author: JOHNSON, Judge: HOFFMAN, Judge,

text:
    619 A.2d 735
    COMMONWEALTH of Pennsylvania v. Nathanial PARKER, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 27, 1992.
    Filed Jan. 4, 1993.

      Samuel C. Stretton, West Chester, for appellant.
    Stuart Suss, Asst. Dist. Attorney, West Chester, for Com., appellee.
    Before BECK, JOHNSON and HOFFMAN, JJ.
   JOHNSON, Judge:

In this case, we are asked to determine whether the trial court erred in failing to suppress a tape seized by police from the automobile of Nathanial Parker. We conclude that the search and seizure violated Parker’s rights under Article 1, Section 8 of the Pennsylvania Constitution as well as under the Fourth Amendment of the United States Constitution. We, therefore, reverse the judgment of sentence and remand for a new trial at which the Commonwealth will not be permitted to introduce the illegally seized evidence.

In the present ease, Officer Milligan and his partner stopped Parker as he drove his car out of a gas station, across a street, and into a parking lot. Milligan suspected that Parker did not have a valid driver’s license. N.T., April 30, 1991, at 13. Milligan testified that, after stopping Parker and verifying that Parker was operating his vehicle without a license, he asked Parker if he could search the vehicle for “drugs or other contraband” (N.T., April 30,1991, at 15) or for “drugs and other violations of law” (N.T., April 30, 1991, at 32). Milligan’s reason for requesting a search was that he had assisted in arresting Parker for a drug offense at some time in the past. N.T., April 30, 1991, at 22-23. While Milligan testified that Parker consented to having his vehicle searched, no consent form was executed prior to the search of the automobile. Shortly after Parker was stopped by Milligan, State Trooper Kern and another state trooper arrived at the scene. There were a total of four armed police officers at the scene when Parker allegedly consented to the search of his automobile.

Kern conducted the search of the automobile, which revealed no drugs. During the search, Kern found a cassette tape recorder, containing a tape, under the driver’s seat of the car. Kern confiscated the tape, but left the tape recorder in Parker’s car. Kern testified that he was unaware that possession of a tape recorder could be considered illegal. N.T., May 1, 1991, at 100.

Parker was charged with violating 18 Pa.C.S. § 5703, Pennsylvania’s Wiretapping and Electronic Surveillance Act. A jury trial was held, following the denial of Parker’s motion to suppress, at which Parker was found guilty. Post-trial motions were denied, and Parker was sentenced to a 16 to 30 month term of imprisonment. This timely appeal follows.

Parker alleges that the trial court erred in failing to suppress the tape because his consent to search his vehicle was not voluntarily made. Parker further contends that even if this Court finds his consent to be valid, the police seizure of the tape was beyond the scope of the requested consent, and, beyond the parameters of the plain view doctrine. Additionally, Parker maintains that the playing of the tape was a separate search which, regardless of the legality of the seizure of the tape, required the police to obtain a search warrant prior to playing the tape. Parker also raises issues of error allegedly committed by the court during trial. However, as we find that a new trial is required, based on the trial court’s failure to suppress the tape, we need not address the other issues Parker presents on appeal.

In reviewing a trial court’s denial of a motion to suppress, we must determine whether the record supports the factual findings of the suppression court, as well as determine the reasonableness of the inferences and legal conclusions drawn therefrom. Commonwealth v. Lemanski, 365 Pa.Super. 332, 529 A.2d 1085 (1987). We will consider the evidence of the prosecution and so much of the evidence of the defense as, read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Kean, 382 Pa.Super. 587, 556 A.2d 374 (1989) appeal denied, 525 Pa. 596, 575 A.2d 563 (1990). It is in light of this standard that we review this case.

The application of the exclusionary rule, which is the subject of this appeal, can be based on either Article 1, Section 8 of the Pennsylvania Constitution or on the Fourth Amendment of the United States Constitution. Both provisions have been interpreted as protecting those zones where one has a reasonable expectation of privacy. Kean, supra, 382 Pa.Super. at 595, 556 A,2d at 378. Article 1, Section 8 of the Pennsylvania Constitution provides:

Section 8. The people shall be secure in their persons, house, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.

Although the guarantees of security against unreasonable searches and seizures in the Pennsylvania Constitution predate those contained in the United States Constitution, the guarantees under the Fourth Amendment of the United States Constitution are similar. Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991). The Fourth Amendment to the United States Constitution states:

The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated, and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The protections of individual privacy against unreasonable government searches and seizures under Article 1, Section 8 of the Pennsylvania Constitution are more expansive than those afforded under the Fourth Amendment of the United States Constitution. See e.g. Edmunds, supra; Commonwealth v. Melilli, 521 Pa. 405, 555 A.2d 1254 (1989); Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457 (1983). The United States Supreme Court’s interpretations of Fourth Amendment guarantees do not bind this Court in reaching conclusions regarding the protections provided under Article 1, Section 8 of the Pennsylvania Constitution. Commonwealth v. Beauford, 327 Pa.Super. 253, 475 A.2d 783 (1984), appeal denied, 508 Pa. 319, 496 A.2d 1143 (1985). However, we conclude that under both state and federal constitutional provisions, the search and seizure in this case was unconstitutional.

It is uncontested that Milligan had reasonable and articulable grounds for stopping Parker, as he suspected that Parker was driving while his license was suspended. See e.g. Commonwealth v. Whitmyer, 415 Pa.Super. 393, 609 A.2d 809 (1992). However, in order to justify detaining Parker for further questioning, Milligan must have been able to point to specific and articulable facts that, taken together with the reasonable inferences from those facts, reasonably indicate that criminal activity might have been afoot. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The stopping of an automobile or even the arrest of the driver of a motor vehicle for an ordinary traffic offense does not, without more, permit a warrantless search of the vehicle. Commonwealth v. Tranzo, 404 Pa.Super. 15, 589 A.2d 1147 (1991) citing Commonwealth v. Dussell, 439 Pa. 392, 266 A.2d 659 (1970).

Milligan stated that his sole reason for requesting a search of Parker’s vehicle was that he knew Parker had been previously arrested for a drug violation. Milligan did not articulate any facts which suggested that Parker had committed any offense at the time of the search, other than operating his vehicle without a license. Without articulable grounds to suspect the presence of drugs or other contraband, Milligan’s authority was limited, by both the Pennsylvania and the United States Constitutions, to issuing a citation to Parker. Commonwealth v. Lopez, 415 Pa.Super. 252, 609 A.2d 177 (1992). Despite the fact that there were no objective circumstances to support a suspicion that “drugs or other contraband” were hidden in the vehicle, Milligan detained Parker, requesting permission to search his vehicle. Any continued detention of Parker, after Milligan explained and issued the traffic citation, constituted an unreasonable seizure in violation of the Fourth Amendment, tainting all evidence resulting therefrom. Id. at 262, 609 A.2d at 182.

The Commonwealth contends Lopez does not apply, in the present case, because Parker was unable to drive away from the scene of the police stop due to his suspended license. This argument is specious. In Lopez, we held that the police may only detain a driver and request a search if there are.reasonable and articulable grounds to suspect criminal activity or contraband. We did not hold there, and we refuse to hold here, that if the driver may not drive away from the scene, detention and search then become permissible.

In this case, while the initial police stop was proper, the continued detention of Parker was a seizure under the Fourth Amendment. Commonwealth v. Brown, 388 Pa.Super. 187, 565 A.2d 177 (1989). Thus, the resulting search was the product of that seizure. The police detention of Parker, after the issuance of a citation for a traffic violation, was improper. Therefore, the products of the improper detention and search should have been suppressed.

However, even if we were to conclude that Parker voluntarily consented to a search of his automobile for “drugs and other contraband” or “drugs and other violations of law”, we are unable to conclude, as did the trial court, that a tape recorder or a cassette tape are within the scope of such consent to search. The scope of a search is generally defined by its expressed object. Florida v. Jimeno, — U.S. -, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991); Walter v. United States, 447 U.S. 649, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980). In this case, the expressed object of the search was “drugs and other contraband” or “drugs and other violations of law”. The Commonwealth fails to direct us to any authority, and we find none, under which a cassette recorder or tape would, on its face, be considered either contraband or a violation of law, regardless of where the tape recorder or tape was stored in a vehicle.

The Commonwealth offers an alternative theory to validate the search stating that even if the consent to search did not encompass seizure of the cassette, the police were justified in searching beneath the driver’s seat while looking for drugs or other contraband. The Commonwealth then argues that since the police could properly search beneath the seat of the car, the tape was properly seized under the plain view doctrine. We disagree.

In order for the plain view doctrine to apply, three requirements must be met: (1) the initial intrusion must be lawful, (2) observation of the item must be inadvertent, and (3) there must be probable cause to link the observed property or item with criminal activity. Commonwealth v. Pine, 370 Pa.Super. 410, 536 A.2d 811 (1988), appeal denied, 519 Pa. 653, 546 A.2d 57 (1988); Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983). The incriminating character of the evidence must be immediately apparent. Commonwealth v. Yacoubian, 339 Pa.Super. 413, 489 A.2d 228 (1985). Here, assuming, arguendo, that the first two requirements of the plain view doctrine have been met, we conclude that, without more, there was no probable cause to link the cassette tape to criminal activity.

