text:
    658 A.2d 366
    Bryan SNYDER, Appellant, v. SPECIALTY GLASS PRODUCTS, INC., B. Patel, Carol Hubbard and Frank Arrison, Appellees.
    Superior Court of Pennsylvania.
    Argued March 16, 1995.
    Filed April 27, 1995.

      Steven Cotlar, Doylestown, for appellant.
    George A. Priestley, Warminster, for appellees.
    Before HUDOCK, SAYLOR and HESTER, JJ.
   HUDOCK, Judge:

Appellant, Bryan Snyder, appeals from the trial court order of November 30, 1993 which granted Appellee’s, Specialty Glass Products, Inc., preliminary objections and the August 25, 1994 order which granted summary judgment in favor of Appellees, B. Patel, Carol Hubbard and Frank Arrison. We affirm.

This case commenced on February 26, 1993 when Bryan Snyder (Snyder) filed a complaint against his employer, Specialty Glass Products, Inc. (Specialty), for intentional infliction of emotional distress (IIED). Snyder alleged in his complaint that while on his way to work on February 17, 1993 he stopped to administer emergency medical treatment to a woman involved in a serious automobile accident. Snyder, who was certified as an Emergency Medical Technician (E.M.T.) pursuant to 35 P.S. section 6931, arrived late for work as a result of administering emergency medical treatment. Snyder claimed that when he arrived at work and explained why he was late, his supervisors B. Patel and Carol Hubbard severely reprimanded him for his tardiness and warned him that he would be discharged. Snyder claimed that he was subsequently demoted by the company president Frank Arrison and told to choose between his job as an E.M.T. or his employment with Specialty.

Snyder claimed that as a result of this reprimand and demotion he suffered emotional and physical trauma causing vomiting, nausea, severe headaches, chest pains and elevated blood pressure. Snyder also claimed that his employers’ acts caused him anxiety, depression, loss of appetite and insomnia. Alleging that he incurred costly medical bills to treat his ailments, Snyder sought compensatory and punitive damages in excess of $50,000.

Specialty filed preliminary objections on March 18, 1993 in which it contended that the court lacked subject matter jurisdiction to entertain Snyder’s suit. Specialty claimed that the Pennsylvania Workers’ Compensation Act (WCA), 77 P.S. section 1 et seq., was Snyder’s sole source of recovery.

Snyder filed an amended complaint on April 8, 1993 adding Frank Arrison, B. Patel and Carol Hubbard as defendants. The additional defendants filed preliminary objections on April 19, 1993 reasserting that the court lacked subject matter jurisdiction to entertain Snyder’s civil action pursuant to the exclusivity provisions of the WCA. The additional defendants also raised a preliminary objection asserting that Snyder’s complaint failed to state a claim upon which relief may be granted.

On November 30, 1993, the trial court granted the preliminary objection filed by Specialty challenging the court’s subject matter jurisdiction. The trial judge dismissed count one of the complaint against Specialty, concluding that the WCA was Snyder’s exclusive remedy against his employer. As for the individual defendants, the trial court ruled that they had improperly raised the preliminary objections by amendment without obtaining the court’s or Snyder’s consent. Therefore, the trial judge refused to rule on the merits of their preliminary objections.

The individual defendants thereafter filed a motion for summary judgment. The trial court granted the motion on August 25, 1994 and dismissed Snyder’s amended complaint. This direct appeal followed.

Snyder alleges that the trial court erred when it granted Specialty’s preliminary objection in the nature of a demurrer and dismissed count one of his complaint. When reviewing the grant or denial of a preliminary objection in the nature of a demurrer, we must regard the allegations in the appellant’s complaint as true and accord him all the inferences reasonably deductible therefrom. National Building Leasing, Inc. v. Byler, 252 Pa.Super. 370, 372, 381 A.2d 963, 964 (1977). “If the [appellant] does set forth a cause of action on which he is entitled to relief upon proof, the demurrer cannot be sustained. Conversely, a preliminary objection in the nature of a demurrer is properly sustained where the complaint has failed to set forth a cause of action.” Higgins v. Clearing Machine Corporation, 344 Pa.Super. 325, 327, 496 A.2d 818, 819 (1985), (citing Acme Markets, Inc. v. Valley View Shopping Center, Inc., 342 Pa.Super. 567, 569-70, 493 A.2d 736, 737 (1985)). When a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it. Martin v. Lancaster Battery Company, Inc., 530 Pa. 11, 15, 606 A.2d 444, 446 (1992).

The trial court granted Specialty’s preliminary objection in the nature of a demurrer on the grounds that Snyder’s claim was barred by section 303(a) of the WCA, codified at 77 P.S. section 481(a). That section provides:

(a) The liability of an employer under this act shall be exclusive and in place of any and all liability to such employes, his legal representative, husband or wife, parents, dependents, next of kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined in section 301(c)(1) and (2) or occupational disease as defined in section 108.

77 P.S. § 481(a) (emphasis added) (footnotes omitted).

This Court has previously explained the legislative purpose of limiting an employee’s right to sue in tort for injuries sustained in the course of employment.

The Legislature . . . enacted the Workmen’s Compensation Act to provide employees with compensation for injuries sustained within the scope of their employment. In exchange for the right to compensation without the burden of establishing fault, employees gave up their right to sue the employer in tort for injuries received in the course of employment.

Kosowan v. MDC Industries, Inc., 319 Pa.Super. 91, 98-99, 465 A.2d 1069, 1072 (1983).

Section 301(c)(1) defines the types of injuries which are compensable under the WCA. It provides:

(1) The terms “injury” and “personal injury,” as used in this act, shall be construed to mean an injury to an employe, regardless of his previous physical condition, arising in the course of his employment and related thereto, and such disease or infection as naturally results from the injury or is aggravated, reactivated or accelerated by the injury!.] • • •

77 P.S. § 411(1).

The trial court reasoned that Snyder’s alleged injury was compensable under the WCA since it arose from his employment status and occurred during the scope of his employment. Therefore, the court concluded that Snyder was bound by the exclusive remedy provision of the WCA. The trial court also concluded that Snyder did not qualify under any statutory or common law exception to the exclusivity provision of the WCA. The court relied on the Supreme Court of Pennsylvania’s rationale in Poyser v. Newman & Company, Inc., 514 Pa. 32, 522 A.2d 548 (1987), for this conclusion. In Poyser, the appellant, Stephen Poyser, filed a tort action against his employer after he lost a portion of his finger while operating a notching machine. Poyser alleged that his employer’s conduct caused his injury and constituted a “deliberate and wanton disregard for the safety of its workers[.]” Id., 514 Pa. 35, 522 A.2d at 550. Poyser argued that his employer forbade its workers from using a safety device on the notching machine and knowingly failed to comply with federal and state safety regulations. The trial court granted the employer’s judgment on the pleadings and dismissed Poyser’s complaint based on the exclusivity provision of the WCA.

On appeal Poyser argued that the immunity provision of the WCA should not apply because his employer’s conduct amounted to an intentional tort. The Supreme Court rejected Poyser’s argument and noted that the Pennsylvania WCA does not contain an exception for injuries caused by the employer’s intentional torts. The Court explained:

There is no Pennsylvania judicial authority supportive of the result the appellant seeks. The argument he presents is one based entirely on his view of the relationship between the Act and other laws and regulations which bear upon safety in the workplace....
It is true that the appellate courts of some other states have held that wanton and willful misconduct by an employer is tantamount to an intentional tort, and as such, prevents the operation of a statutory exclusive-remedy provision. It must be noted, however, that those cases rested on provisions in the state workmen’s compensation statutes which expressly preserved the right of an employee to sue in tort where his injury was caused by the employer’s intentional wrongdoing. There is no such provision in The Pennsylvania Workmen’s Compensation Act.
The appellant’s argument is an interesting one; but it is one that must be resolved by the General Assembly, not this Court. What he is asking us to do is to engraft upon section 303(a) of the Act an exception the legislature did not see fit to put there. A reading of the Act will disclose that the legislature was not unmindful of the issue of intentionally caused harm.... Since it is clear that the legislature had the issue of intentional harm in mind, and yet did not mention it in connection with section 303(a), we are constrained to conclude that the legislature did not intend the result for which the appellant argues.

Id., 514 Pa. 37, 522 A.2d at 551 (citation omitted).

The Supreme Court of Pennsylvania reaffirmed that the WCA does not provide an exclusion for intentional torts of an employer in Barber v. Pittsburgh Corning Corporation, 521 Pa. 29, 555 A.2d 766 (1989). In Barber, the Supreme Court was presented with the issue whether there is an exception to the exclusivity provision of the Occupational Disease Act (ODA) for an employee’s injuries allegedly sustained by intentional misconduct of the employer. Recognizing that the exclusivity provision of the WCA is very similar to the exclusivity provision of the ODA, the Supreme Court relied on its decision in Poyser. The Court held that “[t]he clear language of both of these sections dictates that the only remedy available to an injured employee is statutory.” Id., 521 Pa. 34, 555 A.2d at 769. The Court also pointed out that “[t]his Court has never acknowledged or recognized [an exception for intentional torts] to the exclusivity provisions of our workmen’s compensation statute.” Id., 521 Pa. 39, 555 A.2d at 771.

In Barber, our Supreme Court recognized that both the ODA and the WCA contain an exception for intentional misconduct of a fellow employee. Thus, the Court reasoned that the Legislature purposely did not provide an exception for intentional torts of the employer. The Court explained:

The significance of this provision indicates that the legislature, in its grant of immunity to fellow employees, expressly excluded intentional misconduct. However, in the immunity provided for the employer, under section 303 of the ODA no such exception was engrafted. This omission cannot be lightly ignored. It is obvious that the legislature considered the issue of intentional torts and created an exception to the statutory immunity when intentional harm was caused by the co-employee. The legislature’s failure to provide a similar exclusion to the immunity provided for the employer must be deemed to have been deliberate. This conclusion is further bolstered by the exception to the immunity in section 205 of the WCA regarding fellow employees with a corresponding absence of such an exclusion under section 303 of the WCA. This would suggest a clear legislative judgment not to recognize an intentional tort exception for employers.

Id. 521 Pa. 36, 555 A.2d at 770 (citations omitted).

