant relies, is one of the safety standards promulgated for enforcement of section 107.

Since the regulation at 29 C.F.R. § 1926.16 provides for joint responsibility for compliance with the safety regulations, the argument that Turner could circumvent its liability for violation thereof is without merit. Clearly, under the regulations, the delegation of a portion of the work to a subcontractor did not relieve Turner, the contractor, of its responsibility for compliance. We therefore agree with the lower court’s assessment that “Turner has not been relieved of any responsibility, and no person has been denied the right to recover for failure to adhere to such regulation [§ 1926.105]. Turner remains liable under this regulation, although its obligation to compensate anyone injured by reason of such violation may be assumed by the indemnitor (WELCO).”

Under § 1926.10, the incentive remained for Turner to comply with § 1926.105, or be subject to the enforcement provisions of the federal Act. Therefore, there is no merit to appellant’s argument that public policy is circumvented by the indemnity provision. The provision is more properly interpreted, as did the lower court, as “little more than insurance protection____” As the court stated in Westinghouse Electric Co. v. Murphy, Inc., 425 Pa. 166, 173 n. 5, 228 A.2d 656, 660 n. 5 (1967), “[a] contract indemnifying one against his own negligence is not necessarily against public policy ... such contracts are useful to parties involved in construction and similar activities as a means of allocating the responsibility for obtaining insurance.” Id.

The argument that the indemnity provision is a contract of adhesion is also without merit. Contracts of adhesion involve agreements between parties who are not of equal bargaining power. Bishop v. Washington, 331 Pa.Super. 387, 480 A.2d 1088 (1984). However, a disparity of bargaining power is not sufficient, by itself, to render a contract invalid. Id., 331 Pa.Superior Ct. at 400, 480 A.2d at 1094; Witmer v. Exxon Corp., 495 Pa. 540, 434 A.2d 1222 (1981).

Contracts of adhesion are often found in the context of insurance contracts. Bishop v. Washington, supra, 331 Pa.Superior Ct. at 400, 480 A.2d at 1094. In such a case, a court may find an individual insured in an inferior bargaining position to the insurance company which issued the policy. The commercial or individual status of the parties is significant in determining whether the court will find a contract of adhesion. Banks Tower Communications, Ltd. v. Home Insurance Co., 590 F.Supp. 1038, 1042 (E.D.Pa.1984). Another factor of significance is awareness on the part of the assertedly weaker party of the contract’s specific terms. Id.; Bishop v. Washington, supra, 331 Pa.Superior Ct. at 400, 480 A.2d at 1094; Ehrenzweig, Adhesion Contracts in the Conflicts of Laws, 53 Colum. L.Rev. 1072, 1075 (1953). The court may also consider whether the exculpatory clause itself serves a reasonable business purpose or imposes an unreasonable financial liability on a person ill-equipped to assume such a burden. Spallone v. Spiegel, 239 Pa.Super. 586, 600, 362 A.2d 263, 271 (1976) (opinion by Spaeth, J.).

In the instant case, the contract was between two commercial parties. Appellant has not contended nor pointed to any evidence of record that it was unaware of the terms of the indemnity provision at the time it entered into the contract. In addition, as we have previously indicated, indemnity provisions of this type in construction contracts are frequently relied upon by the parties as a means of allocating the responsibility of obtaining insurance. Westinghouse Electric Co. v. Murphy, Inc., supra. Thus, they purportedly serve a reasonable business purpose. In addition, WELCO was required to, and did, obtain the necessary insurance to cover its liability under the terms of the contract. This fact points not only to WELCO’s awareness of the contract’s requirements, but also indicates that the settlement to plaintiff Michael Egan did not impose a financial burden upon a party ill-equipped to assume the burden.

It is well established that where parties, sui juris, enter into an unambiguous agreement, with knowledge of the facts, the courts will not relieve them of their contractual obligations because of the questionable wisdom of the bargain. McRoberts v. Burns, 371 Pa. 129, 88 A.2d 741 (1952); Mowry v. McWherter, 365 Pa. 232, 74 A.2d 154 (1950). While making no comment on the wisdom of the bargain to appellant, it is evident to this court that the indemnity provision herein was unambiguous and that appellant had knowledge of its terms and ramifications. In addition, for the reasons stated by the lower court as well as in this opinion, the agreement did not constitute a contract of adhesion. Thus, we find no error in the lower court’s denial of appellant’s post-trial motions and entry of judgment against appellant.