We are unable to discern any authority for the Commonwealth’s proposition that probable cause exists to suspect criminal activity because a tape recorder and tape are located in a curious or unusual location. The Commonwealth declares that merely finding the cassette, located beneath the seat of the car, gave the police probable cause to link the tape with a violation of the Wiretapping and Electronic Surveillance Act.

However, Kern testified at trial that he was not familiar with the provisions of the Wiretapping and Electronic Surveillance Act. N.T., May 1, 1991, at 92. Rather, he stated:

“I thought at that point that the possibility existed that the tape, of course, was being used for criminal activity or whatnot____”

Id. Kern was unable to further articulate what type of “criminal activity or whatnot” he suspected the tape could be involved in. On its face, the tape was an ordinary cassette, the possession of which is not, in itself, criminal.

The probable cause standard requires that the facts available to the police officer would warrant a person of reasonable caution in the belief that certain items may be contraband or stolen property or useful as evidence of a crime. Commonwealth v. Daniels, 406 Pa.Super. 112, 593 A.2d 895 (1991). While the probable cause standard is flexible, mere suspicion is not a substitute for probable cause as grounds for a search and seizure. Commonwealth v. Kelly, 487 Pa. 174, 409 A.2d 21 (1979).

Under the plain view doctrine, a policeman does not have the right to seize any object in his view in order to examine it and determine if it is or would be evidence in a criminal prosecution. See Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987). An object may only be seized where it is readily apparent that the object is contraband or evidence of criminal activity. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Yacoubian, supra.

Kern’s testimony does not indicate probable cause to believe that an ordinary cassette, without other indications of criminal behavior, was evidence of a crime. Kern testified that he had had opportunity to observe tape recorders and tapes being confiscated in connection with arrests for possession of drugs. Thus, Kern assumed, after being informed of an alleged previous drug arrest of Parker at some time in the past, that he would be justified in seizing the cassette in the instant case. Knowledge of a person’s criminal background or prior arrest, alone, is insufficient to provide probable cause for seizure of an item which is not otherwise indicative of criminal activity. See Commonwealth v. Demchak, 251 Pa.Super. 253, 380 A.2d 473 (1977).

Here, as Kern did not observe Parker engaged in conversation with any persons, and found no drugs, contraband or any illegal items in Parker’s automobile, Kern’s suspicions regarding the tape do not rise to the level of probable cause. Kern was faced with a person operating an automobile without a license, who happened to have a cassette recorder and cassette under the seat of his car. After a thorough review of the record, we are unable to conclude that Kern had probable cause to associate the tape with any criminal activity. Without probable cause, even an examination of the tape by a police officer becomes improper. Arizona v. Hicks, supra.

Lastly, Parker contends that regardless of whether the police properly seized the tape, the playing of the tape was a separate search which required a search warrant. We agree.

A party asserting an exemption from the requirement for a search warrant bears the burden of establishing that his actions come within a recognized exemption. Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979). The Commonwealth relies upon Commonwealth v. Copenhefer, 526 Pa. 555, 587 A.2d 1353 (1991), to support its contention that the police properly played the tape without a warrant. In Copenhefer, the police seized a computer pursuant to a valid search warrant. There, the police were searching for a kidnapper and knew that ransom notes and instructions to the victim’s husband had been written on and printed from a computer. The police, in that case, had probable cause to believe that Copenhefer’s computer contained information related to the kidnapping and the police obtained a search warrant which permitted the police access to the computer and its files. Our supreme court held that once the computer had been seized pursuant to a valid search warrant, the police could access its files without obtaining a separate search warrant.

The present case contrasts with Copenhefer because the police, here, possessed no search warrant and did not legally seize the tape. The Commonwealth contends that since the police had consent to search, that consent encompassed the playing of the tape. Brief for the Commonwealth at 25. When an official search is properly authorized—whether by consent or by the issuance of a valid search warrant— the scope of the search is limited by the terms of its authorization. Walter, 447 U.S. at 656, 100 S.Ct. at 2401, 65 L.Ed.2d at 417. Assuming that consent was given to the police to search for “drugs or other contraband”, this consent did not encompass the playing of the tape which could qualify neither as drugs nor contraband.

Parker directs us to our supreme court’s holding in Commonwealth v. Timko, 491 Pa. 32, 417 A.2d 620 (1980), to support his assertion that a separate search warrant was required before the police could listen to the tape. In that case, the police lawfully arrested Timko. The police then performed an automobile search incident to arrest. During their search, the police removed a zippered valise from Timko’s car and searched it. Timko challenged the search of his valise claiming that in order for the police to open his valise and search it, a separate search warrant was required. Our supreme court agreed and held that once the valise was reduced to the custody of the police, there was neither danger to police officers nor an exigent circumstance which could justify the immediate search of the closed container. Id. at 39, 417 A.2d at 623. There, the court stated that the valise could not be searched without a warrant simply because it had been seized from an automobile. Id.

The rationale in Timko is persuasive. There, the valise was lawfully seized pursuant to arrest. However, without a search warrant, the police were prohibited from searching within the valise where the appellant had a reasonable expectation of privacy. Timko, at 38, 417 A.2d at 623. The Commonwealth, here, claims that the tape was validly seized, either pursuant to the plain view doctrine or Parker’s consent. However, even if the seizure of tape were valid, if Timko is applied, accessing the contents of the tape in which Parker had a reasonable expectation of privacy, required a separate search warrant.

The United States Supreme Court, in a plurality decision, addressed an issue similar to the one presented in this case in Walter v. United States, supra. In that case, twelve sealed packages addressed to a nonexistent corporation, “Leggs, Inc.”, were inadvertently delivered to “L’Eggs Products, Inc.”, a legitimate business enterprise. The packages were opened by L’Eggs employees and were discovered to contain boxes of film. On each box was a graphic description of the homosexual acts depicted in each enclosed film. The boxes were turned over to FBI agents, who took possession of the films and screened them without attempting to obtain a warrant. In that case, the Government argued that since it had lawful possession of the packages, the films were in plain view, and the labels gave the FBI agents probable cause to believe that the packages contained obscene materials, the warrantless screening of the films was constitutionally permissible. The Supreme Court held it was not. While the Court agreed that the Government was in lawful possession of the films, it held that screening the films was a separate search, impermissible without a warrant. Walter, 447 U.S. at 657, 100 S.Ct. at 2402, 65 L.Ed.2d at 418. The Court also stated that even if the films were in plain view due to the private search by the L’Eggs employees, screening of the films to determine their evidentiary value far exceeded the authority extended to Government officials under the plain view doctrine. Walter at 657, 100 S.Ct. at 2402, 65 L.Ed.2d at 418.

The reasoning in Walter applies in the present case. Here, the Commonwealth contends that because the police had lawful possession of the tape due to Parker’s consent or through the plain view doctrine, no warrant was required in order for the police to listen to the contents of the tape. Under Walter, listening to the tape was a separate search beyond the scope of the alleged consent given, and beyond the limited authority afforded the police under the plain view doctrine. Walter at 657, 100 S.Ct. at 2402, 65 L.Ed.2d at 418. Here as in Walter, the police had possession of the tape and there were no exigent circumstances. If there were probable cause that the contents of the tape were evidence of crime, a warrant could have been obtained, with no danger that valuable evidence would be lost.

We also find the reasoning in a Fifth Circuit case, United States v. Turk, 526 F.2d 654 (5th Cir.1976), to be instructive and persuasive. In Turk, an individual was arrested, and drugs and weapons were seized from his vehicle. The police also seized a tape recorder and some tapes from the vehicle. The police then proceeded to listen to the tapes and used the recorded conversations contained thereon to implicate Turk in criminal activity. The court, adopting the rationale of the district court, stated:

[I]f the question were could the contents of the tape be used against Mr. Kabbaby, I would rule that it could not, that the playing of the tape was an illegal search by virtue of the playing, not by virtue of taking the tapes into custody or retaining them, but by playing them.

Id. at 666. The Turk court held that while the tapes were properly seized incident to arrest, the police officers were required to obtain a search warrant prior to listening to the tapes. Id. at 666. In Turk, however, the tapes were not suppressed but were used in a grand jury proceeding, where under United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), the Fourth Amendment exclusionary rule cannot be invoked by a witness. Id.

Relying on this reasoning, we hold that, regardless of whether the tape was seized pursuant to a valid exception to the general warrant requirements, prior to listening to the tape, the police should have obtained a warrant. If the police had probable cause to listen to the tape, a warrant could have easily been obtained.

We conclude that because the police search and seizure violated Parker’s rights under both Article 1, Section 8, of the Pennsylvania Constitution and under the Fourth Amendment of the United States Constitution, we must reverse the judgment of sentence in this case, and remand for a new trial, at which the illegally seized evidence will not be introduced.

Judgment of sentence reversed. Case remanded with instructions. Jurisdiction relinquished.

HOFFMAN, J., files a concurring opinion.

HOFFMAN, Judge,

concurring:

Although I concur in the result reached by the majority, I write separately because I respectfully disagree with the rationale of the opinion.

