text:
    545 A.2d 354
    Donna C. ERVIN and Donna C. Ervin, Executrix of the Estate of Thomas J. Ervin, Deceased, Appellant, v. AMERICAN GUARDIAN LIFE ASSURANCE COMPANY and Norman S. Knee, D.O., Appellees.
    Superior Court of Pennsylvania.
    Argued April 26, 1988.
    Filed July 29, 1988.
    Timothy J. Savage, Philadelphia, for appellant.

      Edward C. Mintzer, Jr., Philadelphia, for Knee, appellee.
    Before CAVANAUGH, WIEAND and DEL SOLE, JJ.
   WIEAND, Judge:

In this appeal from an order sustaining preliminary objections in the nature of a demurrer and entering judgment for the defendant physician, the sole issue is whether the physician who, at the request of the insurance company which employed him, examined the electrocardiogram (EKG) of an applicant for insurance, owed a duty to the applicant to discover and disclose heart abnormalities recorded by the electrocardiogram. For reasons hereinafter stated, we agree with the trial court that in the absence of a physician-patient relationship or other basis for imposing upon the physician a duty to the applicant, there can be no recovery by the applicant for the physician’s failure to discover or disclose such an abnormality to the applicant. Therefore, we affirm.

In reviewing the trial court’s order sustaining preliminary objections in the nature of a demurrer, we accept as true all material facts alleged in the complaint, as well as inferences reasonably deducible therefrom. Gentile v. West American Insurance Exchange, 367 Pa.Super. 99, 104-105, 532 A.2d 472, 475 (1987). See also: Kyle v. McNamara & Criste, 506 Pa. 631, 487 A.2d 814 (1985); Halliday v. Beltz, 356 Pa.Super. 375, 514 A.2d 906 (1986). Moreover, Alumni Ass’n. v. Sullivan, 369 Pa.Super. 596, 600-601, 535 A.2d 1095, 1098 (1987).

[i]n determining whether the factual averments of a complaint are sufficient to state a cause of action, all doubts must be resolved in favor of the sufficiency of the complaint. Slaybaugh v. Newman, 330 Pa.Super. 216, 479 A.2d 517, 519 (1984). A demurrer will be sustained only where the complaint demonstrates with certainty that under the facts averred within, the law will not permit a recovery. Id.; see also Cianfrani v. Commonwealth, State Employees’ Retirement Board, 505 Pa. 294, 479 A.2d 468, 469 (1984). If any theory of law will support the claim raised by the complaint, dismissal is improper. Slaybaugh, supra; Cianfrani, supra.

The complaint in the instant case was filed by Donna C. Ervin in her own right and on behalf of the estate of her deceased husband, Thomas J. Ervin. She alleged that Thomas Ervin had applied to American Guardian Life Assurance Company (American) for term life insurance and that in connection therewith he had submitted to a physical examination at the request of American. As a part of the physical examination, which had been conducted by physicians employed by American on February 6, 1985, an EKG was taken. This EKG was subsequently examined for American by the defendant, Dr. Norman S. Knee, who was American’s medical director. On March 1, 1985, less than a month later, Thomas Ervin died of a heart attack. The complaint alleges that the EKG disclosed that Ervin had suffered a prior myocardial infarction and that other cardiac abnormalities existed which Dr. Knee had negligently failed to discover, or, in the alternative, had failed to report to Ervin. If they had been disclosed, according to the complaint, Ervin’s death could have been avoided.

In sustaining Dr. Knee’s preliminary objections in the nature of a demurrer, the trial court reasoned as follows:

The Court finds as a matter of law that under the pleaded facts, Plaintiffs have failed to state an actionable claim. Plaintiffs assert that Dr. Knee owed the decedent a duty but fail[ed] to establish the existence of a physician-patient relationship or any other basis for imposing upon Dr. Knee such duty.
The Complaint indicates that Dr. Knee undertook to read Mr. Ervin’s EKG pursuant to a contractual obligation to American as an employee; this obligation did not extend to Mr. Ervin.
The Complaint fails to set forth, however, that Dr. Knee ever saw Mr. Ervin as a patient, treated or rendered care to Mr. Ervin or otherwise undertook to act as decedent’s physician, and no inferences can anywhere be drawn from the Complaint that a physician-patient relationship ever existed between Defendant Dr. Knee and the deceased.