The facts of Papa v. Franklin Mint Corporation, 400 Pa.Super. 358, 583 A.2d 826 (1990) (per curiam), are similar to the facts of the instant appeal. In that case, Esther Papa sued her employer for damages for depression and emotional distress allegedly caused by the intentional acts of her employer and co-employees. The trial court entered judgment on the pleadings in favor of the employer based on the exclusivity provision of the WCA. On appeal this Court affirmed and held:

The Supreme Court of Pennsylvania has held that there is no intentional tort exception to the exclusivity clause of the Workmen’s Compensation Law. See: Barber v. Pittsburgh Corning Corporation, 521 Pa. 29, 555 A.2d 766 (1989); Poyser v. Newman & Co., Inc., 514 Pa. 32, 522 A.2d 548 (1987). The exclusivity provision is not rendered ineffective merely because the claimant-employee, in proceedings to recover workmen’s compensation benefits, was unable to prove a compensable injury. For injuries allegedly occurring during the course of employment, an employee’s remedy is limited to those provided by the Act.

Id., 400 Pa.Super. 358, 583 A.2d at 826-27 (footnote omitted).

Snyder argues that our Supreme Court limited the application of Poyser in Martin v. Lancaster Battery Company, Inc., 530 Pa. 11, 606 A.2d 444 (1992). In that case the employee, who was exposed to lead fumes and dust at his place of employment, was given periodic blood tests to monitor the level of lead in his blood. The employer intentionally withheld the results of the employee’s blood test which indicated that the employee had been exposed to toxic levels of lead. The employer also intentionally altered the employee’s blood test results to conceal the elevated level of lead. The employee was subsequently diagnosed with chronic lead toxicity and related complications caused by his exposure to lead. The employee’s illness would have been less severe if the employer had not concealed the accurate test results.

The employee sued his employer alleging intentional and willful misconduct. The trial court granted the employer’s preliminary objection in the nature of a demurrer and dismissed the employee’s complaint. The trial court concluded that the employee was limited to recovery under the WCA. On appeal to this Court, we reversed and held that the employee’s claim of alleged fraudulent misrepresentation was actionable at common law. Our Supreme Court affirmed this Court’s decision and held that the employee could pursue a common law action against his employer for fraudulent misrepresentation. The Court explained:

The employee herein has alleged fraudulent misrepresentation on the part of his employer as causing the delay which aggravated a work-related injury. He is not seeking compensation for the work-related injury itself in this action. Clearly, when the Legislature enacted the Workmen’s Compensation Act in this Commonwealth, it could not have intended to insulate employers from liability for the type of flagrant misconduct at issue herein by limiting liability to the coverage provided by the Workmen’s Compensation Act. There is a difference between employers who tolerate workplace conditions that will result in a certain number of injuries or illnesses and those who actively mislead employees already suffering as the victims of workplace hazards, thereby precluding such employees from limiting their contact with the hazard and from receiving prompt medical attention and care.
The aggravation of the injury arises from and is related to the fraudulent misrepresentation of the employer. Thus, the [employee] is not limited to [his] remedies under the Workmen’s Compensation Act and [is] not precluded from bringing a common law action against [his employer].

Id., 530 Pa. 16-17, 606 A.2d at 447-48 (emphasis in original).

We agree with the trial court that the limited exception to the exclusivity of the WCA enunciated in Martin does not apply to the facts of the present case. The employee in Martin sought relief for the aggravation of his work-related injury caused by the employer’s delay in reporting accurate blood test results. The employee was not seeking damages for the work-related injury itself. Justice Zappala, in his concurring opinion in Martin, emphasized the distinction between the Court’s decisions in Poyser and Martin. He stated:

In Poyser, it was clear that although the employer disregarded safety regulations, the underlying injury was “work-related” and occurred in the course of the employee’s employment.
In this appeal, the [employee is] not seeking redress for injuries caused by exposure to lead and dust, for those injuries are covered by the Act. Instead, the [employer is] seeking damages for the aggravation to the lead-related injuries due to the employer’s failure to communicate the test results evincing [the employee’s] actual condition.

Id. 530 Pa. 20, 606 A.2d at 449 (Zappala, J., concurring).

In the present appeal, Snyder sought relief for his work-related injury; he was not seeking relief for an aggravation of that injury. Therefore, we find that the limited exception to the principles enunciated in Poyser, recognized by our Supreme Court in Martin, does not apply to this case. The trial court was correct in ruling that Snyder’s exclusive remedy for injuries allegedly sustained by his employer’s intentional tort must be recovered under the WCA. Therefore, the trial court correctly granted Specialty’s preliminary objection and dismissed Snyder’s complaint.

Snyder urges this Court to apply the rationale of the Supreme Court in Martin to engraft another exception to the exclusivity provision of the WCA. Snyder contends that where the employer violates 35 P.S. section 6931(j)(5), the employee should not be precluded by the exclusivity provision of the WCA from maintaining a cause of action outside of the workers’ compensation forum. 35 P.S. section 6931, which is part of the Emergency Medical Services Act, provides guidelines for the education, certification, training and liability of emergency medical personnel. Section 6931(j)(5) provides:

No emergency medical technician or EMT-paramedic who in good faith attempts to render emergency care authorized by this act at an emergency scene while enroute to a place of employment shall receive any form of reprimand or penalty by an employer as a result of late arrival at the place of employment. An employer may request written verification from any such emergency medical technician or EMT-paramedic, who shall obtain the written verification from either the police officer or ambulance personnel who is in charge at the emergency scene.

35 P.S. § 6931(j)(5).

Snyder argues, “[s]uch a clearly enunciated public policy of the Legislature of the Commonwealth of Pennsylvania enacted after the Workers’ Compensation Act, mandates the same result that the Supreme Court found in Martin v. Lancaster Battery Co.....” Snyder’s Brief, at p. 6.

We find it unnecessary to address Snyder’s argument whether the exclusivity provision of the WCA precludes him from maintaining a cause of action based on his employer’s alleged violation of 35 P.S. section 6931(j)(5). Snyder’s complaint sought one prayer for relief — compensatory and punitive damages caused by Specialty and the individual defendants’ intentional infliction of emotional distress. Furthermore, the record reveals that Snyder was not terminated from his employment with Specialty and has not suffered any economic loss from his employer’s alleged violation of section 6931(j)(5) of the Emergency Medical Services Act. Although Snyder alleges that he was demoted, he did not seek redress for this alleged violation of the statute. Therefore, the only issue before the trial court was whether Snyder’s cause of action for IIED was barred by the exclusivity provision of the WCA. We previously concluded that Snyder’s claim was barred and the trial court properly entered Specialty’s preliminary objection in the nature of a demurrer.

Snyder alleges an alternative ground for reversing the trial court’s decision to grant Specialty’s preliminary objection in the nature of a demurrer. Snyder claims that Specialty is collaterally estopped from claiming that exclusive jurisdiction lies within the WCA since it denied that Snyder suffered a work-related injury. Snyder attached to his complaint a notice of workers’ compensation denial which notified him that he would be ineligible for workers’ compensation. The notice indicated that Specialty denied that it owed workers’ compensation because Snyder’s injury was not work-related. Snyder claims, “it has been established as a matter of law that the injuries were not work related and [Specialty] is collaterally estopped from claiming otherwise.” Snyder’s Brief, at p. 10.

The doctrine of collateral estoppel, or issue preclusion, “operates to prevent a question of law or an issue of fact which has once been litigated and adjudicated finally in a court of competent jurisdiction from being relitigated in a subsequent suit.” Grant v. GAF Corporation, 415 Pa.Super. 137, 153-54, 608 A.2d 1047, 1056 (1992), aff'd., 536 Pa. 429, 639 A.2d 1170 (1994).

Collateral estoppel is appropriate where: (1) the issue decided in the prior action was identical with the one presented in the later action; (2) there was a final judgment on the merits; (3) the party against whom the plea is asserted was a party or in privity with a party to the prior adjudication; and (4) the party against whom the plea is asserted has had a full and fair opportunity to litigate the issue in question in a prior action.

Id., 415 Pa.Super. 148, 608 A.2d at 1053.

Applying these four elements to the facts of this appeal, we find that Snyder has failed to prove any of the elements of collateral estoppel. The issue of whether Snyder’s injury was work-related was never adjudicated in a “prior action” and there was never a final judgment on the merits as to whether Snyder’s injury was sustained in the course of work. Accordingly, Specialty is not estopped from objecting to the subject matter jurisdiction of the court based on the exclusivity clause of the WCA because it previously denied that Snyder’s injury was work-related. This denial was on a notice of denial of workers’ compensation benefits which Snyder could have challenged in the workers’ compensation forum.

Next we examine Snyder’s challenge to the trial court’s decision to grant the individual defendants’ motion for summary judgment based on a lack of subject matter jurisdiction. A motion for summary judgment may be granted only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P. 1035(b), 42 Pa.C.S.A. When reviewing the trial court’s decision to grant a summary judgment, we must examine the record in the light most favorable to the non-moving party. McGinn v. Valloti, 363 Pa.Super. 88, 89-91,

525 A.2d 732, 733 (1987), alloc. den., 517 Pa. 618, 538 A.2d 500 (1988). Summary judgment may be entered only in cases which are clear and free from doubt and any doubt must be resolved against the moving party. Id. This Court will not disturb the trial court’s decision granting summary judgment unless there has been an error of law or a manifest abuse of discretion. Schweitzer v. Rockwell International, 402 Pa.Super. 34, 39-41, 586 A.2d 383, 386 (1990), alloc. den., 529 Pa. 635, 600 A.2d 954 (1991).

The trial court granted the individual defendants’ motion for summary judgment for two reasons. First, the trial court concluded that Snyder’s claim is barred by the exclusivity provision of the WCA. Secondly, Snyder’s complaint failed to set forth a cause of action for IIED.

Snyder complains that the trial court should not have granted the additional defendants’ motion for summary judgment on the basis that his complaint failed to set forth a cause of action for IIED. Snyder contends that the trial court exceeded its authority by granting summary judgment on this ground since it was not explicitly raised in the parties’ motion.

Rule 1035 of the Pennsylvania Rules of Civil Procedure specifies when it is appropriate for the trial court to enter a summary judgment. It provides:

The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Pa.R.C.P. 1035(b).

Rule 1035 does not specify that the trial court may only grant summary judgment based on the specific grounds raised in the parties’ motion. If upon review of the entire record the trial judge determines that there is no genuine issue of material fact, and that the moving party is entitled to a judgment as a matter of law, the entry of summary judgment is warranted. See Kelly v. Ickes, 427 Pa.Super. 542, 548-50, 629 A.2d 1002, 1005 (1993).