The majority states that it is uncontested that Officer Milligan had reasonable and articulable grounds for stopping Parker. The majority holds, however, that subsequent to Officer Milligan’s issuance of a citation to Parker for driving with a suspended license, Milligan was precluded by both the Pennsylvania and United States Constitutions from asking any further questions. I disagree.

First, the majority holds that Officer Milligan’s request to search Parker’s car constituted a detention in violation of Parker’s Fourth Amendment rights. In support of its contention, that absent reasonable suspicion of criminal activity, Officer Milligan’s authority was limited to the issuance of a citation, the majority cites Commonwealth v. Lopez, 415 Pa.Super. 252, 609 A.2d 177 (1992). Lopez, however, does not support the broad proposition that a police request to search constitutes a detention triggering Fourth Amendment protection.

In Lopez, this court addressed the constitutionality of each increment of the police confrontation separately. Similar to the instant case, the initial stop of Lopez for a traffic violation was found permissible. Thereafter, however, the court found that the officer’s retention of Lopez’s driver’s license and automobile rental agreement, while the officer asked Lopez a series of questions, constituted an impermissible detention because the officer had no reasonable grounds to suspect an illegal transaction in drugs or other serious crime. Id., 609 A.2d at 182. The court found that Lopez’s consent was vitiated by the illegal detention. “Because we conclude that the detention of Lopez was illegal, Lopez’s consent to the search of the Volkswagen was tainted by the illegality and was ineffective to justify the search.” Id. This court did not find, however, that the officer’s request to search Lopez’s car in and of itself constituted a detention. The illegal detention resulted from the officer’s retention of Lopez’s license and rental agreement. Hence, I respectfully disagree that Officer Milligan’s request to search Parker’s vehicle constituted a detention triggering Parker’s Fourth Amendment rights.

Subsequent to Officer Milligan’s issuance of the citation, neither the presiding officers’ conduct or verbal statements could be denoted as a restraint of Parker’s liberty. Parker has failed to introduce any evidence indicating that a reasonable person under the same circumstances would have believed that he was not free to leave after the issuance of the citation. “Not all intercourse between policemen and citizens involves seizures of persons. [Citation omitted]. Only when the officer, by physical force or a show of authority, has in some way restrained the liberty of an individual may we conclude that a seizure has occurred.” Commonwealth v. Lidge, 399 Pa.Super. 360, 366, 582 A.2d 383, 386 (1990) alloc. denied, 527 Pa. 598, 589 A.2d 689 (1991). I decline to hold that a request to search, without more, constitutes an investigative detention.

The majority further holds that the existence of a microcassette tape recorder four and a half to five inches in size affixed beneath the driver’s seat of appellant’s vehicle failed to provide the police with probable cause for the tape’s seizure pursuant to the plain view doctrine. Once again, I respectfully disagree.

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. 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). Pennsylvania’s Wiretapping and Electronic Surveillance Act prohibits the willful interception of oral communication. 18 Pa.C.S.A. § 5703(1). Contrary to the majority’s holding, it is difficult to discern what purpose other than the surreptitious recording of another’s oral communication could be served by appellant’s placement of a microcassette tape recorder beneath the seat of his car. Although mere suspicion is not a substitute for probable cause as grounds for a search and seizure, 1 am of the opinion that probable cause justified Officer Kern’s seizure of the tape.

Nevertheless, I agree with the majority’s holding that regardless of whether probable cause existed for the seizure of the tape, a search warrant was required subsequent to the tape’s seizure before the tape could properly be played.

The fourth amendment protects two types of expectations, one involving “searches,” and the other “seizures.” United States v. Jacobsen, 466 U.S. 109, 114, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984). A “search” occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. Id. I find that private tape recordings are within the same class of objects as letters in which the public at large has a justifiable expectation of privacy. See United States v. Van Leeuwen, 397 U.S. 249, 90 S.Ct. 1029, 25 L.Ed.2d 282 (1970). Hence, although the police may have justifiably seized the tape pursuant to the plain view doctrine, they nonetheless were required to obtain a search warrant prior to the playing of the tape. Thus, I concur in the result reached by the majority.


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    619 A.2d 743
    Barbara Ann DAVIS, Appellant, v. Glenn R. DAVIS and John William Beyer.
    Superior Court of Pennsylvania.
    Argued Sept. 23, 1992.
    Filed Jan. 8, 1993.

      Paul G. Campbell, Lancaster, for appellant.
    Robert D. Beyer, Lancaster, for appellees.
    Before WIEAND, FORD ELLIOTT and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from an order sustaining appellees’ demurrer and dismissing appellant’s complaint. Appellant, Barbara Davis, contends that the trial court erred in sustaining appellees’, Glenn Davis and John Beyer, demurrer to appellant’s complaint and, in the alternative, that the trial court improperly refused to permit appellant to amend her complaint. For the reasons set forth below, we affirm.

The relevant facts in this case are as follows. Barbara Davis and Glenn Davis were married on October 22, 1983. On August 1, 1985, Glenn Davis (“appellee-Davis”) filed for divorce. After years of negotiations between the parties, a hearing before a divorce master was held on March 21, 1991, at which time the agreement of the parties was placed on the record. At this hearing, appellant and appellee-Davis agreed to the following property settlement:

The parties own a piece of real estate ... at 1765 Windy Hill Road in Lancaster, Pennsylvania. All of [appellant’s] right, title and interest to that real estate will be conveyed to [appellee-Davis] in consideration for the sum of twenty-five thousand dollars.... In addition, the parties are the owners of a twenty-foot SeaRay boat. [Appellee-Davis] will convey any right or interest in that boat to [appellant].... [Appellant] will withdraw any outstanding claims as we have just covered and the divorce will proceed on [appelleeDavis’] original complaint in the 201(c) consentual [sic] basis.

Appellee-Davis’ Brief, Exhibit A, 2/3/92, at 6-7.

On May 21, 1991, the divorce master filed his report with the trial court incorporating the terms of the agreement as provided at the hearing. Husband and wife had further disagreements and, as a result, on June 18, 1991, both appellant and appellee-Davis signed the Addendum to the Property Settlement Agreement (“Addendum”) which provided:

The parties now desire to resolve the differences that have arisen between them subsequent to the agreement reached on March 21, 1991, and to enter into a written agreement evidencing the terms and conditions of that resolution.
Now, therefore, in consideration of the mutual benefits to be derived here from, the parties hereto agree as follows:
1. Husband agrees to pay to Wife the sum of Twenty-Six Thousand Dollars ($26,000.00) in exchange for Wife’s interest in the marital real estate located at 1756 Windy Hill Road.
By execution of this Agreement, Husband acknowledges receipt of signed Deed from counsel for Wife on or about June 12, 1991.
2. Husband shall retain all ownership interest in the Sea Ray boat and Wife agrees to waive any and all claim to that boat.
3. Wife agrees to execute any documents necessary to withdraw the Exceptions to the Divorce Master’s Report which are presently pending in the Court of Common Pleas of Lancaster County, Pennsylvania, and further to withdraw any and all Exceptions to a Recommended Order for Alimony Pendente Lite....
4. Husband agrees to pay to Wife the aforementioned Twenty-Six Thousand Dollars ($26,000.00) no later than July 11, 1991.
6. All other terms and provisions of the Divorce Master’s Report not inconsistent with the terms of this Agreement shall be incorporated therein.

Appellant’s Amended Complaint, Exhibit A, 1-9-92, at 2-3.

■On December 12, 1991, appellant brought an action against appellee-Davis for breach of contract and against appellees for willful, intentional and fraudulent misrepresentations, seeking both special and punitive damages as well as specific performance on the contract. Appellees filed preliminary objections in the form of a demurrer and motions to strike. On January 9, 1992, appellant filed an amended complaint. Subsequently, on January 27, 1992, appellees filed a second set of preliminary objections in the form of a demurrer and motions to strike various paragraphs of the complaint. As a result of the preliminary objections, appellees’ demurrer was granted and appellant’s complaint was dismissed with prejudice on March 10, 1992. This timely appeal followed.

Appellant’s first contention is that the trial court erred in granting appellees’ demurrer and dismissing the complaint. We disagree.

In examining an order granting preliminary objections, our standard of review is as follows:

A preliminary objection in the nature of a demurrer is not to be sustained and the complaint dismissed unless the law says with certainty that no recovery is possible. Therefore, if any theory of law will support the claim raised by the petition, a dismissal is improper....
For the purpose of our review of a dismissal on the pleadings in the nature of a demurrer, [all well-pleaded facts], except to the extent that they constitute conclusions of law, must be taken as true[.]

Cianfrani v. Com., State Employees’ Retirement Bd., 505 Pa. 294, 297, 479 A.2d 468, 469 (1984); see also Philmar Mid- Atlantic v. York St. Associates II, 389 Pa.Super. 297, 300-301, 566 A.2d 1253, 1254 (1989).

In count I of appellant’s amended complaint, appellant pleads that “[b]y failing to satisfy the first mortgage on the estate in the names of both [appellant] and [appellee-Davis], [appellee-Davis] failed to comply with the terms of the Addendum to the Property Settlement Agreement.” Appellant’s Amended Complaint, 1-9-92, at 12 (emphasis added).