Order of October 31, 1988 reduced to judgment on November 22, 1988 affirmed.

      . The entry of judgment is reflected in the reproduced record.


author: WIEAND, Judge:

text:
    566 A.2d 1253
    PHILMAR MID-ATLANTIC, INC., Appellant, v. YORK STREET ASSOCIATES II, t/a and d/b/a Centre Point Place and Robert J. Waters, Appellees.
    Superior Court of Pennsylvania.
    Argued Aug. 17, 1989.
    Filed Dec. 8, 1989.

      Ronald J. Smolow, Trevose, for appellant.
    John P. Koopman, Langhorne, for appellees.
    Before WIEAND, BECK and MONTGOMERY, JJ.
   WIEAND, Judge:

In this action by Philmar Mid-Atlantic, Inc. (Philmar) against York Street Associates II, t/a Centre Point Place (York Street) and Robert J. Waters, the plaintiff attempted to enforce and recover damages for breach of an alleged agreement to lease space in a shopping center in Warminster Township, Bucks County. Defendants filed preliminary objections in which they asserted that the document relied upon by the plaintiff contained express language that it was not intended to be a binding agreement and was subject to further negotiations regarding the terms of a written lease. The trial court agreed, sustained the preliminary objections in the nature of a demurrer, and dismissed the complaint with prejudice. Plaintiff appealed.

The written document upon which the plaintiff-appellant’s alleged cause of action is based is a letter containing terms to be incorporated into a lease of space for a Kentucky Fried Chicken outlet. The first paragraph of the letter is as follows:

The following represents the terms and conditions that I would be willing to recommend to the partners of York Street Associates II for a new Kentucky Fried Chicken store to be located in our proposed shopping center in Warminster, PA.

It concludes:

This Letter of Intent is non-binding on the parties and is subject to the approval of a mutually satisfactory lease by LANDLORD and TENANT. If such lease is not negotiated and executed by the parties, they shall have no rights against each other.

The letter was signed by an employee of the real estate agency which had conducted negotiations on behalf of the owner, and was approved by the President of Philmar, the appellant corporation.

Lease negotiations subsequently broke down, and the parties did not execute a formal lease as contemplated by the letter of intent. An application for a zoning variance by the defendant: corporation on behalf of the plaintiff-appellant was withdrawn by defendant when it became apparent that the zoning board had objections to construction of a fast food restaurant with drive-through service. York Street thereafter notified Philmar that it would not negotiate further. Philmar then filed suit.

A preliminary objection in the nature of a demurrer admits all well pleaded facts as well as inferences which are fairly deducible therefrom. Wicks v. Milzoco Builders, Inc., 503 Pa. 614, 623, 470 A.2d 86, 91 (1983); Creeger Brick v. Mid-State Bank, 385 Pa.Super. 30, 32, 560 A.2d 151, 152 (1989); McGaha v. Matter, 365 Pa.Super. 6, 8, 528 A.2d 988, 989 (1987). However, it does not admit conclusions of law. Wicks v. Milzoco Builders, Inc., supra; Mudd v. Hoffman Homes for Youth, Inc., 374 Pa.Super. 522, 524, 543 A.2d 1092, 1093 (1988). In the context of a demurrer, moreover, it is not necessary to accept as true averments in the complaint which are in conflict with exhibits attached to the complaint. Schuylkill Prod. v. H. Rupert & Sons, Inc., 305 Pa.Super. 36, 39 n. 2, 451 A.2d 229, 231 n. 2 (1982); Framlau Corp. v. Delaware County, 223 Pa.Super 272, 277, 299 A.2d 335, 338 (1972). A demurrer should be sustained only in cases where the plaintiff has clearly failed to state a claim on which relief may be granted. Wicks v. Milzoco Builders, Inc., supra; Creeger Brick v. Mid-State Bank, supra; Mull v. Kerstetter, 373 Pa.Super. 228, 229-230, 540 A.2d 951, 951 (1988). A demurrer should not be sustained if there is any doubt as to whether the complaint adequately states a claim for relief under any theory of law. Wicks v. Milzoco Builders, Inc., supra; Creeger Brick v. Mid-State Bank, supra.