Next, Snyder alleges that he is able to maintain a suit against the individual defendants for their intentional misconduct based on section 205 of the WCA, codified at 77 P.S. section 72. That section states:

If disability or death is compensable under this act, a person shall not be liable to anyone at common law or otherwise on account of such disability or death for any act or omission occurring while such person was in the same employ as the person disabled or killed, except for intentional wrong.

77 P.S. § 72 (emphasis added). Snyder asserts that B. Patel and Carol Hubbard committed the “intentional wrong” of IIED.

In McGinn v. Valloti, supra, 363 Pa.Super. 88, 525 A.2d 732, this Court enunciated a test to determine which intentional torts would give rise to a cause of action under section 205 of the WCA. The Court explained, “we examine whether the ‘intentional wrong’ is one that is not normally expected to be present in the workplace.” McGinn, 363 Pa.Super. 94, 525 A.2d at 735. The Court provided examples of intentional torts which an employee would not normally expect to be subjected to while at the workplace. The Court surmised that an employee does not normally expect a physical assault or infliction of emotional distress, yet may expect a knowing violation of safety regulations.

Snyder relies on the following language in McGinn:

An employee does not normally expect a physical assault, and an employee does not normally expect infliction of emotional distress; therefore these intentional torts have been found to be actionable.

Id. (citations omitted).

Despite this statement enunciated in McGinn, we do not find that the intentional tort allegedly committed by Patel, Hubbard and Arrison is one that Snyder would not normally expect to be present in the workplace. Snyder avers in his amended complaint that these individual defendants severely reprimanded him for his tardiness, threatened to discharge him, and demoted him to an entry-level position. These acts clearly are ones which an employee such as Snyder would expect to occur at the workplace. Therefore, under the test enunciated in McGinn, Snyder’s allegation of IIED does not qualify under the co-employee immunity provision in section 205 of the WCA.

Snyder also contends that his injury caused by the individual defendants’ intentional tort falls under the “personal animus” exception of the WCA. See Kohler v. McCrory Stores, 532 Pa. 130, 615 A.2d 27 (1992). The WCA’s definition of “personal injury” provides in pertinent part:

The term “injury arising in the course of his employment,” as used in this article, shall not include an injury caused by an act of a third person intended to injure the employe because of reasons personal to him, and not directed against him as an employe or because of his employment;....

77 P.S. § 411(1) (emphasis added).

Snyder claims that he qualifies under this exception to the exclusivity provision of the WCA because his supervisors B. Patel and Carol Hubbard committed the IIED motivated by personal animosity. In response to the individual defendants’ motion for summary judgment, Snyder submitted the affidavit of Michael Fuller, a fellow employee of Specialty. This affidavit alleged that Fuller observed Patel and Hubbard direct personal animosity towards Snyder for no apparent reason. Snyder claims that the trial court should not have granted the motion for summary judgment since Fuller’s affidavit raises a genuine issue as to whether Patel and Hubbard were motivated by personal animosity when they allegedly committed the intentional tort of IIED.

In order for Snyder’s claim to have merit, we must first address whether the allegations in Snyder’s complaint, accepted as true, adequately set forth a claim for IIED.

The gravamen of the tort of IIED is outrageous conduct on the part of the tortfeasor. Kazatsky v. King David Memorial Park, Inc., 515 Pa. 183, 189-91, 527 A.2d 988, 991 (1987). Although Section 46 of the Restatement (Second) of Torts has never been expressly adopted as the law of Pennsylvania, Pennsylvania courts often refer to that section to define the elements of this tort. Section 46(1) of the Restatement (Second) of Torts provides:

§ 46. Outrageous Conduct Causing Severe Emotional Distress
(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

Restatement (Second) of Torts, § 46(1).

The commentary to section 46(1) makes it clear that the conduct contemplated by this tort must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Restatement (Second) of Torts, § 46 comment d (1965). See also Buczek v. First National Bank of Mifflintown, 366 Pa.Super. 551, 558, 531 A.2d 1122, 1125 (1987). “Pennsylvania courts have found a cause of action for [IIED] to exist only in limited circumstances, where the conduct has been clearly outrageous.” Rinehimer v. Luzerne County Community College, 372 Pa.Super. 480, 495, 539 A.2d 1298, 1305 (1988), alloc. den., 521 Pa. 606, 555 A.2d 116 (1988). Moreover, “[t]he liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” Restatement (Second) of Torts, § 46 comment d (1965).

Snyder alleges in his amended complaint that his employers “screamed at him for being late,” “told him he would have to choose between being an Emergency Medical Technician and his employment,” “reprimanded [him] for his late arrival,” and “demoted [him] to his entry level position.” See Snyder’s Amended Complaint, at p. 4. We do not find that this conduct, if accepted as true, would rise to the level of outrageousness required to permit recovery for IIED.

Because the facts pled by Snyder are legally insufficient to support a cause of action for IIED, we need not address his contention that Patel and Hubbard committed this intentional tort for personal reasons.

Orders affirmed.

      . We note that the Emergency Medical Services Act does not specify a remedy for an alleged violation of section 6931(j)(5). However, section 6936 of the Act does provide that any person who violates "any other provision of this act” commits a summary offense. See 35 P.S. § 6936.

      . At argument, Snyder presented one additional issue not raised in his brief. He alleged that Specialty was equitably estopped from claiming that the WCA provides Snyder’s exclusive remedy. Snyder did not raise the issue of equitable estoppel in his statement of questions presented. Therefore, this issue is waived. See Harkins v. Calumet Realty Company, 418 Pa.Super. 405, 412-14, 614 A.2d 699, 703 (1992) (issues not raised in statement of questions presented are deemed waived).

      . We recognize that the doctrine of collateral estoppel applies when the prior judgment was made in an administrative hearing such as the Workers’ Compensation Board. See Grant v. GAF Corp., 415 Pa.Super. 152, 608 A.2d at 1055.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    658 A.2d 375
    Charles E. JOHNSON, Appellant, v. David DESMOND, Robert Shearer, William Kelly, Harry Randall, Jim Eiseworth, Appellees.
    Superior Court of Pennsylvania.
    Submitted Dec. 12, 1994.
    Filed April 28, 1995.

      Charles E. Johnson, appellant, pro se.
    R. Matthew Patch, Williamsport, for Desmond, Shearer, Kelly and Randall, appellees.
    Jim Eiseworth, appellee, pro se.
    Before WIEAND, HUDOCK and HESTER, JJ.
   WIEAND, Judge:

In this action brought pursuant to 42 U.S.C. § 1983 to recover damages for an alleged violation of plaintiffs federal constitutional rights to be free from cruel and unusual punishment and to equal protection of the law, the trial court entered summary judgment in favor of the defendant-correctional officers. After careful review, we reverse and remand for further proceedings.

On October 30, 1989, Charles Johnson was an inmate at the Lycoming County Prison. While asleep in his cell, he was awakened by William Kelly, a correctional officer, who shook and banged upon the cell gate and ordered Johnson out of bed. When Johnson reached the front of his cell, he turned around because of a noise behind him and saw a person emerge from under his bed covered with a white sheet. After Johnson had registered fright, he said, Jim Eiswerth, another correctional officer, removed the sheet from his person and left the cellblock with Kelly. Both correctional officers were then laughing, and, later, other corrections officers also joked about the incident.

Johnson filed pro se an action alleging that his civil rights had been violated. Although preliminary objections effected a dismissal of the action as to additional corrections officers, the action against Kelly and Eiswerth was allowed to continue, and Johnson was directed to file an amended complaint. After an amended complaint had been filed and Johnson’s depositions had been taken, Kelly and Eiswerth filed a motion for summary judgment. The trial court granted this motion, holding that there had been no violation of Johnson’s rights under the Constitution.

Appellant’s first contention is that the trial court should have appointed counsel to represent him. In actions brought in the federal courts, counsel has occasionally been appointed to represent an indigent prisoner having a meritorious civil rights claim. The authority for such appointment has been found in 28 U.S.C. § 1915(d). See: Hodge v. Police Officers, 802 F.2d 58 (2d Cir.1986); Pugh v. Locke, 406 F.Supp. 318 (M.D.Ala.1976), affirmed and modified on other grounds sub nom., Newman v. Alabama, 559 F.2d 283 (5th Cir.1977), cert. denied, 438 U.S. 915, 98 S.Ct. 3144, 57 L.Ed.2d 1160 (1978). This statute, however, has no applicability to the state courts. There is no authority in this Commonwealth for the appointment of counsel to represent parties in civil actions. See: Weir v. Weir, 428 Pa.Super. 515, 528, 631 A.2d 650, 656 (1993) (reviewing Pennsylvania law and recognizing right to counsel in dependency hearings, proceedings to terminate parental rights and involuntary civil commitment proceedings). The trial court did not err by failing to appoint counsel to represent Johnson in this civil action.

In order to state a valid claim under 42 U.S.C. § 1983, a party must establish two essential elements: (1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct deprived the plaintiff of rights, privileges, or immunities secured by the Constitution or laws of the United States. Oatess v. Norris, 431 Pa.Super. 599, 602, 637 A.2d 627, 629 (1994), citing Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420, 428 (1981). In this case, the first element is satisfied because the conduct complained of was committed by two state prison guards acting while employed to watch over the plaintiff-prisoner.

The Fourth Amendment of the United States Constitution protects the “right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” However, the United States Supreme Court determined that the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell because the recognition of privacy rights for prisoners in their individual cells cannot be reconciled with the concept of incarceration and the needs and objectives of penal institutions. Hudson v. Palmer, 468 U.S. 517, 526, 104 S.Ct. 3194, 3200, 82 L.Ed.2d 393, 402-403 (1984). Thus, even under the unusual circumstances of this case, the entry of appellant’s cell by the corrections officers would not constitute a violation of the Fourth Amendment. See: Proudfoot v. Williams, 803 F.Supp. 1048, 1051 (E.D.Pa.1992).