The Addendum, however, makes no reference to any obligation on the part of appellee-Davis to refinance the mortgaged property and thereby release appellant from personal liability on the property. See Appellant’s Amended Complaint, Exhibit A, 1-9-92, at 1-8. Since the terms of the Addendum which allegedly were not complied with never required appellee-Davis to refinance, appellant’s claim as pleaded is legally insufficient.

Nonetheless, our analysis does not end here. In order to dismiss an action with prejudice by granting a preliminary objection in the form of a demurrer, we must find that no theory of law would support the claim raised by appellant. See Cianfrani 505 Pa. at 297, 479 A.2d at 469. While appellant’s first count alleges that the literal terms of the Addendum were not complied with, we must also consider whether any obligations existed outside the written contract.

Earlier in the amended complaint, appellant alleges that appellees made repeated oral promises that they would refinance the property. Although there was no mention of these promises in the Addendum, appellant might contend that they were antecedent or contemporaneous understandings which were intended to vary the terms of the Addendum. While this court could grant leave for appellant to amend her pleading on this basis, such a procedure would be pointless.

The parol evidence rule “forbids the introduction of parol evidence of antecedent or contemporaneous agreements, negotiations and understandings of the contracting parties for the purposes of varying or contradicting the terms of a contract which both parties intended to represent the definite and complete statement of their agreement.” Am. Bank & Trust Co. of Pa. v. Lied, 487 Pa. 333, 340, 409 A.2d 377, 381 (1979) (citation omitted).

For purposes of the parol evidence rule, the Addendum is a “definite and complete” contract. First, its terms are clear and unambiguous. See Gemini Equip. v. Pennsy Supply, 407 Pa.Super. 404, 413, 595 A.2d 1211, 1215 (1991) (“[T]he -written contract, if unambiguous, must be held to express all of the negotiations, conversations, and agreements made prior to its execution, and neither oral testimony, nor prior written agreements are admissible to explain or vary the terms of such a contract.”); McGuire v. Schneider, Inc., 368 Pa.Super. 344, 534 A.2d 115 (1987), affirmed per curiam 519 Pa. 439, 548 A.2d 1223 (1988) (citations and footnotes omitted). The manner of the transfer of ownership of the property, the cost of the transfer to appellee-Davis and the respective rights and obligations of the parties are outlined in the written agreement. Furthermore, the Addendum clearly represents that it is an agreement encompassing the entire equitable distribution. See Appellant’s Amended Complaint, Exhibit A, 1-9-92, at 8 (“All the claims of the parties are settled in accordance with the foregoing outline of the settlement agreement of the parties and as contained in the Record of Testimony of this case.”).

In addition, the alleged refinancing promise in the instant case is a condition which would naturally be included in such a specific and comprehensive agreement as the Addendum: the question of refinancing directly relates to the transferee’s obligation to the transferor of property in a settlement agreement. See Gemini 407 Pa.Super. at 413, 595 A.2d at 1215 (citations omitted) (“[P]arol evidence is inadmissible to show a contemporaneous oral agreement which, if made, would naturally and normally have been contained in the written agreement between the parties.”); Universal Film Exchanges, Inc. v. Viking Theatre Corp., 400 Pa. 27, 161 A.2d 610 (1960). Since the parol evidence rule applies in the instant action, evidence of appellees’ alleged promises of refinancing would not be admissible to alter the terms of the Addendum. Accordingly, there is no theory of law which would support appellant’s claim in count I.

Likewise, appellant is not entitled to any legal recovery under counts II or III. The second and third counts of appellant’s complaint allege that appellees “willfully, intentionally, maliciously and fraudulently misrepresented to [appellant] that [they] intended to satisfy the first mortgage in [the] Addendum to the Property Settlement Agreement and in all [their] negotiations concerning this agreement.” Appellant’s Amended Complaint at 14 and 16.

In stating a cause of action for fraud, the plaintiff must allege the following elements:

(1) a misrepresentation;
(2) a fraudulent utterance thereof;
(3) an intention by the maker that the recipient will thereby be induced to act;
(4) justifiable reliance by the recipient upon the misrepresentation; and
(5) damage to the recipient as the proximate result.

Brindle v. West Allegheny Hospital, 406 Pa.Super. 572, 574, 594 A.2d 766, 768 (1991) (citation omitted).

While appellant has pleaded facts sufficient to support four of the required elements, appellant provides no support to show that she “justifiably relied upon” appellees’ misrepresentations. Appellant claims that because of appellees’ misrepresentations, she was induced to sign the Addendum and to apply for a mortgage which was refused because of appelleeDavis’ failure to refinance. Appellant’s reliance is unjustified.

First, appellant was represented by able counsel both at the hearing before the divorce master and at the time of the signing of the Addendum. Moreover, she maintained adversarial relations with appellee-Davis. Finally, the Addendum specifically encompassed all property settlement claims. There was absolutely no mention of refinancing at the hearing before the divorce master, in the Divorce Master’s Report or in the Addendum. In light of the exclusion of such an important element of settlement, appellant was effectively put on notice that appellees’ promises were insincere.

Appellant’s second contention is that even if she failed to state a legally sufficient claim, she should be given the opportunity to amend her complaint. This court has required that “[i]n order to sustain preliminary objections in the nature of a demurrer and dismiss the complaint without leave to amend ‘it must appear with certainty that, upon the facts averred the law will not permit recovery by plaintiff.’ ” Schuylkill Products, Inc. v. H. Rupert & Sons, Inc., 305 Pa.Super. 36, 40, 451 A.2d 229, 231 (1982) (quoting Schott v. Westinghouse Electric Corp., 436 Pa. 279, 291, 259 A.2d 443, 449 (1969)) (citations omitted); see also Pa.R.Civ.P. No. 1028(c); Pa.R.Civ.P. No. 126. Because we have already found that there is no theory of law which would support any part of appellant’s amended complaint, we are neither required to nor should we grant appellant leave to amend.

We affirm the order of the trial court granting appellees’ preliminary objection in the form of a demurrer.

Order affirmed.

      . John Beyer was Glenn Davis’ attorney throughout the property settlement negotiations.

      . We point out that the terms of the Divorce Master's Report are expressly incorporated into the Addendum to the extent that they are not inconsistent with the terms of the Addendum. Accordingly, when referring to the Addendum, we are also referring to the incorporated terms of the Divorce Master’s Report.

      . Appellant also argues that she spent $400 in filing for her own mortgage, which was denied because her name was on the mortgage at issue. However, appellant was on notice that appellees’ promises might not be honored. Once on notice, appellant could have easily ascertained whether the property had indeed been refinanced before applying for her own mortgage.


author: CIRILLO, Judge: McEWEN, Judge,

text:
    619 A.2d 748
    Myles JACQUES, Jr., Appellant, v. AKZO INTERNATIONAL SALT, INC.
    Superior Court of Pennsylvania.
    Argued Dec. 2, 1992.
    Filed Jan. 15, 1993.

      Peter G. Loftus, Scranton, for appellant.
    Francis J. Connell, III, Philadelphia, for appellee.
   CIRILLO, Judge:

Myles F. Jacques appeals from an order of the Court of Common Pleas of Lackawanna County granting summary judgment to Akzo International Salt, Inc. on all four counts of Jacques’s complaint, related to his dismissal by the company. We affirm.

Jacques was hired in June, 1982 by International Salt Company, predecessor corporation to Akzo International (Akzo) as a credit administrator. Jacques was hired by telephone and, according to his deposition, no representations were made to him about the length of his employment, its terms, or the conditions under which he could be terminated. He has no written employment contract.

The next year Jacques was promoted to credit manager. Jacques’s evaluations were favorable but his supervisor suggested that he should be less hard-nosed, less abrasive and that he should use “more honey and less vinegar” when dealing with other employees. In 1988 International Salt purchased a salt division of Diamond Crystal Salt Company and Jacques became the manager of the combined credit and collection departments of the merged companies. Jacques testified he was told his supervisor “wanted no confrontations with Diamond Crystal people.”

By all accounts, Jacques’s tenure as manager of the combined departments was troubled. An affidavit by Jacques’s supervisor testified to unapplied cash which accumulated at “an alarming rate,” the write-off of more than one million dollars worth of billing discrepancies, and Jacques’s deteriorating relationship with sales personnel, particularly Diamond Crystal’s staff.

Jacques testified to accounting discrepancies, to decisions which were made about his department "without his input, and about deteriorating interpersonal relationships with superiors, those he supervised, and colleagues, although he ascribed the problems to causes which differed from that identified by his supervisor.

On June 12, 1989 Jacques was fired. Jacques was 50 years old and was replaced by a man of 46.

Jacques’s complaint enumerated four counts: that his termination was a violation of the Pennsylvania Human Relations Act’s prohibition on age discrimination; that his was a wrongful discharge; that his discharge breached an employment contract; and that his discharge was an intentional infliction of emotional distress.

Akzo answered the complaint, written discovery was conducted, and Jacques was deposed. After the submission of affidavits and oral argument, the trial court granted Akzo’s motion for summary judgment on all four counts of Jacques’s complaint. This timely appeal followed.