A mutual manifestation of intent to be bound is an essential element of a contract. Rusiski v. Pribonic, 326 Pa.Super. 545, 551, 474 A.2d 624, 627 (1984); Courier Times v. United Feature Syndicate, 300 Pa.Super. 40, 54, 445 A.2d 1288, 1295 (1982). It is true, as appellant asserts, that where the parties have settled on the terms of an agreement, the intent to later formalize that agreement by writing does not prevent the formation of a contract. Field v. Golden Triangle Broadcasting, Inc., 451 Pa. 410, 418, 305 A.2d 689, 693 (1973), cert. denied, 414 U.S. 1158, 94 S.Ct. 916, 39 L.Ed.2d 110 (1974). Absent a manifestation of an intent to be bound, however, negotiations concerning the terms of a possible future contract do not result in an enforceable agreement. Goldman v. McShain, 432 Pa. 61, 68, 247 A.2d 455, 458 (1968); Kazanjian v. New England Petroleum Corp., 332 Pa.Super. 1, 7, 480 A.2d 1153, 1157 (1984).

In the instant case, the real estate agent’s letter is to the effect that it will recommend certain terms to the owners. Moreover, the terms contained in the letter are not binding and are subject to future approval by the owner who must agree to a lease containing terms which are mutually satisfactory. In the absence of mutual assent to an agreement of lease containing satisfactory terms, there can be no binding contract.

The appellant argues that if the letter of intent did not create a binding contract, it did impose upon the owner a duty to negotiate in good faith. This duty to negotiate in good faith, appellant contends, was breached when the owner unilaterally withdrew the application for a zoning variance and terminated further negotiations.

Pennsylvania courts have not considered whether a letter of intent gives rise to an obligation to negotiate in good faith. The Court of Appeals for the Third Circuit, in Channel Homes Centers v. Grossman, 795 F.2d 291 (3d Cir.1986), concluded that under Pennsylvania law such a contract would arise where: (1) both parties had manifested an intention to be bound by the agreement; (2) the terms of the agreement were sufficiently definite to be enforced; and (3) consideration had been given. The court there enforced a duty to negotiate in good faith, with a view toward a formal lease agreement, because the letter of intent contained an unequivocal promise to negotiate.

Appellant’s contention that the letter of intent in this case created a binding promise to negotiate a formal lease must fail. There is no cause of action to enforce a contract absent a mutual manifestation of assent to be bound. Channel Homes Centers v. Grossman, supra; Kazanjian v. New England Petroleum Corp., supra at 7, 480 A.2d at 1157; Courier Times v. United Feature Syndicate, supra at 54, 445 A.2d at 1295. The letter of intent in this case does not disclose any agreement, not even an agreement to negotiate. Instead, it provided specifically that neither party was to be bound until a mutually satisfactory lease had been negotiated and executed.

Appellant’s final assertion that the trial court abused its discretion by failing to allow the filing of a second amended complaint is also lacking in merit. Where it appears that a defective complaint cannot be cured by amendment, preliminary objections in the nature of a demurrer may be sustained and the complaint dismissed without further leave to amend. Banker v. Valley Forge Insurance Co., 363 Pa.Super. 456, 465, 526 A.2d 434, 438 (1987); Framlau Corp. v. Delaware County, supra, 223 Pa.Superior Ct. at 278, 299 A.2d at 338. The appellant in this case has failed to state a cause of action, and the letter of intent, by its terms, prevents appellant from pleading an enforceable contract. Further amendment, therefore, will not enable appellant to plead a valid cause of action.

The order sustaining defendant’s preliminary objections in the nature of a demurrer and dismissing the complaint with prejudice is affirmed.


author: TAMILIA, Judge.

text:
    566 A.2d 1256
    In re ADOPTION OF T.M., S.M., S.M., B.M., S.M. Appeal of A.M.
    Superior Court of Pennsylvania.
    Argued Sept. 19, 1989.
    Decided Nov. 30, 1989.

      Robert A. DeLuca, Media, for appellant.
    James E. Delbello, Media, for appellee.
    Before TAMILIA, KELLY and CERCONE, JJ.
   TAMILIA, Judge.