In Hudson v. Palmer, supra, the Supreme Court said that while a prisoner’s Fourth Amendment rights are curtailed, the Eighth Amendment of the United States Constitution may provide a remedy for calculated harassment unrelated to prison needs. Id. at 530, 104 S.Ct. at 3202, 82 L.Ed.2d at 405. See also: Proudfoot v. Williams, supra at 1051 (“Searches [of prisoner’s cell] can only rise to an Eighth Amendment violation when they are conducted for ‘calculated harassment.’ ”). The Eighth Amendment protects against “cruel and unusual punishments,” and is a concept of wide application. In Commonwealth ex rel. Bryant v. Hendrick, 444 Pa. 83, 280 A.2d 110 (1971), the Supreme Court of Pennsylvania said:

Just what constitutes cruel and unusual punishment in the constitutional sense is a matter which defies concrete definition. However, it has long been understood that the concept of cruel and unusual punishment is one of wide application, capable of acquiring new depth of meaning to conform to more enlightened concepts of criminal justice. In Prop v. Dulles, 356 U.S. 86, 78 S.Ct. 590 [2 L.Ed.2d 630] (1958), the Supreme Court wrote: “The exact scope of the constitutional phrase ‘cruel and unusual’ has not been detailed by this Court. But the basic policy reflected in these words is firmly established in the Anglo-American tradition of criminal justice. The phrase in our Constitution was taken directly from the English Declaration of Rights of 1688, and the principle it represents can be traced back to the Magna Carta. The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. While the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards.... The Court recognized in [Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910) ] that case that the words of the Amendment are not precise, and that their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” [Footnotes omitted.] [Emphasis supplied.] Id. [356 U.S.] at 99-101, 78 S.Ct. [at] 597, 598.

Id. 444 Pa. at 95, 280 A.2d at 116. Underpinning the entire body of Eighth Amendment jurisprudence is the “dignity of man.” Id. “Intentional harassment of even the most hardened criminals cannot be tolerated by a civil society.” Hudson v. Palmer, supra at 528, 104 S.Ct. at 3201, 82 L.Ed.2d at 404.

Not every wrong rises to the level of a constitutional violation. The Civil Rights Act does not seek to redress every injury which might be actionable under a state or common law tort remedy. Ricketts v. Derello, 574 F.Supp. 645, 646 (E.D.Pa.1983). See also: Hudson v. Palmer, supra at 530, 104 S.Ct. at 3202, 82 L.Ed.2d at 405; Ingraham v. Wright, 430 U.S. 651, 670, 97 S.Ct. 1401, 1412, 51 L.Ed.2d 711, 729 (1977) (violation of prisoner’s Eighth Amendment rights must involve the unnecessary and wanton infliction of pain); Black Spotted, Horse v. Else, 767 F.2d 516, 517 (8th Cir.1985) (allegation that prison guard caused relatively minor injury to prisoner’s leg, poked him in back, and spoke in belligerent tone may amount to battery under state law, but failed to state claim under the Eighth Amendment); Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.1973) (although a complainant may have a cause of action in battery, not every unnecessary push or shove violates a prisoner’s constitutional rights); Merritt-Bey v. Salts, 747 F.Supp. 536 (E.D.Mo.1990), affirmed, 938 F.2d 187 (8th Cir. 1991) (no constitutional violation where female guard remarked to male prisoner during authorized strip search, “So, it’s not true what they say about blacks anyway.”); Wright v. Santoro, 714 F.Supp. 665 (S.D.N.Y.1989), affirmed, 891 F.2d 278 (2d Cir.1989) (no constitutional violation where guard remarked to prisoner, “Get your black ass out of my office” and “I’ll lock your black ass up.”).

An Eighth Amendment violation was found to exist, however, where prisoners, because of their race, were treated differently for purposes of administering an established prison work program. See: Brown v. Sumner, 701 F.Supp. 762 (D.Nev.1988). An Eighth Amendment violation was also found in Pugh v. Locke, supra, 406 F.Supp. 318, where a class of prisoners had been subjected to grossly unsanitary conditions, without opportunity for exercise and recreation, and for whom inadequate medical care had been provided. The potential for an Eighth Amendment violation was found where a prisoner admittedly suffered no physical contact or physical injuries, but was frightened and sought psychiatric counseling, after a guard in the kitchen allegedly had drawn the blade of a knife across another prisoner’s hand, causing bleeding, and thereafter turned to the complainant and asked “you want some of this too?” Smith v. Aldingers, 999 F.2d 109 (5th Cir.1993).

It is true, as appellees argue, that appellant does not contend that he was touched by the correctional officers during their masquerade. Nevertheless, we conclude that appellant’s testimony is sufficient, if believed, to demonstrate an attempt to harass and inflict emotional distress upon him in violation of his Eighth Amendment right to be free of cruel and unusual punishment. Where an Afro-American prisoner is awakened from his nighttime sleep and summoned by a guard to the front of his cell so that another guard, in a white sheet, perhaps suggestive of Ku Klux Klan activity, can approach from behind and frighten the prisoner, such conduct could be found by a jury to exceed the limits of civilized standards and constitute harassment in violation of the Eighth Amendment guarantee against cruel and unusual punishment.

It also suggests unequal treatment of plaintiff because of his race and, therefore, may constitute a violation of the Fourteenth Amendment guarantee of equal protection under the law. See: Thomas v. Brierley, 481 F.2d 660 (3rd Cir.1973) (refusal to allow visitors because of prisoner’s race violates the equal protection clause of Fourteenth Amendment). See also: Burton v. Livingston, 791 F.2d 97, 100 (8th Cir.1986) (prisoner retains right to be free from terror of instant and unexpected death at whim of allegedly bigoted custodians).

It may be that ultimately a jury will find the guards’ conduct to be an innocent Halloween prank. See: Wyatt v. Delaney, 818 F.2d 21, 24 (8th Cir.1987) (fact finder should consider extent of emotional injury, even though injury was intentionally caused and was not for purpose of prison security, and could conclude injury was only “bruised feelings” and thus de minimis under federal law). At the present time, however, it cannot be said finally and as a matter of law that prison personnel did not act intentionally and maliciously to inflict cruel and unusual punishment upon appellant because of his race. Therefore, it was error for the trial court to enter summary judgment in favor of the guards. In ruling upon a motion for summary judgment, a court must examine the record in a light most favorable to the non-moving party, and any doubt must be resolved against the moving party. Oatess v. Norris, supra, 431 Pa.Super. 599, 637 A.2d 627.

Reversed and remanded for further proceedings consistent with the foregoing opinion. Jurisdiction is not retained.

      . The record shows "Eiswerth”, not Eiseworth, as the correct spelling of defendant-appellee's surname.


author: OLSZEWSKI, Judge:

text:
    658 A.2d 379
    BEACH STREET CORP. (Formerly Longmead Homes, Inc.), Appellant, v. A.P. CONSTRUCTION CO., INC., Gerald P. Masgai & Son, Inc., Jeffrey M. Brown Associates, Inc., Port Richmond Village Associates, Inc. and City of Philadelphia.
    Superior Court of Pennsylvania.
    Submitted March 20, 1995.
    Filed May 2, 1995.

      Joseph R. Glancey, Philadelphia, for appellant.
    Joseph A. Breymeier, Philadelphia, for appellees.
    Before OLSZEWSKI, POPOVICH and BROSKY, JJ.
   OLSZEWSKI, Judge:

In late 1984, the City of Philadelphia hired appellee, A.P. Construction, to build a storm sewer through the Old Cramps Shipyard, near the Delaware River. A.P. worked on the project from 1985 until February of 1988. In building the storm sewer, A.P. Construction dumped debris (called “soil and spoil” below) onto the Beach Street property owned by John Connelly and the Estate of Louis Silverstein.

In November of 1989, Connelly and Silverstein sold the Beach Street property to Longmead Homes, which later became appellant, the Beach Street Corporation. In August of 1990, Beach Street filed a complaint in trespass against A.P. Construction, demanding that A.P. remove the debris from its property.

The trial court rejected Beach Street’s claims. After a bench trial, it ruled that the trespass was permanent, not continuing, since the dumping was completed by February of 1988 and had effected a permanent change to the condition of the land. Therefore, Beach Street had to file its trespass claim by February of 1990 to meet the two-year statute of limitations. 42 Pa.C.S.A. § 5524(4). The court also held that Beach Street did not even have standing to bring this action, since the right to sue for trespass is personal to the possessor of the land when the trespass occurs. The right to sue does not pass by deed or conveyance. Potts Run Coal Co. v. Benjamin Coal Co., 285 Pa.Super. 128, 426 A.2d 1175 (1981).

On appeal, Beach Street argues that the dumped debris should be regarded as a continuing trespass, so that it would have the option to bring an action any time it chooses. The trial court correctly rejected this spurious claim. While this action is thus time-barred, we think the more powerful rationale for dismissal is Beach Street’s lack of standing.

Beach Street bought property that had been partially covered with mounds of “soil and spoil.” There is no question that before purchasing the property, Beach Street could have inspected it and discovered the debris, which had been sitting there for the past two years. Beach Street did not demand that the seller first remove the debris, or make any arrangements for its removal. Rather, Beach Street took a deed for the property as it was, and decided to bring a trespass action over two years later.

It is well-settled that any right to sue for the trespass belongs solely to the possessor at the time of the trespass, and does not pass by deed. See Potts Run Coal, supra; Carlisle Borough v. Fladger, 157 Pa.Super. 206, 207-08, 42 A.2d 187, 188 (1945) (citing McFadden v. Johnson, 72 Pa. 335 (1873)). The productive development of land inevitably entails the sort of changes which happened to Beach Street’s property. If real estate development is to be encouraged, the law must at some point cut off potential future liability for changes in the condition of land. The logical point to wipe the slate clean is with a change in ownership. When a buyer can discover the topographical condition of land by simple visual inspection, she will be deemed to have accepted the land “as is” when she accepts the deed. Beach Street bought this land with plainly visible piles of debris; it cannot now claim that the dumping which took place years earlier constitutes a trespass to its possessory rights.

Affirmed.

      . The exhibits contain photographs which show that the mounds consist of soil and hunks of broken concrete. We therefore deduce that "spoil" refers to such earthy substances as concrete.

      . It is conceivable that the personal right to sue for this trespass could have been transferred as a chose in action. Beach Street makes no argument that it acquired its trespass claim in this manner.

      . Federal environmental laws appear to be an exception to this policy, and also appear to discourage real estate development. Of course, the nature and policy behind environmental liability are quite different from the traditional trespass liability for dumping piles of dirt and rubble.


author: HUDOCK, Judge:

text:
    658 A.2d 380
    Merlyn J. JENKINS, Appellant, v. COUNTY OF SCHUYLKILL, Appellee.
    Superior Court of Pennsylvania.
    Argued March 16, 1995.
    Filed May 8, 1995.