Jacques raises four questions for our consideration:

1) Was summary judgment appropriate before the pleadings were closed;
2) Was the evidence sufficient to support a claim for age discrimination under the Pennsylvania Human Relations Act;
3) Was the evidence sufficient to support a claim for wrongful discharge;
4) Was the evidence sufficient to support a claim for intentional infliction of emotional distress.

When we review the grant of a motion for summary judgment made under Pa.R.C.P. 1035, our scope of review is well-settled: summary judgment is properly granted where “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P. 1035(b), 42 Pa.C.S. Summary judgment may be granted only where the right is clear and free from doubt. Musser v. Vilsmeier Auction Co. Inc., 522 Pa. 367, 369, 562 A.2d 279, 280 (1989). The moving party has the burden of proving that there is no genuine issue of material fact. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979). The record and any inferences therefrom must be viewed in the light most favorable to the nonmoving party, and any doubt must be resolved against the moving party. Davis v. Pennzoil, 438 Pa. 194, 264 A.2d 597 (1970). The trial court will be overturned on the entry of summary judgment only if there has been an error of law or a clear abuse of discretion. Hetrick v. Apollo Gas Co., 415 Pa.Super. 189, 608 A.2d 1074 (1992).

Even though Jacques’s questions are inartfully presented, our standard of review dictates that we examine each of the counts in his original complaint to determine whether there is a genuine issue of material fact or whether Akzo is entitled to a judgment as a matter of law. Davis, supra; Pa.R,C.P. 1035(b).

SUMMARY JUDGMENT

Jacques’s first issue is whether summary judgment was entered prematurely. Because the issue was not raised in the trial court, it is not preserved for review here. Pa.R.A.P. 302(a). Had the issue been properly preserved, it is without merit because the pleadings, as required by Rule 1035(a), were closed when Jacques failed to respond to Akzo’s Answer and New Matter, filed on July 9, 1991. See Pa.R.C.P. 1017. Under Pa.R.C.P. 1029 the averments of Akzo’s New Matter are deemed admitted for failure to deny. If we read the question as claiming that the trial court allowed Jacques insufficient time for discovery, we review the trial court’s decision under the standard of abuse of discretion or error of law. Kerns v. Methodist Hospital, 393 Pa.Super. 533, 543, 574 A.2d 1068, 1075 (1990). We are satisfied that each of Jacques’s discovery requests was answered before the entry of summary judgment, including the one served two days before oral argument. Six months passed between Jacques’s complaint and the filing of the motion for summary judgment, during which time Jacques apparently made no requests for depositions nor made any attempt to schedule viewing of documents. Therefore, the trial court’s decision to enter summary judgment was not an abuse of discretion. Kerns, supra.

EMPLOYMENT AT-WILL

Pennsylvania is an at-will employment state. Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974). This means that any employer may at any time for any reason dismiss an employee. Hershberger v. Jersey Shore Steel Co., 394 Pa.Super. 363, 575 A.2d 944 (1990). There are, however, a limited number of statutory and common law exceptions to employment at will. Paul v. Lankenau Hospital, 524 Pa. 90, 569 A.2d 346 (1990); Geary, supra. Jacques’s complaint alleges that his dismissal invokes each of Pennsylvania’s three exceptions to employment at-will: wrongful discharge based on discrimination, 43 Pa.S. § 951 et seq.; wrongful discharge based on a public policy tort, Turner v. Letterkenny Federal Credit Union, 351 Pa.Super. 51, 55, 505 A.2d 259, 261 (1985); and wrongful discharge based on an actual or implied contract. Banas v. Matthews International Corp., 348 Pa.Super. 464, 502 A.2d 637 (1985). None of Jacques’s allegations is sufficient to overcome the strong public policy in favor of employment at-will, but we will consider each separately.

AGE DISCRIMINATION

A cause of action based on age discrimination in Pennsylvania is found in 43 Pa.S. § 955 et seq. which forbids discrimination in employment based on age. Pennsylvania courts use federal interpretations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., to inform our interpretations of the Pennsylvania Human Relations Act, 43 Pa.S. § 951 et seq. See Fairfield Twp. Volunteer Fire Co. No. 1 v. Pennsylvania Human Relations Commission, 530 Pa. 441, 609 A.2d 804 (1992).

The jurisprudence of discrimination has established a three-step process for proving discrimination. First, the employee must make out a prima facie case of discrimination. See Civil Service Commission of the City of Pittsburgh v. Commonwealth, Pennsylvania Human Relations Commission, 527 Pa. 315, 591 A.2d 281 (1991) (an obese city worker failed to prove that he was a member of the protected class of handicapped persons.) An employee establishes a prima facie case by showing that 1) he or she belongs to a protected class; 2) that he or she was qualified for the position; 3) that he or she was dismissed despite being qualified; and 4) that the company sought a person outside the protected class for the position. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); General Electric Corp. v. Pennsylvania Human Relations Commission, 469 Pa. 292, 365 A.2d 649 (1976).

Once the employee has established a prima facie case of discrimination, the burden of proof shifts to allow the employer an opportunity to rebut the inference of the prima facie case. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The employer has the opportunity to articulate some nondiscriminatory, permissible reason for firing the employee. McDonnell Douglas, supra; General Electric, supra, If the employer articulates a nondiscriminatory reason for his or her employment decision, then the burden of proof shifts back to the employee, who is given an opportunity to prove that the articulated, nondiscriminatory reason is pretextual. McDonnell Douglas, supra; General Electric, supra. In General Electric, female employees were laid off rather than reassigned as male employees had been when a division closed. The female employees proved that they were members of a protected class and that the company’s articulated reason for reassigning only men was a pretext.

Jacques’s first burden is to show a prima facie case of discrimination. Pennsylvania law provides no guidance on what quantum of difference in age would satisfy the fourth requirement of a prima facie case, that the replacement be significantly younger than the plaintiff. Federal courts have held that an inference of age discrimination arises when the difference in ages between plaintiff and his replacement is 20 years. Maxfield v. Sinclair International, 766 F.2d 788 (3d Cir.1985), cert. denied, 474 U.S. 1057, 106 S.Ct. 796, 88 L.Ed.2d 773 (1986); Pierce v. New Process Co., 580 F.Supp. 1543 (1984). But, no inference of age discrimination will arise when the difference in ages between a dismissed employee and his replacement is only one year. Gray v. York Newspapers, Inc., 957 F.2d 1070, 1088 (3d Cir.1992). When Jacques was fired he was 50 years old; his replacement was four years younger. The difference in ages is too slight to raise an inference of age discrimination.

The plaintiffs burden is, however, slight in establishing a prima facie case. Burdine, supra. If we were to find that Jacques had established a presumption of age discrimination, the record amply supports Akzo’s nondiseriminatory reasons for terminating Jacques. It is clear Jacques’s tenure as manager of the combined departments was punctuated by controversy. Jacques argues he was not responsible for the strife; the company says he was. Who is right matters not. The record demonstrates the claims of contention were not pretextual. Akzo may fire Jacques for any reason or no reason, Hershberger, supra, so long as that reason is not discriminatory. Even taking as true all factual assertions made by Jacques, and all reasonable inferences therefrom, as we must under Davis, supra, we find no facts from which we could conclude there was a genuine issue of material fact as to whether Jacques was fired for a discriminatory reason. Jacques admitted problems with accumulating unapplied cash, problems with discrepancies which led to more than one million dollars in write-offs, and difficulties dealing with other employees. He offered no evidence that age was a factor in his firing except that his replacement was four years younger. Jacques has failed to demonstrate that the reasons for his dismissal were pretextual and, therefore, has failed to meet his burden in the third prong of McDonnell Douglas and General Electric.

Since Jacques has failed to offer any evidence which would support an age discrimination claim, we find that summary judgment was appropriate. Davis, supra; McDonnell Douglas, supra.

WRONGFUL DISCHARGE

Jacques’s complaint and his appeal allege wrongful discharge on two distinct theories: the first as a violation of the public policy tort and the second as a violation of an implied contract.

Jacques claims that his dismissal violated public policy in that it was an act of age discrimination and was effected to deprive him of his pension rights. It is well-settled that the courts will not entertain a separate common law action for wrongful discharge where specific statutory remedies are available. Clay v. Advanced Computer Applications, 522 Pa. 86, 89, 559 A.2d 917, 918 (1989) (citing with approval Householder v. Kensington Manufacturing Co., 360 Pa.Super. 290, 520 A.2d 461, appeal denied, 516 Pa. 629, 532 A.2d 1137 (1987)). Our supreme court held that the Pennsylvania Human Relations Act, 43 Pa.S. § 951 et seq., preempts claims of wrongful discharge based on a violation of the public policy against discrimination. Clay, supra. The federal courts, applying Pennsylvania law, have also found preemption of the common law claim by statute. Bruffett v. Warner Communications, Inc., 692 F.2d 910 (3d Cir.1982); Pierce v. New Process Company, 580 F.Supp. 1543 (W.D.Pa.1984). It is the existence of the remedy, not the success of the statutory claim, which determines preemption. Keck v. Commercial Credit Union Ins. Co., 758 F.Supp. 1034 (M.D.Pa.1991).