The trial court also relied upon this Court’s decision in Craddock v. Gross, 350 Pa.Super. 575, 504 A.2d 1300 (1986), where we held that a physician who had examined a workmen’s compensation claimant on behalf of a compensation insurance carrier did not owe to the claimant a duty which would support a medical malpractice action. Other jurisdictions have reached the same conclusion. See, e.g.: Cook v. Optimum/Ideal Managers, Inc., 130 Ill.App.3d 180, 84 Ill.Dec. 933, 473 N.E.2d 334 (1984); Keene v. Wiggins, 69 Cal.App.3d 308, 138 Cal.Rptr. 3 (1977); Johnston v. Sibley, 558 S.W.2d 135 (Tex.Civ.App.1977); Rogers v. Horvath, 65 Mich.App. 644, 237 N.W.2d 595 (1975); LoDico v. Caputi, 129 A.D.2d 361, 517 N.Y.S.2d 640 (1987). The Michigan court in Rogers v. Horvath, supra, explained the reason for the rule as follows:

The principal question raised by this appeal is whether a professional physician-patient relationship is a legal prerequisite to basing a cause of action in professional malpractice against a physician.
The term “malpractice” denotes a breach of the duty owed by one in rendering, professional services to a person who has contracted for such services; in physician-malpractice cases, the duty owed by the physician arises from the physician-patient relationship. No such relationship existed in the case at bar. Defendant was employed by General Motors to examine one of its employees in preparation for a workmen’s compensation hearing. Plaintiff did not employ the defendant, nor did she seek or receive medical advice or treatment. Under such circumstances, the defendant did not owe plaintiff any duty arising from a physician-patient relationship. This is not to say that a physician who examines a person for reasons other than diagnosis or treatment and for the benefit of some one other than the examinee owes no duty of due care to that person. Rather, we hold that the physician in such a case does not owe such a duty of care as will subject him to liability for malpractice.

Id. 65 Mich.App. at 646-647, 237 N.W.2d at 596-597 (footnotes omitted).

It has also been held that a doctor examining a job applicant on behalf of a prospective employer owes no duty to the applicant to diagnose disease. Lotspeich v. Chance Vought Aircraft, 369 S.W.2d 705 (Tex.Civ.App.1963). The plaintiff in Lotspeich alleged that the doctor had been negligent in failing to discover from X-rays taken as a part of a pre-employment physical that she had tuberculosis. In holding that the doctor owed no duty to the job applicant, the Lotspeich court stated that the job applicant had no legal right to demand that the doctor exercise any care whatsoever in conducting the examination “except to avoid injuring her.” Lotspeich v. Chance Vought Aircraft, supra at 710. See also: Wilcox v. Salt Lake City Corp., 26 Utah 2d 78, 484 P.2d 1200 (1971); Riste v. General Electric Co., 47 Wash.2d 680, 289 P.2d 338 (1955); New York Central R.Co. v. Wiler, 124 Ohio St. 118, 177 N.E. 205 (1931). Cf. Thomas v. Kenton, 425 So.2d 396 (La.App.1982) (employee did not state a claim for relief where complaint alleged that plant physician failed to inform him of progressive deterioration of employee’s lung condition since no physician-patient relationship existed between plant physician and employee).

Thus, “[t]he general rule is that a physician who is retained by a third party to conduct an examination of another person and report the results to the third party does not enter into a physician-patient relationship with the examinee and is not liable to the examinee for any losses he suffers as a result of the conclusions the physician reaches or reports.” Proof of Facts: Existence of Physician and Patient Relationship, 46 P.O.F.2d 373, 384. See also: 61 Am.Jur.2d Physicians, Surgeons, and Other Healers §§ 296-298. This general rule was explained by the California Court in Keene v. Wiggins, supra, as follows:

It is well established by authorities in other states the physician is liable for malpractice or negligence only where there is a relationship of physician-patient as a result of a contract, express or implied, that the doctor will treat the patient with proper professional skill and there is a breach of professional duty to the patient (Hoover v. Williamson, 236 Md. 250, 203 A.2d 861, 10 A.L. R.3d 1064). Whether any such duty may result when the physician examines the person not as a part or for the purpose of medical treatment is discussed in 10 A.L.R.3d 1071. The authorities reported there uniformly hold that where no physician-patient relationship exists the doctor’s only duty is to conduct the examination in a manner not to cause harm to the person being examined. The physician acts as an agent of the person requesting the examination (see Layton v. New York Life Ins. Co., 55 Cal. App. 202, 202 P. 958) and absent special circumstances, his duty to observe good standards of professional skill in reporting the results of the examination runs only to the person employing him.