      Donald A. Bailey, Harrisburg, for appellant.
    Joseph H. Jones, Jr., Pottsville, for appellee.
    Before HUDOCK, SAYLOR and HESTER, JJ.
   HUDOCK, Judge:

Merlyn J. Jenkins (Appellant) appeals from the order entered by the trial court sustaining the preliminary objections in the nature of a demurrer filed by the County of Schuylkill (Appellee). We affirm.

In February of 1992, the Schuylkill County Board of Commissioners advertised in local papers seeking a “Request for Proposal” for the leasing of a building to be used for Schuylkill County’s 911 Emergency Management Center. The advertisement specified, in pertinent part, that “[t]he Schuylkill County Commissioners reserve the right to reject any or all offers or to waive any informalities or defects or to negotiate for better terms.” See Request for Proposal, at Plaintiffs Exhibit 1. All persons wishing to submit a proposal were required to follow the mandates set forth in the “Proposal Submission Package” which could be obtained at the county’s Chief Clerk’s office. A letter written by Appellee, which accompanied the proposal submission package, also stated, in pertinent part, that “[a]ny negotiations between proposal submitters and the Department of Real Estate must be reduced to a written agreement and are subject to approval by the Board of Commissioners.” See Proposal Submission Package, ¶ 2. Further, the letter stated that Appellee would not be responsible for any costs that the proposal submitter might incur in preparing the proposal. See Proposal Submission Package, ¶ 3.

On or about February 26, 1992, Appellant submitted a proposal package to Appellee. On May 13,1992, Tom Rhoads, P.E., the Real Estate Director of the county, corresponded with Appellant through the following letter:

This letter is to acknowledge the action of the Board of County Commissioners selecting the Park Hotel proposal as the prime candidate for the EOC/911 Center. The County desires to consummate a lease within the next thirty (30) days; good faith negotiations to conclude the lease development are to begin Thursday, May 14, 1992 at 3:00 p.m. in the Court House. This brief one hour meeting will outline the lease items and project specifics which we will finalize in the next thirty (30) days. The attached memo describes the construction related requirements to be perfected.
Please be advised that your proposal is not accepted until the Board of County Commissioners takes official action on a lease.
You are to be congratulated on the progress of the Park Hotel proposal. I look forward to the project’s continued success.

Letter, 5/13/92, at Plaintiffs Exhibit 3 (emphasis added). Thereafter, between May 14 and June 17,1992, several negotiation meetings were held between Appellant and Appellee. Appellant claims that in this time period, he was required to change the floor plans at least four times. However, by letter dated June 19, 1992, the county Board of Commissioners notified Appellant that it wished to terminate all further negotiations. As its basis, the Commissioners cited Appellant’s “non-compliance in providing your construction documents and evidence of financing as required.... ” Letter, 6/19/92, at Plaintiffs Exhibit 4.

On April 14,1994, Appellant filed a complaint against Appellee alleging that Appellee breached an implied contract and that Appellee breached an agreement to negotiate in good faith. Appellant asserted that Appellee “substantially and unreasonably” altered many of the specifications from those originally enumerated in the Proposal Submission Package. Specifically, Appellant averred that Appellee, in failing to negotiate in good faith: 1) often amended the square footage to be obtained in the lease, causing Appellant to use the first two floors of the building rather than just the first; 2) added the requirement of on-site parking; 3) added the requirement of an elevator; 4) required that all materials used be fireproof; 5) failed to provide Appellant with necessary telecommunications information; 6) required Appellant to offer a firm completion date before the lease was awarded; and 7) required Appellant to obtain a building permit before the lease was awarded. See Complaint, at pp. 4-7. Appellant claimed that Appellee’s continuous changes of the plans made it impossible for Appellant to meet the time requirement imposed by Appellee. Among these changes which Appellant claims were not in the original proposal package were the following: 1) Appellee required Appellant to provide unused space in the center for which Appellant would not be compensated; 2) Appellee required Appellant to provide a cost breakdown; 3) Appellee required Appellant to obtain a letter of credit, a letter of commitment for construction, and a contractor’s performance bond; 4) Appellee required a utility rate decrease; 5) Appellee sought to implement a buyout clause starting in the fifteenth year of the lease; 6) Appellee required complete engineering specifications and “bid-ready” working plans; and 7) Appellee implemented a design completion schedule. See Complaint, at pp. 7-10. Appellant alleged that from the time of his original bid submission, the parties were to enter into “good faith negotiations” for a fifty-year lease agreement in conformity with the one set forth in the Proposal Submission Package, and such was breached. Specifically, it is averred that:

By virtue of [Appellee’s] conduct as above set forth, [Appellee] breached an implied contract in fact between the parties, under the terms of which the parties, viz., [Appellant] and [Appellee], would, by virtue of [Appellant’s] original bid submission, enter into “good faith negotiations” for the parties to enter into a fifty-year lease agreement of a building substantially in conformity with the original specifications referred to in [the “Request for Proposal.”]

Complaint, ¶ 20.

As damages, Appellant alleged that he should be compensated in the amount of $909,593.00 for Appellee’s breach of contract. In the alternative, he claimed that he should receive $68,969.07 in damages for Appellee’s breach of duty to negotiate in good faith. This sum may be broken down as follows:

a. For expenses involved during the period November 15, 1991, to February 26, 1992, to prepare response to request for proposals from [Appellee] - $8,729.81.
b. For expenses involved with various conversations, dealings, computations for additional item pricing, and site reviews with various representatives of [Appellee] during the period February 27, 1992, to May 12, 1992, inclusive _ $7,764.96.
c. Expense to negotiate with representatives of [Appellee] and to prepare five major plan options of varying square footage and levels, preparation of details, working drawings, specifications, and related activities; and, including the hiring of special private professional consultants to act and react to [Appellee’s] demands, requests, and requirements in the negotiating process from May 13, 1992, to June 22, 1992, inclusive _ $52,474.30.

Complaint, ¶ 21.

In response to the complaint, Appellee filed preliminary objections in the nature of a demurrer. By order dated August 19, 1994, the trial court granted Appellee’s preliminary objections. This direct appeal followed.

Our standard of review is as follows:

On review of an order sustaining preliminary objections in the nature of a demurrer and dismissing a complaint, our review is plenary. We must determine if the trial court correctly determined that, taking as true all properly pleaded material facts and disregarding all pleaded conclusions of law, under no circumstances will the law permit recovery on the complaint.

Bleday v. OUM Group, 435 Pa.Super. 395, 399, 645 A.2d 1358, 1360 (1994) (citing Pysh v. Security Pacific Housing Service, 416 Pa.Super. 64, 69, 610 A.2d 973, 975 (1992), alloc. den., 533 Pa. 625, 620 A.2d 491 (1993)). Also, we add that we are not bound to accept as true any averments in a complaint which are in conflict with exhibits which are attached to the complaint. Philmar Mid-Atlantic, Inc. v. York Street Associates II, 389 Pa.Super. 297, 299-301, 566 A.2d 1253, 1254 (1989).

Appellant breaks his argument into two parts. First, he claims that Appellee unilaterally terminated negotiations and this caused a material breach of contract. Appellant claims that on May 13,1992, when Appellee engaged Appellant as the “prime candidate” for purposes of negotiations, a contract was formed. Thus, Appellant claims that there was a “breach of contract in the form of an unjustified termination of the selection of the Appellant as the lessor.” Appellant’s Brief, at p. 12. Appellant claims that he spent $52,474.30 in trying to accommodate Appellee’s needs in reliance upon the alleged contract.

Because we cannot find that a contract has been formed, we cannot find merit in this argument. It is black letter law that in order to form an enforceable contract, there must be an offer, acceptance, consideration or mutual meeting of the minds. Schreiber v. Olan Mills, 426 Pa.Super. 537, 541-42, 627 A.2d 806, 808 (1993). It is also well-settled that “[ajbsent 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.” Philmar, 566 A.2d at 1255.

In the present case, there clearly was no contract. Despite the fact that the May 13, 1992 letter identified Appellant as the prime candidate for the emergency center, this clearly does not evidence an intention to be bound. The letter makes it clear that no contract could be entered into between the parties until an agreement was confirmed and accepted by the Schuylkill County Board of Commissioners. Because there was not approval by the commissioners, Appellant’s claim must fail.

In his second argument, Appellant avers that the actions of the parties constituted an agreement to negotiate in good faith and because of the constant changes demanded by Appellee, Appellee failed to negotiate in good faith. In support of his argument that such cause of action is cognizable in this Commonwealth, Appellant cites Channel Home Centers, Division of Grace Retail Corp. v. Grossman, 795 F.2d 291 (3d Cir.1986). In Grossman, the court was presented with the following issue:

[WJhether, under Pennsylvania law, a property owner’s promise to a prospective tenant, pursuant to a detailed letter of intent, to negotiate in good faith with the prospective tenant and to withdraw the lease premises from the marketplace during the negotiation, can bind the owner for a reasonable period of time where the prospective tenant has expended significant sums of money in connection with the lease negotiations and preparation and where there was evidence that the letter of intent was of significant value to the property owner.

Id. at 292. In that case, Bruce and Jeffrey Grossman (the Grossmans), in toying to develop a local mall, contacted Channel Home Centers (Channel) to toy to obtain a lease from Channel as one of the mall’s anchor stores. In expressing its desire to enter into the lease, Channel executed a detailed letter of intent which included the commitment that during the period of negotiating the lease, the Grossmans were to take the store off the rental market. The letter of intent also contained detailed terms concerning the lease, including the area of the store, the terms of the rent, the option period, taxes, the landlord’s pre-term responsibilities and maintenance terms. Id. at 293, n. 2. However, when no lease was signed within thirty days of the letter of intent, the Grossmans cancelled all further negotiations. Channel thus instituted this lawsuit. Channel argued that “[b]y unilaterally terminating negotiations with Channel and precipitously entering into a lease agreement with [another company], ..., Grossman acted in bad faith and breached his promise to ‘withdraw the Store from the rental market and only negotiate the above-described leasing transaction to completion.’ ” Id. at 298. The District Court rejected Channel’s claim that the letter of intent bound the parties to a contract. On appeal to the third circuit, Channel argued that the letter of intent, in totality with the surrounding' circumstances, constituted a promise to negotiate in good faith. In deciding this matter, the court recognized that “evidence of preliminary negotiations or an agreement to enter into a binding contract in the future does not alone constitute a contract.” Id. However, the court stressed that Channel was not arguing that a lease existed, but rather that there was a mutually binding obligation to negotiate in good faith. The court, relying on Pennsylvania contract law, was guided by the following three-part test to determine whether an agreement is enforceable: 1) whether both parties manifested an intention to be bound by the agreement; 2) whether the terms of the agreement are sufficiently definite to be enforced; and 3) whether there was consideration. Id. at 298-99. Thus, the court had to determine whether an agreement to negotiate in good faith met these requirements.