We need spend no time on Jacques’s claim that his dismissal violated the public policy tort because it deprived him of his pension benefits. Jacques offered no fact which would tend to show that he was deprived of any pension benefit which he had earned prior to the date of dismissal. His argument that he was deprived of an opportunity to earn more pension benefits fails in the face of logic. And, most tellingly, federal law preempts any tort claim which Jacques might bring. See Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 111 S.Ct. 478, 112 L.Ed.2d 474 (1990) (the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq., preempts wrongful discharge claims based on wrongful interference with benefit rights.)

Jacques’s contention that a discharge may be wrongful if it evidences a specific intent to harm is discredited in Pennsylvania law. Yetter v. Ward Trucking Corp., 401 Pa.Super. 467, 585 A.2d 1022 (1991), allocatur denied, 529 Pa. 623, 600 A.2d 539 (1991). Yetter held that public policy is found only in clear legislative mandate “at the heart of a citizen’s social right, duties and responsibilities.” Id. at 474, 585 A.2d at 1026 (citations omitted). Jacques’s reliance on Booth v. McDonnell Douglas Truck Service, 401 Pa.Super. 234, 585 A.2d 24, allocatur denied, 528 Pa. 620, 597 A.2d 1150 (1991), is misplaced. While Booth suggested in dicta and without authority that a specific intent to harm might make out a violation of the public policy tort, the court there found no such cause of action. In fact, the Booth court held that withholding commissions owed and breaking a one-year contract did not rise to the level of specific intent to harm. The Booth case is more generally read as a further limitation on the public policy tort. See Borse v. Piece Goods Shops, Inc., 963 F.2d 611 (3d Cir.1992). Yetter subsumes the specific intent to harm into the public policy tort and demands that the public policy be articulated in legislation, administrative regulation, or judicial decision. 401 Pa.Super. at 474, 585 A.2d at 1026.

Jacques also alleges that his discharge was wrongful because it violated an implied employment contract based on an employee handbook. An employee handbook only forms the basis of an implied contract if the employee shows that the employer affirmatively intended that it do so. Morosetti v. Louisiana Land and Exploration Co., 522 Pa. 492, 564 A.2d 151 (1989); see also Greene v. Oliver Realty Inc., 363 Pa.Super. 534, 526 A.2d 1192 (Cirillo, J.), appeal denied 517 Pa. 607, 536 A.2d 1331 (1987) (an employment contract is not formed without specific intent and consideration). There is nothing in the employee handbook, “Your Company, Your Job, Your Benefits—A Guide for Salaried Employees,” which would indicate an intent to form a contract. The handbook does not purport to change the at-will employment relationship.

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Jacques’s final argument is that summary judgment is inappropriate on his claim for intentional infliction of emotional distress because there is evidence in his deposition from which a suicide attempt could be inferred. He testified that his companion called the police when he, Jacques, was cleaning a hunting rifle. The companion, Jacques said, misinterpreted the handling of the rifle as a suicide threat.

To make out a claim of intentional infliction of emotional distress, the plaintiff must show conduct “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be intolerable in a civilized community.” Clay v. Advanced Computer Systems, Inc., 370 Pa.Super. 497, 514, 536 A.2d 1375, 1384 (1988) (citations omitted), reversed in part on other grounds, Clay v. Advanced Computer Systems Inc., 522 Pa. 86, 559 A.2d 917 (1989). Termination is not such conduct. Rinehimer v. Luzerne County Community College, 372 Pa.Super. 480, 539 A.2d 1298 (Cirillo, J.), appeal denied 521 Pa. 606, 555 A.2d 116 (1988). The record fails to support Jacques’s contention on appeal that his termination generated a suicide attempt. In any event, it is the conduct which must be outrageous, not the reaction to that conduct, to create a cause of action for intentional infliction of emotional distress. Clay, supra; Rinehimer, supra.

CONCLUSION

When we consider all of Jacques’s claims and take as true all of his reasonable factual assertions, we find that there is no genuine issue of material fact and that Akzo is entitled to summary judgment as a matter of law on each of Jacques’s four counts.

Order affirmed.

McEWEN, J., files a concurring statement.

McEWEN, Judge,

concurring:

The disposition by this Court of this case is controlled by certain threshold factors: the quite pronounced posture of Pennsylvania as an at-will employment state, as well as the rather limited statutory common law exceptions to that position. Moreover, however real the dispute as to whether social enlightenment demands that Pennsylvania assume a less rigid posture, no one will dispute that such a decision is solely the prerogative of the Legislature. Thus it is that I agree that the distinguished President Judge James J. Walsh correctly proceeded to grant summary judgment in favor of appellee.

      . Jacques apparently is lumping together under the rubric of "wrongful discharge” his claim that his dismissal was wrongful as a violation of public policy and his claim that his dismissal was in violation of an employment contract.

      . Rule 1035(a) provides:
      After the pleadings are closed, but within such time as not to delay trial, any party may move for summary judgment on the pleadings and any depositions, answers to interrogatories, admissions on file and supporting affidavits.
      Pa.R.C.P. 1035(a), 42 Pa.C.S.A.

      . Rule 1017(a) states:
      Except as provided by Rule 1041.1, the pleadings in an action are limited to a complaint, an answer thereto, a reply if the answer contains new matter or a counterclaim, a counter-reply if the reply to a counterclaim contains new matter, a preliminary objection and an answer thereto.
      Pa.R.C.P. 1017(a), 42 Pa.C.S.A.

      . In relevant part, 43 Pa.S. § 955 provides:
      It shall be an unlawful discriminatory practice ... (a) For any employer because of the ... age ... of any individual to refuse to hire or employ, or to bar or to discharge from employment such individual.
      43 Pa.S. § 955.

      . Jacques complied with the procedural requirements of the Human Relations Act, 43 Pa.S. § 951 et seq., and elected to file a complaint pursuant to 43 Pa.S. § 962(c) after the Pennsylvania Human Relations Commission dismissed his complaint on grounds the facts did not establish probable cause that unlawful discrimination had occurred.

      . We are puzzled by Jacques’s insistence that he was almost 52 when he was fired. Jacques was born July 31, 1938; he was fired June 16, 1989. He was, therefore, more than a month short of 51, not 52. His replacement, James Silvernail, was 46 when he was appointed, a month short of 47.


author: JOHNSON, Judge:

text:
    619 A.2d 754
    Carrl J. CREEKS, Appellant, v. John H. CREEKS.
    Superior Court of Pennsylvania.
    Argued Oct. 13, 1992.
    Filed Jan. 19, 1993.

      Mark A. Criss, Evans City, for appellant.
    Wesley F. Hamilton, Zelienople, for appellee.
    Before TAMILIA, JOHNSON and HESTER, JJ.
   JOHNSON, Judge:

Carrl Creeks appeals from an order which denied her Petition For the Imposition of a Constructive Trust on marital assets which were not disclosed by John Creeks (Husband) during the negotiation of the marital settlement agreement and also denied Wife’s request for attorney’s fees. We reverse.

The parties were married on January 19, 1945. On April 17, 1989, Wife filed for divorce. Prior to entering into a Marital Settlement Agreement (Agreement), Husband filed his Inventory and Appraisement. The parties entered into the Agreement on December 5, 1990. On December 24, 1990, the parties were divorced. The Agreement was incorporated but not merged into the divorce decree.

On August 22, 1991, Wife filed a Petition For Imposition of a Constructive Trust and for Attorney’s Fees. Wife’s petition alleged that Husband had breached the disclosure clause of the Agreement by failing to disclose certain marital funds which were deposited, during the marriage, into Husband’s paramour’s bank account. Wife sought to have a constructive trust imposed by the court on the undisclosed assets and the provision of attorney’s fees. Following a hearing on this issue, the trial court denied Wife’s petition. It is from this order that Wife appeals.

Wife presents four issues for our review:

1. Whether the trial court erred in failing to enforce, as written, an explicit warranty concerning disclosure of assets contained in the Agreement.
2. Whether the trial court erred by imposing on Wife the burden of proving the omission of assets from Husband’s disclosure of assets statement was either intentional or negligent.
3. Whether the trial court abused its discretion by declining Wife’s request for a continuance and supplemental hearing, after Husband’s surprise testimony attributing the non-disclosure of assets to his previous attorney.
4. Whether the trial court erred in failing to award attorney’s fees pursuant to the language contained in the Agreement.

First, Wife contends that the trial court erred in failing to enforce the Warranty of Financial Information, contained in paragraph 4 of the Agreement. We agree.

The pertinent paragraph of the Agreement reads as follows:

4. Warranty of Financial Information. The parties each represent and warrant to the other that he or she has made complete and accurate disclosure to the other of all assets of any nature whatsoever in which such party has or may have an interest and of all the facts relating to the subject matter of this Agreement. Husband specifically warrants the accuracy and completeness of the financial information provided to Wife as set forth on the Inventory and Appraisement Forms filed with the Court at F.C. # 89-339-D, Book 22, Page 339. Husband and Wife further warrant to each other that neither has received any lump sum advance payment from Mr. and Mrs. Reeb as the purchasers of 113 South Milton Street under the existing Article of Agreement.