This is an appeal from an Order denying appellant’s exceptions to the involuntary termination of her parental rights. The appellant originally lost custody of her five minor children when the Court of Common Pleas of Delaware County adjudicated them dependent on March 25, 1986, and placed them in foster care, following the court’s determination the children were without proper care and control. At that time, appellee Children and Youth Services of Delaware County (hereinafter “CYS”) was awarded legal custody of the children. On February 17, 1987, appellant was arrested for the fourth time on charges of retail theft, and delivered to Delaware County Prison, where she remained until September 28, 1987, when she was transferred to Keenan House, an Allentown, Pennsylvania, drug rehabilitation facility. CYS filed a petition for involuntary terruination of appellant’s parental rights on May 24, 1988, and a hearing in the matter was held before the Honorable Francis J. Catania on September 1, 1988. Between the time of her transfer from Delaware County Prison and the date of the termination hearing, appellant resided continuously at Keenan House. On September 6, 1988, the court entered an Order and Decree terminating appellant’s parental rights. Appellant’s exceptions to the Order, filed September 22, 1988, were denied by the court on December 2, 1988, and this appeal followed.

On appeal, appellant contends the court erred in terminating her parental rights because the evidence presented did not support a finding appellant evidenced a settled purpose of relinquishing her parental claim to her children, nor did the evidence show that she refused or failed to perform her parental duties.

As this Court has stated in prior cases involving an involuntary termination of parental rights, our scope of review is limited to determining whether the hearing court’s Decree is supported by clear and convincing, competent evidence. Absent an abuse of discretion or error of law, the termination Order will stand. Matter of K.L.P., 354 Pa.Super. 241, 511 A.2d 852 (1986).

Applying this narrow standard of review to the instant case, and after a thorough examination of the record, we find the hearing court committed no abuse of discretion or error of law in terminating appellant’s parental rights. The Adoption Act, 23 Pa.C.S. § 2511, states in pertinent part:

(a) General rule. — The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:
(1) The parent by conduct continuing for a period of at least six months either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.
(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.
(5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.
(b) Other considerations. — The court in terminating the rights of a parent shall give primary consideration to the needs and welfare of the child. The rights of a parent shall not be terminated solely on the basis of environmental factors such as inadequate housing, furnishings, income, clothing and medical care if found to be beyond the control of the parent.

The record indicates CYS has had custody of each of the children since March 25, 1986. The record further indicates since that time appellant has visited any of her children only once, on June 19, 1986. As the hearing court wrote in its comprehensive and well-reasoned Opinion:

Pursuant to sub-section a(l) of § 2511, the Court must determine that there is a period of at least six months when the parent has evidenced a settled purpose of relinquishing parental claim. It appears quite clear from the record, that from June of 1986 until at least September of 1987, when she entered Keenan House, [appellant] did evidence such a settled purpose. The evidence is not as clear after September of 1987. In determining whether a parent’s absence and/or failure to support a child while incarcerated constitutes abandonment of the child and warrants termination of parental rights, inquiry must be made as to whether the parent has utilized the resources at his or her command while in prison to continue a close relationship with the child and if a parent does not exercise reasonable firmness in declining to yield to obstacles, his parental rights may be forfeited. McCray Adoption, 460 Pa. 210, 331 A.2d 652 [1975]. The Court notes that there is a period of abandonment in excess of six months prior to [appellant’s] incarceration in February of 1987 and another period, once again in excess of six months, subsequent to her incarceration. The evidence at the hearing was quite clear that there was no attempt at communication during the entire period of time from June of 1986 to September of 1987. On this basis alone, the Court found sufficient evidence to terminate pursuant to § 2511(a)(1).

Slip Op., Catania, J., 4/13/89, pp. 6-7.

Appellant made initial attempts to communicate with her children after she began treatment for her long-term drug addiction. However, a parent’s extended periods of disinterest in her children will not be washed away by a minimal renewal of some interest in those children now. Adoption of Baby Boy A., 512 Pa. 517, 517 A.2d 1244 (1986). Nor can we accept appellant’s contention her emotional, drug-related problems justified her failure to perform her parental duties, or at least make more of an effort to do so.