After reviewing the record, the court found that the parties intended to be bound. The court explained:

After the letter of intent was executed, both Channel and the Grossmans initiated procedures directed toward satisfaction of lease contingencies. Channel directed its parent corporation to prepare a draft lease; Channel planning representatives visited the lease premises to obtain measurements for architectural alterations, renovations, and related construction. Channel developed extensive marketing plans; delivery schedules were prepared and material and equipment deemed necessary for the store were purchased. The Grossmans applied to the township zoning committee for permission to erect Channel signs at various locations on the mall property. Channel submitted a draft lease on January 11, 1985, and the parties, through correspondence and telephone conversations and on-site visits, exhibited an intent to move toward a lease as late as January 23,1985.....Accordingly, the letter of intent and the circumstances surrounding its adoption both support a finding that the parties intended to be bound by an agreement to negotiate in good faith.

Id. at 299-300. Asserting that a cause of action for breach of good faith negotiations should be cognizable in Pennsylvania, Appellant claims that the three-part test enunciated in Gross-man has been satisfied. Therefore, Appellant states that Appellee breached this agreement because it did not use its best efforts to reach an agreement to have Appellant provide lease space to the county.

The cause of action for breach of an obligation to negotiate in good faith was discussed in A/S Apothekernes Laboratorium For Specialpraeparater v. I.M.C. Chemical Group, Inc., 873 F.2d 155 (7th Cir.1989). The court stated:

The obligation to negotiate in good faith has been generally described as preventing one party from, “renouncing the deal, abandoning the negotiations, or insisting on conditions that do not conform to the preliminary agreement.” [Teachers Insurance and Annuity Ass’n v. Tribune Co., 670 F.Supp. 491, 498 (S.D.N.Y.1987).] For instance, a party might breach its obligation to bargain in good faith by unreasonably insisting on a condition outside the scope of the parties’ preliminary agreement, especially where such insistence is a thinly disguised pretext for scotching the deal because of an unfavorable change in market conditions. Id. at 506. The full extent of a party’s duty to negotiate in good faith can only be determined, however, from the terms of the letter of intent itself. For example, our recent decision in [Feldman v. Allegheny International, Inc.], 850 F.2d 1217 (7th Cir.1988), demonstrates how the terms of the letter of intent control the scope of the obligation to bargain in good faith. In that case, the letter provided only that the potential seller would not “hold discussions or negotiate with any person other than [the potential buyer] ... while the proposed acquisition [was] being pursued.” 850 F.2d at 1219. With the exception of setting a minimum cash component for the proposed sale, the letter did not set forth any previously agreed upon terms much less provide a general framework within which the parties intended to conduct their negotiations. As it turned out, such a commitment was not much of a commitment at all. It simply bound the seller to negotiate exclusively with the buyer in good faith until they disagreed; this was the full extent of the parties’ obligation. In the absence of any agreed upon terms or even a general framework within which to conduct the negotiations, the parties were free to insist on or reject any proposed terms to the contract that they wished. As we explained in [Feldman],
In a business transaction both sides presumably try to get the best of the deal. That is the essence of bargaining and the free market. And in the context of this case, no legal rule bounds the run of business interest. So one cannot characterize self-interest as bad faith. No particular demand in negotiations could be termed dishonest, even if it seemed outrageous to the other party. The proper recourse is to walk away from the bargaining table, not to sue for “bad faith” in negotiations.
Id. at 1223. Thus, the scope of any obligation to negotiate in good faith can only be determined from the framework the parties have established for themselves in their letter of intent.

Apothekernes, 873 F.2d at 158-59.

Without determining whether a cause of action for breach of a duty to negotiate in good faith exists in Pennsylvania, it is evident that the facts as pleaded in this matter do not give rise to such a cause of action. From the record, we can discern nothing that sets forth the terms of the bid proposal package. In fact, the letter dated May 13, 1992 from Mr. Rhoads to Appellant specifically states that, at an upcoming meeting, “[the parties] will outline the lease items and project specifics which we will finalize in the next thirty (30) days.” See Plaintiffs Exhibit 3. This clearly is not a detailed letter of intent and thus, this cause of action will not apply. It appears that at the time of the letter, no specific terms were even agreed upon. Moreover, the language of this letter does not reveal that the parties intended to be bound by any terms of the original specifications.

Order affirmed.


author: WIEAND, Judge.

text:
    658 A.2d 386
    COMMONWEALTH of Pennsylvania v. Reese Lanier HODGE, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 3, 1995.
    Filed May 8, 1995.

      Phyllis A. Jin, Uniontown, for appellant.
    Mark D. Brooks, Asst. Dist. Atty., Connellsville, for Com., appellee.
    Before WIEAND, OLSZEWSKI and HESTER, JJ.
   WIEAND, Judge.

Reese Lanier Hodge was tried by jury and, on December 6, 1994, was found guilty of possession of a controlled substance, possession of a controlled substance with intent to deliver and delivery of a controlled substance. He was sentenced on December 13, 1994, to serve a term of imprisonment for not less than fifteen (15) months nor more than five (5) years, to pay the costs of prosecution, to forfeit the sum of $400.00 to Fayette County and to make restitution in the amount of $100.00 to the Region Five Drug Strike Force. On direct appeal from the judgment of sentence, Hodge asserts that the evidence was insufficient to sustain his convictions, or, alternatively, that the jury’s verdicts of guilty were contrary to the weight of the evidence.

On July 16, 1993, at or about 3:30 p.m., Conrad Williams of the Pennsylvania State Police was working undercover with the Region Five Drug Strike Force in the City of Uniontown. He was parked in an unmarked police vehicle across the street from Uniontown High School. Appellant approached the vehicle from the rear, greeted Williams and asked him if he needed anything. Williams, believing that appellant was offering to sell him drugs, told appellant that he would take a hundred dollars worth. Appellant said that he would return in five or ten minutes and then walked away. About six minutes later, appellant returned and gave Williams a plastic baggie containing several small rocks of crack cocaine. After Williams had given him a one hundred dollar bill, appellant walked away. Williams then returned to the state police barracks and field tested the substance which had been purchased from appellant. The test was positive for cocaine. This was confirmed by subsequent chemical testing at the police lab. On July 23, 1993, Williams filed charges against appellant, and, on August 4, 1993, appellant was taken into police custody.

During the drug transaction, appellant used the name Andre Gray. Trooper Williams, however, had seen appellant before and had spoken to him at least ten times prior to the transaction and three times thereafter. Although the initial police report identified the suspect as Andre Gray, Trooper Williams learned appellant’s true name to be Reese Lanier Hodge prior to filing charges against him on July 23, 1993. Williams also made a positive identification of appellant at trial, testifying that appellant’s “eyes are very distinguishing, bulging or froggy type and there is no doubt in my mind who he is when I see him today or one hundred years from now.”

In his defense, appellant called as a witness the deputy clerk of courts, who testified that there was a criminal file in Fayette County on an individual named Andre Gray which contained several outstanding drug charges, as well as an active bench warrant for the arrest of Andre Gray. Appellant testified in his own behalf, stating that he had been arrested by Trooper Williams on July 23,1993, while he was on his way home from his mother’s house. According to appellant, Williams slammed him against a car and said “we have you Andre Gray.” Appellant denied that he had ever told Trooper Williams that his name was Andre Gray. He further testified that the warrant for his arrest contained the name Andre Gray which had been crossed out and replaced with his name. Appellant also said that he is familiar with Andre Gray, who, according to appellant, was about the same height and weight as he is. The bench warrant, however, described Gray as a “[b]lack male, approximately age twenty-five to thirty-five, height five foot four inches and weight is one hundred twenty pounds,” while appellant described himself as being five feet eleven inches tall and weighing two hundred and twenty pounds. Finally, appellant presented character testimony as to his reputation for being a law abiding person.

On appeal, appellant contends that the testimony of Trooper Williams was insufficient to establish his identity as the person who sold crack cocaine on July 16, 1993. This is so, appellant asserts, because Williams’ testimony was contradicted by evidence which identified the true perpetrator as Andre Gray. According to appellant, the fact that the initial police report, the evidence envelope containing the crack cocaine and the police laboratory report all identified the suspect as Andre Gray, together with evidence of the actual existence of a person named Andre Gray who had been charged with other drug offenses, rendered the Commonwealth’s evidence insufficient to sustain his convictions. While the Commonwealth presented an impressive case against Andre Gray, appellant argues, it failed to establish that he, Reese Hodge, had committed any offense.

With respect to challenges to the sufficiency of the evidence to sustain a criminal conviction, our standard of review is as follows:

In reviewing a challenge to the sufficiency of the evidence, we must determine “whether, viewing all the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offense[ ] charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.” Commonwealth v. Jackson, 506 Pa. 469, 472-473, 485 A.2d 1102, 1103 (1984). “This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt.” Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988), cert. denied, 493 U.S. 1093, 110 S.Ct. 1169, 107 L.Ed.2d 1072 (1990). “Moreover, it is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. The factfinder is free to believe all, part or none of the evidence.” Commonwealth v. Tate, 485 Pa. 180, 182, 401 A.2d 353, 354 (1979). The facts and circumstances established by the Commonwealth “need not be absolutely incompatible with [the] defendant’s innocence, but the question of any doubt is for the jury unless the evidence ‘be so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances.’ ” Commonwealth v. Sullivan, 472 Pa. 129, 150, 371 A.2d 468, 478 (1977), quoting Commonwealth v. Libonati, 346 Pa. 504, 508, 31 A.2d 95, 97 (1943).

Commonwealth v. Sanders, 426 Pa.Super. 362, 367, 627 A.2d 183, 185 (1993).

When the evidence in the instant case is viewed in a light most favorable to the Commonwealth, it is clearly sufficient to establish appellant’s guilt beyond a reasonable doubt. Appellant was positively identified by Trooper Williams as the person who sold crack cocaine to Williams on July 16, 1993. The fact that initial police reports listed the suspect as Andre Gray was due to appellant’s use of an alias, and not because of any misidentification by Williams. Indeed, the Andre Gray whom appellant contends to have been the actual perpetrator was described in the outstanding bench warrant as being seven inches shorter and one hundred pounds lighter than appellant. In any event, it was for the jury to resolve conflicts or inconsistencies in the testimony of the witnesses. The positive identification of appellant made by Trooper Williams was, if believed by the jury, sufficient to prove that it was appellant who had sold the crack cocaine on July 16, 1993. Upon review of the entire record, we are satisfied that the jury’s verdicts were supported by sufficient evidence.