Wife alleges that Husband provided funds, totaling $2,887.32, to Sharon Shields (now Sharon Creeks) during a series of transactions between May, 1988, and September, 1988. The funds transferred to Shields were not listed on Husband’s Inventory and Appraisement Forms, despite the warranty in paragraph 4 of the Agreement. The trial court specifically found that Husband did transfer the funds to Shields. Trial court opinion, January 24, 1992, at 2. The trial court however, concluded that Husband did not breach paragraph 4 of the Agreement because he sent a letter to his then attorney informing the attorney that “he had received $2,887.00 from a friend who was keeping it for him.” Trial court opinion, January 24, 1992 at 2. This conclusion is in error.

When construing agreements involving clear and unambiguous terms, this Court need only examine the writing itself to give effect to the parties understanding. McMahon v. McMahon, 417 Pa.Super. 592, 612 A.2d 1360 (1992) (en banc). The court must construe the contract only as written and may not modify the plain meaning of the words under the guise of interpretation. Trumpp v. Trumpp, 351 Pa.Super. 205, 505 A.2d 601 (1985). When the terms of a written contract are clear, this Court will not re-write it or give it a construction in conflict with the accepted and plain meaning of the language used. Litwack v. Litwack, 289 Pa.Super. 405, 433 A.2d 514 (1981). Conversely, when the language is ambiguous and the intention of the parties cannot be reasonably ascertained from the language of the writing alone, the parol evidence rule does not apply to the admission of oral testimony to show both the intent of the parties and the circumstances attending the execution of the contract. DeWitt v. Kaiser, 335 Pa.Super. 258, 484 A.2d 121 (1984).

In this case, the language of the Agreement required each party to make “a complete and accurate disclosure to the other of all assets of any nature whatsoever in which such party has or may have an interest.... ” This language is clear. Husband and Wife had a duty under the terms of them agreement to disclose all assets to each other regardless of their source. This duty was not assignable, under the contract, but inured personally to Husband and Wife. When Husband specifically warranted that the Inventory and Appraisement Forms were complete and accurate, Husband could not avoid this warranty merely by informing his attorney of the existence of the funds. Husband had a duty to actually disclose the existence of the funds to Wife in the Inventory and Appraisement Forms. A review of the Inventory and Appraisement Forms, the testimony, and the trial court’s findings, indicates Husband did not disclose the existence of the $2,887.32. We, therefore conclude that the trial court erred in failing to find that the plain language of the Agreement was breached by Husband’s lack of complete disclosure of his assets.

Since the Agreement was breached by Husband’s failure to completely disclose all of his financial assets, we will now address Wife’s second issue. Wife asks: what remedy is available for a breach of a warranty to disclose assets under a marital settlement agreement, and what standard must the trial court use when determining whether to impose that remedy?

Wife directs us to 23 Pa.C.S. § 3505(d) in support of her contention that a constructive trust should be imposed upon the Husband’s undisclosed assets. This section states:

(d) Constructive trust for undisclosed assets.—If a party fails to disclose information required by subsection (b) and in consequence thereof an asset or assets with a fair market value of $500 or more is omitted from the final distribution of property, the party aggrieved by the nondisclosure may at any time petition the court granting the award to declare the creation of a constructive trust as to all undisclosed assets for the benefit of the parties and their minor or dependent children, if any. The party in whose name the assets are held shall be declared the constructive trustee, and the trust may include any terms and conditions the court may determine. The court shall grant the petition upon a finding of a failure to disclose the assets as required under subsection (b).

This section mandates the imposition of a constructive trust when a party fails to disclose financial assets, and that failure results in the omission of an asset with a fair market value of $500 or more from the equitable distribution scheme. Husband’s failure to disclose resulted in $2,887.32 being omitted from the equitable distribution agreement between the parties.

Here, the trial court concluded that, since Wife failed to prove that Husband’s failure to disclose the funds was motivated by a desire to avoid equitable distribution, it could not impose a constructive trust on Husband’s assets. This conclusion by the trial court reveals a misunderstanding of the statutory requirements under 23 Pa.C.S. § 3505. This section does not include a requirement that the failure to disclose an asset be a deliberate or intentional effort to avoid subjecting funds to the equitable distribution process. The statute merely requires the non-disclosure of funds which could have been the subject of equitable distribution regardless of the intent of the party failing to disclose those assets.

The previously enacted version of this statute required a party to “deliberately or negligently” fail to disclose assets before a constructive trust would be imposed on the omitted assets. See Act of April 2, 1980, P.L. 63, No. 26, 23 P.S. § 403(c). However, the 1990 version of this statute requires only the failure to disclose without placing any further burden on the party proving non-disclosure to characterize the nature of those actions.

After a thorough review of the record, we conclude that since Husband failed to disclose assets which may have been the subject of equitable distribution, a constructive trust for the amount of those assets should be placed on the present financial assets of Husband in the amount of $2,887.32.

We need not address Wife’s third issue as it is not required for the disposition of this action. In the fourth issue of this appeal, Wife contends that the trial court erred in failing to award attorney’s fees pursuant to paragraph 7 of the Agreement, which states:

7. Attorney’s Fees in Event of Breach. In the event enforcement proceedings are instituted because of a breach or alleged breach of this Agreement or any Court Order entered thereunder by either party, the prevailing party in such proceedings shall be entitled to an award of counsel fees for all time reasonably expended in connection with the enforcement of this Agreement. It is stipulated that a rate of One Hundred ($100.00) Dollars per hour is a reasonable hourly fee.

The plain language of the parties’ agreement provides for the award of attorney’s fees, if an enforcement proceeding must be brought because of the breach of the Agreement by either party. The trial court did not award attorney’s fees as it concluded that breach of the Agreement had not occurred. Since we conclude that Husband’s failure to disclose all of his monetary assets constituted a breach of the disclosure warranty in paragraph 4 of the Agreement, attorney’s fees should have been awarded pursuant to the plain language of paragraph 7 of the parties’ Agreement. We remand to the trial court for the imposition of attorney’s fees following a hearing at which Wife will be permitted to present evidence of all attorney’s fees and other costs incurred in the enforcement of the marital settlement agreement, including the costs of this appeal.

Accordingly, for the foregoing reasons, we reverse the order of the trial court and remand for proceedings not inconsistent with this opinion.

Order Reversed and Case Remanded. Jurisdiction relinquished.


author: TAMILIA, Judge:

text:
    619 A.2d 758
    In re: DEANNA S., A Minor. Appeal of: Kimberly L. OLIVER, Esquire, counsel for Deanna S., The above named Minor.
    Superior Court of Pennsylvania.
    Argued Dec. 10, 1992.
    Filed Jan. 22, 1993.

      Kim Oliver, Pittsburgh, in pro per.
    James A. Esler, Pittsburgh, for Children and Youth Services, participating party.
    Before TAMILIA, HUDOCK and MONTGOMERY, JJ.
   TAMILIA, Judge:

This appeal is taken from the Order of April 29, 1992, closing the case of Deanna S., a minor. Deanna was born on March 23, 1976, and adjudicated dependent in October, 1987 as a result of allegations that she was a victim of physical and sexual abuse by relatives. On December 3, 1990, Deanna ran away from a group home where she had been placed, and she has been missing since that time. At a review hearing on April 29, 1992, Children and Youth Services of Allegheny County (“CYS”) presented an addendum detailing its specific and considerable efforts to locate Deanna, all without success. CYS recommended that it be relieved of the duty of looking for Deanna any longer, and that the case be closed. Nonetheless, the CYS caseworker stated the agency was willing to reopen the case in the event Deanna was found. The child advocate objected, but the case was closed. A motion for reconsideration, heard on May 6, 1992, was denied and this appeal followed.

On appeal, the child advocate argues the Juvenile Act, 42 Pa.C.S. § 6301 et seq., does not allow for the action taken by the trial court in this case. We disagree with the reasoning of the trial court but agree with the result.

In cases of dependent children, covered by section 6351, the Juvenile Act provides the following:

(e) Disposition review hearings.—Within six months of the removal of a child from the home of his parents, guardian or custodian for placement pursuant to a transfer of temporary legal custody or other disposition under subsection (a)(2), the court shall conduct a disposition review hearing for the purpose of determining whether placement continues to be best suited to the protection and physical, mental and moral welfare of the child. The court shall conduct a second review hearing not later than six months after the initial hearing, a third hearing not later than six months after the second hearing and subsequent disposition review hearings at least every 12 months until the child is returned home or removed from the jurisdiction of the court.

42 Pa.C.S. § 6351(e) (emphasis added). In In re Lowry, 506 Pa. 121, 484 A.2d 383 (1984), our Supreme Court held that “[i]n ordering a disposition under Section 6351 of the Juvenile Act, the court acts not in the role of adjudicator reviewing the action of an administrative agency, ... rather the court acts pursuant to a separate discretionary role with the purpose of meeting the child’s best interests.” Lowry, supra at 127, 484 A.2d at 386. More recently, the Supreme Court clarified the role and duty of CYS and the Juvenile Court to provide treatment and supervision of dependent children. In re Tameka M., 525 Pa. 348 580 A.2d 750 (1990).