Parental duty does not require the impossible, but may encompass that which is difficult and demanding. A parent may not yield to every problem, but must act affirmatively, with good faith interest and effort, to maintain the parent-child relationship to the best of his or her ability, even in difficult circumstances.

In re Burns, 474 Pa. 615, 626, 379 A.2d 535, 541 (1977).

Therefore, we reject appellant’s explanation as to why she did not make more efforts related to her parental obligations to her children, and find the evidence presented clearly and convincingly demonstrates appellant’s settled purpose of relinquishing her parental claim to her children, and her refusal or failure to perform her parental duties, pursuant to section 2511(a)(1).

Appellant also argues the court erred in finding appellant was incapable and neglectful in performing her parental duties and the said incapacity and neglect could or would not be remedied within a reasonable period of time. As stated above, we find ample evidence of appellant’s incapacity and neglect in performing her parental duties. The issue, then, is whether, within the strictures of sections 2511(a)(2) and 2511(a)(5), the presently intolerable situation can be remedied within a reasonable period of time. We do not believe such a resolution can be made by appellant, with or without the assistance of CYS.

Clearly, appellant has a serious drug problem which contributed in no small measure to her criminal activity and parental neglect. While appellant is now in treatment for her addiction and hopeful she will be able to place her life in order, a successful outcome is still problematical. Moreover,

Once the statutory grounds for involuntary termination of parental rights have been clearly shown, it is the child’s welfare that must be considered. See Adoption of David C., [479 Pa. 1,] 387 A.2d [804] 812 [1978]. In considering the interests of these children, the Court sees that they have been involved in placement for most of their young lives____ At some point, these children should be given a chance. They should not have to continue to wait for the mother to progress through various programs to the point where she is ready to start to consider parent training.

Slip Op. at 9 (emphasis in original).

Contrary to the assertions of appellant, we find the conclusions of the court are supported by the record and testimony, notwithstanding some testimony appellant could be a capable parent. While the court considered the testimony favorable to appellant, it found far more persuasive the testimony of both Linda Joseph, appellant’s CYS caseworker, and Richard Roeder, a psychologist who interviewed appellant, that the conditions which led to the placement of appellant’s children with CYS continue to exist, that appellant has not remedied those conditions sufficient to parent her children and that her parental rights should be terminated.

One final observation, which we find pertinent in consideration of the best interest of the children, concerns whether or not reasonable prospects for placement of the children in adoptive homes exist. While this is not a statutory requirement in termination cases where the issue does not involve one parent attempting to terminate as to another parent, see In re Male Infant B.E., 474 Pa. 139, 377 A.2d 153 (1977), as stated in In re Burns, 474 Pa. 615, 379 A.2d 535 (1977),

An agency bringing a petition for termination of parental rights has as its continuing concern the eventual placement of the child for adoption when it finds a suitable parent or parents. Therefore, when a child is in the custody of an approved adoption agency, it is not necessary that adoption be imminent before the agency may petition to have the parents rights terminated.

Id., 474 Pa. at 627, 379 A.2d at 541, quoting In re Male Infant B.E., supra, 474 Pa. at 143, n. 5, 377 A.2d at 155, n. 5.

While this is not an evidentiary requirement, we find it reassuring and the better practice to have as a matter of record, the prospects and activities pursued for the permanent placement of the children. In this case, all the children are in pre-adoptive homes and will be adopted by those families (Record supplement, 10/18/89). In this fashion, we have the necessary assurance the agency is pursuing its responsibility for permanent placement of the children and that they will not remain rootless in temporary placement throughout the years of their minority.

Based on the foregoing analysis, we dismiss appellant’s final claim the court erred in failing to give primary consideration to the needs and welfare of her children. Although termination of parental rights should be a last resort for the judicial system, based on appellant’s past history, present status and future prospects for proper parenting, such an adjudication is now mandated.

Order affirmed.

      . Appellant is the natural mother of her five children, all of whom were born out of wedlock — S.M. and S.M. (twins) born 6/11/84, T.M. born 12/24/78, S.M. born 11/8/82, and B.M. born 8/9/85. The parental rights of all of the putative natural fathers have been terminated already by the Court of Common Pleas of Delaware County.