Appellant has also raised the alternative argument that the jury’s verdicts were contrary to the weight of the evidence. Our review of challenges pertaining to the weight of the evidence is governed by the following principles:

“A motion for new trial on grounds that the verdict is contrary to the weight of the evidence concedes that there is sufficient evidence to sustain the verdict but contends, nevertheless, that the verdict is against the weight of the evidence.” Commonwealth v. Taylor, supra, 324 Pa.Super. [420] at 425, 471 A.2d [1228] at 1230 [(1984)]. The decision whether to grant a new trial on this basis rests within the discretion of the trial court. Commonwealth v. Hunter, 381 Pa.Super. 606, 617, 554 A.2d 550, 555 (1989). “A trial court should award a new trial on the ground that the verdict is against the weight of the evidence only when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice and [make] the award of a new trial [ ] imperative so that right may be given another opportunity to prevail.” Commonwealth v. Whitney, 511 Pa. 232, 239, 512 A.2d 1152, 1155-1156 (1986). “The role of an appellate court in reviewing the weight of the evidence is very limited.” Commonwealth v. Sanders, 426 Pa.Super. 362, 367, 627 A.2d 183, 185 (1993). “The purpose of that review is to determine whether the trial court abused its discretion and not to substitute [the reviewing] Court’s judgment for that of the trial court.” Commonwealth v. Murray, 408 Pa.Super. 435, 440, 597 A.2d 111, 114 (1991) (en banc). Accordingly, “[w]here the evidence is conflicting, the credibility of the witnesses is solely for the jury, and if its finding is supported by the record, the trial court’s denial of a motion for new trial will not be disturbed.” Commonwealth v. Larew, 289 Pa.Super. 34, 37, 432 A.2d 1037, 1038 (1981).

Commonwealth v. Manchas, 430 Pa.Super. 63, 71-72, 633 A.2d 618, 622-623 (1993).

Appellant has raised the issue of the weight of the evidence for the first time on appeal. He elected under Pa.R.Crim.P. 1410 not to file optional post-sentence motions, but, instead, filed an immediate notice of appeal after sentence had been imposed. Therefore, the trial court was never given an opportunity to exercise its discretion in determining whether appellant should be awarded a new trial on grounds that the verdict was contrary to the weight of the evidence. Appellant suggests, however, that, because he exercised his right to file an immediate appeal, this Court should now take the place of the trial court and review in the first instance whether the jury’s verdicts were contrary to the weight of the evidence. Absent such a review, he contends, a defendant who elects under Rule 1410 to take an immediate appeal will effectively be precluded from challenging the weight of the evidence.

In Commonwealth v. Brown, 538 Pa. 410, 434-438, 648 A.2d 1177, 1189-1191 (1994), the Pennsylvania Supreme Court made clear that challenges to the weight of the evidence must first be presented to the trial court. An appellate court may only review the trial court’s exercise of discretion in granting or denying a new trial on grounds that the verdict was contrary to the weight of the evidence; it may not address “the underlying question whether the verdict is against the weight of the evidence.” Id. at 435, 648 A.2d at 1189. In so holding, the Supreme Court observed that:

‘An allegation that the verdict is against the “weight” of the evidence is a matter to be resolved by the trial court:
While there may be some legitimacy for a trial court, who [sic] has also observed the witnesses as they testified, to consider the weight of the evidence and to that extent review the jury’s determination of credibility, there is surely no justification for an appellate court, relying upon a cold record, to exercise such a function.
Commonwealth v. Farquharson, 467 Pa. 50, 59-60, 354 A.2d 545, 550 (1976).’

Id. at 437, 648 A.2d at 1190, quoting Commonwealth v. Karkaria, 533 Pa. 412, 418-419 n. 3, 625 A.2d 1167, 1170 n. 3 (1993). The Brown court further declared that:

‘Unlike the challenge of legal sufficiency of the evidence, the complaint that the verdict was against the weight of the evidence requires an assessment of the credibility of the testimony offered by the Commonwealth. It is a rule of this Commonwealth that an appellate tribunal should not entertain a challenge to the weight of the evidence since their examination is confined to the “cold record.” ’

Commonwealth v. Brown, supra at 438, 648 A.2d at 1191, quoting Commonwealth v. Nelson, 514 Pa. 262, 271 n. 3, 523 A.2d 728, 733 n. 3 (1987), cert. denied, 484 U.S. 928, 108 S.Ct. 293, 98 L.Ed.2d 253 (1987) (citations omitted).

It seems clear, therefore, that this Court cannot entertain, in the first instance, a request for a new trial on grounds that the verdict was contrary to the weight of the evidence. This is not an issue of waiver. Even though, as a general rule, a defendant need not file a post-sentence motion in order to preserve issues for appellate review, a weight of the evidence argument may be addressed only by a trial court. Therefore, a defendant, who wishes to seek a new trial on grounds that the verdict was contrary to the weight of the evidence, must necessarily raise this issue via post-sentence motion in the trial court. If the trial court denies the motion, the defendant may then file an appeal in which the trial court’s exercise of discretion will be subject to review. Because appellant did not challenge the weight of the evidence in the trial court in this case, we will not address the issue on appeal.

Moreover, even if we were able to review the weight of the evidence, we could find no basis for disturbing the verdicts of the jury in this case. Appellant’s convictions were supported by the eyewitness identification of an experienced undercover police officer to whom appellant had sold crack cocaine. There is nothing in the verdicts based on such evidence which can be deemed so shocking to one’s sense of justice as to require the award of a new trial.

Having found no basis for disturbing the verdicts of guilty returned by the jury, the judgment of sentence imposed thereon is, as it must be,

Affirmed.

      . Rule 1410B(1)(c) provides that ”[i]ssues raised before or during trial shall be deemed preserved for appeal whether or not the defendant elects to file a post-sentence motion on those issues.” Pa.R.Crim.P. 1410B(1)(c). A challenge to the weight of the evidence, however, cannot be raised until after a verdict has been returned.


author: CAVANAUGH, Judge:

text:
      658 A.2d 390

    COMMONWEALTH of Pennsylvania, Appellee, v. Thomas James ANDRZEJEWSKI, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 8, 1995.
    Filed May 10, 1995.

      Joseph P. Burt, Erie, for appellant.
    Bradley H. Foulk, Asst. Dist. Atty., Erie, for Com. appellee.
    Before CAVANAUGH, JOHNSON and SAYLOR, JJ.
   CAVANAUGH, Judge:

Thomas James Andrzejewski appeals from judgment of sentence of concurrent 3 to 12 months incarceration followed by probation period on multiple counts of attempt to receive stolen property. His challenge is to the weight and sufficiency of the evidence as to the grading of his offense as a felony of the third degree which is thus defined:

18 Pa.C.S.A. § 3903(a.l)
Felony of the third degree. — Except as provided in subsection (a), theft constitutes a felony of the third degree if the amount involved exceeds $2,000, or if the property stolen is a firearm, automobile, airplane, motorcycle, motorboat or other motor-propelled vehicle, or in thé case of theft by receiving stolen property, if the receiver is in the business of buying or selling stolen property.

Appellant’s quarrel with his non-jury trial conviction is that there was a deficiency in the evidence as to the “in the business of buying or selling stolen goods” component of the F-3 grading of his conviction.

Our review of the evidence is conducted under accustomed standards: Commonwealth v. Poindexter, 435 Pa.Super. 509, 646 A.2d 1211 (1994) (sufficiency); Commonwealth v. Pierce, 537 Pa. 514, 645 A.2d 189 (weight).

The arrest grew out of a “sting” operation carried out by, the vice unit of the Pennsylvania State Police in Erie. Trooper Ronald Morgan, acting in an undercover capacity, sought out persons who were trafficking in stolen property and in this role visited appellant’s premises. Andrzejewski conducted a business known as A & B TV. At the time, Morgan wore a body wire so that the conversations were consensually recorded. He had three transactions with appellant at this same location.

On the first visit, Morgan had with him a TV in his car and advised appellant that he wanted to get rid of it and told him that it was “heating up” the trunk of his car. After Morgan offered to sell the TV (which he said had been obtained from K-Mart that morning) for $100, a deal was reached to sell it to appellant for $80. Appellant confirmed that he knew the TV was “hot”. The $80 was retained and placed in evidence.

Morgan met again with Andrzejewski about a month later and again sold a TV to him for $80. Appellant said he sold the TV for $130 at a discount, since he had to tell the buyer not to send the warranty in (the value of the TV was stated to be $199.99). At this meeting, appellant inquired about the availability of cigarettes.

On a third visit, Morgan bought 12 cartons of cigarettes and some bottles of alcoholic beverages. The cigarettes were sold for $9 a carton. Appellant took 10 cartons of cigarettes and two bottles of liquor. During this visit, Andrzejewski called various bars to inquire of their needs at the bar. The court heard the testimony and also listened to the tapes of the transactions between Morgan and Andrzejewski and in its adjudicatory remarks found:

The court notes that there was certainly some evidence that the defendant either intended to sell the items in question after he received them, attempted to sell the items in question and/or was going to place conditions upon the sale of the items in question consistent with knowledge that the items were in fact stolen. The defendant indicated an intent to sell the televisions for a certain price above what he paid for them and above what they were worth in terms of retail value, that being $130 as to his intent, which is clearly elicited on the tape.
There was also an attempt on the tape to dispose of certain disposable items, particularly the cigarettes by a various number of calls to certain people and places in an attempt to dispose of particular brands.
There was also evidence of conditions that were to be attached to the sale of the televisions in that the warranty was not to be sent in, obviously evidencing knowledge that the items were stolen, believed to be stolen.
The court further opined:
His first meeting with the trooper, who he did not know, occurred at his home and it was for all intents and purposes with a stranger, wherein he bought a television for a ridiculously low price, which was obviously brand new, in which the trooper had obviously indicated clearly was stolen, and recently stolen. The incidents of that first meeting also gives credence to the fact the defendant was in the business of buying stolen property because at the conclusion of that meeting, the trooper asked him can I call you if I got anything else and the defendant’s response was clearly give mé a call any time.
The second meeting substantiates that conclusion that he was available to receive stolen goods on a regular basis and at the trooper’s request. The second meeting involved and I quote “the same deal.” According to the defendant, it involved a TV set once again and it further evolved to the point where the defendant indicated an interest in cigarettes, alcohol and a VCR. In fact, the defendant wanted the VCR for his own use, according to defense counsel, but it is obvious he also wanted a stolen VCR for his own use and one that he knew he could obtain at a price commensurate therewith. Testimony of further incidents of the defendant’s intent and knowledge is evidence in the third conversation where the defendant indicates that he sells the cigarettes, alcohol and other items to friends. That the trooper again call him any time, that he will get a loan from his MAC machine for buying the obviously stolen goods that the trooper is dealing in. There are numerous attempts on that occasion to make phone calls to dispose of the stolen items in question while the trooper is still present.