In this case, Deanna has been a runaway for more than two years, and clearly has avoided the jurisdiction of the court. Counsel for the child alleges the child was seen in the community within the six months prior to the review hearing and, therefore, was last known to be within the jurisdiction of the court. Therefore, the mandates of Lowry and Tameka M. apply, unless there is some other cogent basis upon which the child may be serviced by the Juvenile Court, thereby relieving the agency of its duty. We recognize that in many instances dependent children do not, or cannot, avail themselves of the necessary support and protection offered by CYS, and for this reason the juvenile court properly acts in loco parentis. This case, however, concerns a child, albeit one approaching the age of majority, who successfully has evaded apprehension by authorities for more than two years. CYS can only do so much for any dependent child, much less a wily, apparently street-wise older child who has been on her own for two years. CYS is not Interpol; it is not charged with tracking down all runaway dependent children to the detriment of the dependent children whose whereabouts are certain. In those situations, to carry the child on the CYS rolls as a dependent child in an inactive status, subject only to a continued six-month review requirement, is not onerous or excessively costly. The court or the agency cannot be relieved of jurisdiction simply because the child runs away while under agency supervision. The “removed from the jurisdiction of the court” provision of section (e) cannot be interpreted to mean that the court’s or CYS’ jurisdiction is ousted simply by the child avoiding apprehension. Removal from the jurisdiction of the court means placement outside the legal reach of the court by incarceration in a foreign jurisdiction or relocation to a different county or state which can assume jurisdiction. Under those circumstances, such changes can be accomplished pursuant to the provisions of the Juvenile Act, section 6361, Disposition of nonresident child. This section provides for a variety of means of accepting or transferring jurisdiction. Section 6363, Ordering foreign supervision, further amplifies the transfer of jurisdiction and establishes how the costs are paid for maintenance of the child.

The Supreme Court Opinion in Tameka M. noted that “the resources of local CYS agencies are limited. They cannot afford to do everything for the dependent children in their care which might benefit them.... ” Id. at 354, 580 A.2d at 753. This does not, however, void the mandates of CYS and the Juvenile Act which are fully supported by Tameka M. There, Justice Papadakos, speaking for the majority, stated:

We repeat, under our law, CYS has the duty to give financial support to dependent children, and Juvenile Court has the duty to act to provide for the “protection and physical, mental and moral welfare” of a dependent child. This bestows on a dependent child the legal right to such care and treatment to be paid for by CYS.

Id. at 348, 580 A.2d at 755. To permit the agency to close cases as to runaways simply to avoid spending money looking for them would be an invitation to CYS to do nothing for runaways with the assurance the court would be sympathetic to the claim that the money always could be spent better elsewhere. While it is true that with limited resources CYS must establish priority use for its funds, it cannot ignore any mandated service because the money could be spent better elsewhere. A systematic search procedure could be adopted in these cases much as is done by police in conducting fugitive searches for persons charged with crimes, to avoid dismissal due to running of the statute of limitations. These procedures can be effective without being excessively costly or time consuming. Thus the trial court’s determination that the money spent searching for Deanna could be put to better use for other dependent children was an abuse of discretion.

We, conclude, however, the closing of this case as to CYS is appropriate because the court has retained jurisdiction of the child as a delinquent. While the child advocate alleges the action of Judge Cheryl A. Craig, who on May 7, 1992 continued the child’s delinquency review for six months, shows a split in policy between judges as to handling of dependency and delinquency cases, we find the action serves a complimentary purpose which renders the Order of Judge Strassburger acceptable because the necessary result has been achieved. Once a child is determined to be delinquent, unless it is necessary for placement purposes to have an adjudication of dependency and delinquency, no need exists to retain the supervision of CYS. The true waste of public funds is to have both CYS and the Juvenile Court staff active in a case when either can and will provide the service. Obviously, at her age, Deanna S. is not going to be amenable to the less stringent controls of CYS. The Juvenile Court, exercising its parens patriae function with dependent children, can only operate through CYS to effect or compel treatment of the child. If the agency fails, the court can do little. As a delinquent child subject to direct court supervision, control and detention, the Juvenile Court can be far more effective. Since the Juvenile Court has retained jurisdiction of Deanna S. as a delinquent child pursuant to Judge Craig’s Order, the necessity of further CYS involvement is eliminated. The court, through its probation office, will presumably continue its efforts to locate her and to bring her back into treatment. In the event she is found, it can then be determined if any further agency services are required, at which time the CYS case can be reopened.

For the above reasons, we affirm the Order of the trial court.

Order affirmed.

      . We note that the Legislature determined in 1976 that incorrigibles and truants were to be treated by the court as dependent children, subject to CYS supervision, and not as delinquent as had been the case under prior law. See 42 Pa.C.S. § 6302, Definitions. While many states have adopted a "valid court order" amendment which permits the Juvenile Court to apply more stringent measures to control uncooperative behavior, the Pennsylvania Legislature has not seen fit to do so. The result is that CYS, with no security capacity, is ineffective in dealing with children such as Deanna, and both CYS and Juvenile Courts tend to wash their hands of those cases. The result of this inadequate approach can be measured in increased illegitimacy, prostitution, drug involvement, delinquency and failure to enter adulthood with the requisite life skills to avoid welfare and incarceration. This case reflects the failure of that policy.


author: OLSZEWSKI, Judge: WIEAND, Judge,

text:
    619 A.2d 761
    David Harry LAMBERT, Appellee, v. Geraldine Julia Borsh LAMBERT, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 29, 1992.
    Filed Jan. 25, 1993.

      Elizabeth L. Bennett, Radnor, for appellant.
    Cheryl Young, Norristown, for appellee.
    Before WIEAND, OLSZEWSKI and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

Geraldine Lambert (hereinafter “wife”) appeals the order entered January 29, 1992, in the Court of Common Pleas of Delaware County Family Division which granted David Lambert’s (hereinafter “husband”) petition for a divorce. Husband and wife separated on January 10, 1989. On December 13, 1989, husband filed a complaint in divorce on the grounds that the marriage was irretrievably broken. On April 20, 1990, wife filed a counterclaim which denied that the marriage was irretrievably broken and requested alimony, alimony pendente lite, and counsel fees. Husband answered wife’s counterclaim on June 1, 1990, and opposed the award of alimony, alimony pendente lite and counsel fees. Both parties requested equitable distribution. On October 18, 1990, wife filed a petition for special relief requesting that the court order marriage counseling and direct husband to pay counsel fees. An order directing that the parties participate in counseling was entered on November 20, 1990. As the trial court noted, “no other matters have been brought to the Court’s attention for resolution.” Trial court opinion, 5/6/92, at 2. Approximately one year after the order for counseling, on November. 7, 1991, husband filed an affidavit under Rule 1920.42 of the Pennsylvania Rules of Civil Procedure, requesting the entry of a divorce decree because the marriage was irretrievably broken. Wife did not respond to this affidavit and no master was appointed. On January 10, 1992, husband filed a notice of intent and a request for transmittal of the record for entry of the decree. On January 24, 1992, the court entered a divorce decree in favor of husband. Pursuant to a Delaware County local rule which permits the automatic bifurcation of divorce cases, the court severed the economic issues for a later decision. Wife asserts that this was error and presents three issues for our review:

(1) whether the Delaware County Court of Common Pleas’ practice of automatically bifurcating all divorce cases should be discontinued in favor of a case-by-case examination of all issues prior to bifurcation;
(2) whether the practice of automatically bifurcating all divorce cases can be upheld because it shifts the burden to the party adverse to bifurcation and consequently violates the public policy underlying the Divorce Code; and,
(3) automatic bifurcation should be eliminated because it precludes an appellate court from applying an abuse of discretion standard, since the lower court never exercises any discretion in the procedure.

Wife bears the burden of establishing that the trial court abused its discretion. We have articulated many times that:

an abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused.

Wolk v. Wolk, 318 Pa.Super. 311, 464 A.2d 1359 (1983) (citations omitted). In Wolk, this Court reversed a trial court’s automatic severance of economic issues in a divorce proceeding, consistent with under a procedure established by a local civil rule. Utilizing the abuse of discretion standard, we found that:

“so long as the trial judge assembles adequate information, thoughtfully studies this information, and then explains his decision regarding bifurcation, we defer to his discretion. In other words, this determination should be the result of a reflective examination of the individual facts of each case.”

Wolk at 318, 464 A.2d at 1362. In Wolk, this Court found error in the trial court’s entry of a divorce decree because the court did not consider the parties’ property rights or make factual findings prior to bifurcation.

Without specifically addressing each of wife’s arguments, it is clear that the trial court in this case, by utilizing the automatic bifurcation procedure established in the Delaware County local rules, failed to make any factual determinations prior to bifurcation. Therefore, we reverse the Orders and Decree of Divorce entered by the trial court on January 29, 1992, and remand for a hearing consistent with this memorandum. Jurisdiction is relinquished.

Dissenting statement by WIEAND, J.

WIEAND, Judge,

dissenting.

I respectfully dissent. The practice in Delaware County is to grant a bifurcated decree of divorce unless the other party objects. In this case, the wife-appellant did not object. I find nothing improper with the practice in Delaware County and no reason in the instant case for reversing the bifurcated decree. Therefore, I would affirm.