The trial court concluded that Andrzejewski “was engaged at least in the buying of stolen property as a business” and that appellant was guilty of criminal attempt as to all three counts.

The appellant relies upon U.S. v. St. Cyr, 977 F.2d 698 (1st Circuit 1992) as a precedent for a restrictive reading of the “in the business of’ requirement for enhanced grading of the offense. We find this non-binding precedent inappropriate to the Pennsylvania statute under scrutiny. The court of appeals decision was interpreting federal sentencing law (U.S.S.G. § 2B1.2(b)(4)(A)) and chose to define the business provision in a restrictive manner which would require regularity of dealings and a level of sophistication consistent with an organized fencing enterprise. There is no reason why we should interpret the Pennsylvania grading statute with such a heightened standard to constitute being in the business of buying or selling stolen property. We agree with the trial court that the three transactions in this case, which showed appellant’s familiar inclination to purchase illegally obtained merchandise for purposes of resale at a profit, together with his predisposition and even eagerness to obtain more such goods, are sufficient evidence to support a finding that Andrzejewski engaged in “the business” of buying and selling stolen property. We can perceive of no basis for a requirement that the illicit practice must be shown to be tantamount to a full-time undertaking.

Having agreed with the evidentiary sufficiency of the evidence and its rationality, we further conclude that the verdict is not against the weight of the evidence.

Judgment of sentence affirmed.

      . All these goods were either actually purchased by the police or obtained from confiscated material in the possession of Pennsylvania governmental agencies.

      . Neither the tapes nor transcriptions thereof have been furnished to us on appeal by way of original or reproduced record. Since we should have access to and review all of the evidence before the trial court, it is important that this material be furnished to us with the record on appeal in all such cases. In this case, however, since the Morgan testimony at trial disclosed in detail his recollection of the 3 transactions with appellant and since the court’s adjudication relates to evidence clearly discernable from the testimonial transcripts before us, it is unnecessary to remand for completion of the record.


text:
    658 A.2d 392
    COMMONWEALTH of Pennsylvania v. William HARRIS, Appellant.
    Superior Court of Pennsylvania.
    Argued March 20, 1995.
    Filed April 19, 1995.

      Mark D. Mungello, Blackwood, NJ, for appellant.
    Helen Kane, Asst. Dist. Atty, Philadelphia, for Com., appellee.
    Before ROWLEY, P.J., and CAVANAUGH and McEWEN, JJ.
   CAVANAUGH, Judge:

William Harris appeals from sentence of life imprisonment consequent upon his conviction by a jury of first degree murder and refusal to grant post-verdict relief.

The victim, who died of numerous stab wounds, was Claritha Granberry who lived with her common law husband at 6225 Carpenter Street in Philadelphia. She was found dead at her residence by her husband, James Gill, and a neighbor after Gill returned home from his work as a bartender at 2:00 A.M. on July 1, 1987. Gill testified that when he returned home from work, he found the front door of the residence “open”. Appellant Harris was, at the time, living with the decedent’s sister, Deborah Cole and he became implicated as a possible perpetrator as the result of a report of a phone conversation by Janice Cuff of Sicklerville, New Jersey. Cuffs testimony was crucial to the Commonwealth’s case and provides the basis for appellant’s first argument on appeal. She stated that she had known the victim for some 40 years since their childhood. Cuffs testimony was that Claritha called her on the telephone on June 30 at about 10:00 P.M. and they were discussing a forthcoming visit of Claritha to New Jersey. The testimony in part:

A. While we were talking, she said the bell was ringing and she also said I wonder who is that ringing my bell so late. That’s what I recall. It was around 12:30. So I said I wonder who it is. She said I don’t know. I said call me back. She said no, hold on, because I want to find out the directions, so don’t hang up. I’ll be right back. So she left and to the door, and it was a minute or so and being there just in May, I could picture just about where he was coming from.
# # # % sfc
BY MR. WILLIAMS:
Q. You said she was gone about a minute or so?
A. Yes. And she returned and she whispered. She said it’s my so-called brother-in-law, and I said who, I said Deborah’s boyfriend?
‡ ‡ ‡ ‡ ‡ ‡
It’s my so-called brother-in-law, is that what you are saying?
THE WITNESS: Yes.
' * * * * * *
BY MR. WILLIAMS:
Q. Go ahead, ma’am. And you said what?
A. Deborah’s boyfriend? She said geek and I said what does he want, and she said I don’t know what the nigger wants, so I said what should we do—
A. Let me stop you right there, ma’am. What tone of voice was she speaking in before she told you that it was someone at the door?
A Just regular.
Q. Okay. When she came back after being gone for a minute and a half, what tone of voice was she speaking in then?
A. She was whispering.
Q. Were you able to tell whether or not there was anyone else in the room with her or nearby?
A. Not in the house before we were talking. Before the bell rang.
Q. After she came back and was whispering to you on the telephone is where I am now.
Were you able to make a determination as to whether or not anybody was in the room?
* * * * * *
THE WITNESS: She said I don’t know what the nigger wants. Excuse my expression.
THE COURT: I don’t want what he wants. Okay.
BY MR. WILLIAMS:
Q. She was whispering then. I am going to take you back, ma’am, which I didn’t hear clearly, back to when she first came back to the telephone and told you that it was her so-called brother-in-law. Do you recall that?
A. Yes.
Q. And you said what to her?
* :{: * * * *
BY MR. WILLIAMS:
Q. We go back to when she came back to the telephone call after being gone for a minute and a half and she says to you it’s my so-called brother-in-law.
A. Yes.
Q. I don’t know what he wants?
A. But I said to her, Deborah’s boyfriend.
Q. You said Gig or?
A. She said Gig and the nickname and all, that’s why I asked her was it Deborah’s boyfriend, and she said yes.
THE COURT: Who used the word Gig, you or the other lady?
THE WITNESS: C used Gig, because I didn’t.
BY MR. WILLIAMS:
Q. Had you ever heard the name Gig before, before she gave it to you on the phone?
A No.
Q. Approximately how long was she on the phone when she came back and she was whispering in the phone? How long did that go before you eventually ended?
A. I guess about three minutes or so.
Q. And she continued to whisper after that?
A. Right.
Q. Okay. Now, what if anything did she say to you and you said to her directly before the phone is hung up?
A. I asked her what was she going to do and she said I want to find out the directions so I’ll call you back. Then she said I’ll call you back.
Q. And the phone call ended?
A. Yes.
Q. You think that was approximately 10:30 or thereabouts?
A. Yes.
Q. And did she ever call you back that night?
A. No.
Q. Did you ever call her back?
A. No.
[objections omitted]

Appellant has been identified in the record as “Gig”. This testimony, which would place appellant in the decedent’s residence at or about 10:00 P.M. on the night of the murder, was admitted as an exception to the hearsay rule on variously stated bases that it was “state of mind”, “res gestae” and/or “a spontaneous declaration”. While we disagree with the trial court’s choice of nomenclature for the admissibility of the testimony of witness Cuff, we agree that it was properly admitted. The victim’s identification of appellant as her visitor is clearly, if not classically, an example of a present sense impression exception to the hearsay rule. It is clear that Claritha was stating a contemporaneous verbalization of her observation (that Gig was the man at the door). Our supreme court has recognized this exception to the hearsay rule in closely similar circumstances involving a telephone conversation. Commonwealth v. Peterkin, 511 Pa. 299, 513 A.2d 373 (1986). Pennsylvania lawyer, David F. Binder, treats with this very situation in his handbook on hearsay:

A person may describe or explain something that he is observing to someone else over the telephone. In such event what the listener on the telephone hears are present sense impressions.
See Brown v. Tard (D NJ 1982) 552 FSupp 1341, 1350-1351, in which a maintenance worker in an apartment building was convicted of murdering a tenant’s live-in girl Mend. The tenant (Hickson) testified that on the morning of the day of the murder the victim (Shelly Weinstein) called him on the telephone and told him that she was not going to go to work and that “the guy is here to fix the air conditioner.” The court, denying defendant’s petition for habeas corpus, explained (page 1351):
Shelly Weinstein’s statement that a man was there to fix the air conditioner meets the requirements that the declarant personally perceive the event, that the statement explain or describe the event, and that there be contemporaneity of the statement and the event described. Hickson’s testimony thus falls within the present sense impression exception to the hearsay rule.

Binder, Hearsay Handbook, Second Edition, Exception 1 Present Sense Impression p. 90 (citing also Commonwealth v. Pronkoskie, 477 Pa. 132, 383 A.2d 858, 860 (1978)).

It bears comment that in Commonwealth v. Blackwell, 343 Pa.Super. 201, 494 A.2d 426 (1985) an opinion by Spaeth, P.J., the present sense impression exception is described as requiring that the declarant see the event and make an observation to another person also present at the scene. The stated requirement that the recipient of the statement be also at the scene does not appear to represent the commonly accepted understanding of this important exception to the hearsay rule and since it preceded Peterkin (a supreme court case) we do not deem the requirement to be presently controlling.

We conclude that there was no error in the admission of the testimony of witness Cuff concerning the identification of the persons who came to decedent’s door during the telephone conversation. Appellant makes numerous other arguments which we discuss in a supplemental memorandum filed contemporaneously with this opinion — Pa.Super.-, — A.2d -. Since we find no merit to any of appellant’s arguments, we affirm the judgment of sentence.

Judgment of sentence affirmed.

      . We may affirm the decision of the trial court if the result is correct on the basis of another exception to the hearsay rule. Commonwealth v. Shaw, 494 Pa. 364, 431 A.2d 897 (1981); Commonwealth v. Peterkin, 511 Pa. 299, 513 A.2d 373 (1986).