Id. 69 Cal.App.3d at 313, 138 Cal.Rptr. at 6-7 (footnotes omitted). See: Annotation: Physician’s Duties and Liabilities to Persons Examined Pursuant to Physician’s Contract With Such Person’s Prospective or Actual Employer or Insurer, 10 A.L.R.3d 1071 (1966); Hoover v. Williamson, 236 Md. 250, 203 A.2d 861 (1964). See also: Annotation: What Constitutes Physician-Patient Relationship for Malpractice Purposes, 17 A.L.R.4th 132 (1982); Ahnert v. Wild-man, 176 Ind.App. 630, 376 N.E.2d 1182 (1978).

In Hoover v. Williamson, supra, the plaintiff had been examined by a physician on behalf of the plaintiff’s employer. The doctor undertook to advise the plaintiff and misrepresented to him the seriousness of his condition. The Maryland Court of Appeals found that the doctor’s affirmative acts in advising the plaintiff had created a duty on the part of the physician to exercise due care in advising plaintiff because, under the peculiar facts of that case, the existence of a physician-patient relationship had been created. However, the court carefully limited its holding by stating that normally a doctor incurs no liability absent a physician-patient relationship. Specifically, the court said:

The appellee is right in his contention that ordinarily recovery for malpractice or negligence against a doctor is allowed only where there is a relationship of doctor and patient as a result of a contract, express or implied, that the doctor will treat the patient with proper professional skill and the patient will pay for such treatment, and there has been a breach of professional duty to the patient. Thus, it has been held that there is not a doctor-patient relationship between: (a) a prospective or actual insured and the physician who examines him for the insurance company; or (b) a prospective or actual employee and the doctor who examines him for the employer.
It may be assumed that if Dr. Williamson had done no more than direct or supervise the X-ray examination of Hoover, his only duty would have been to General Electric. The allegations of the amended count against Dr. Williamson, however, go further. Dr. Williamson urges that these further allegations are not statements of fact but, rather, are no more than the conclusions of the pleader, Hoover. We think, however, that in the context of the whole of the amended count under consideration, the allegations were of facts that Dr. Williamson undertook to advise Hoover of his condition of health, referred him to a consultant (expert in the field) and, after this consultation, both affirmatively undertook to advise Hoover again and, contrary to his professional obligations, both wrongfully represented the seriousness of his condition (it may be inferred by permitting him to continue to work in the same injurious environment at General Electric) and concealed from him the recommendations to the contrary of the consultant, all to the injury of, and damage to, Hoover.
The allegations amount to more than that the doctor kept silent after review of the X-ray revelations and the findings of the consultant. The charge of affirmative misrepresentation was coupled with the charge of concealment of the consultant’s recommendations and, under the circumstances, made the concealment as much a breach of duty as the affirmative misrepresentation. Harper and James, op. cit., Sec. 18.6; Pashley v. Pacific Electric R.Co., 25 Cal.2d 226, 153 P.2d 325, 329.

Hoover v. Williamson, supra 236 Md. at 253, 255, 203 A.2d at 863-864 (footnote omitted). Cf. Bouligny v. Metropolitan Life Insurance Co., 133 S.W.2d 1094 (Mo.App.1939) (no professional relationship exists between applicant for life insurance and medical examiner for insurance company, thus, medical examiner’s report to insurance company is not privileged communication); Metropolitan Life Insurance Co. v. Evans, 183 Miss. 859, 184 So. 426 (1938) (same). But see: Betesh v. United States, 400 F.Supp. 238 (D.D.C.1974); Beadling v. Sirotta, 41 N.J. 555, 197 A.2d 857 (1964); Ferguson v. Wolkin, 131 Misc.2d 304, 499 N.Y.S.2d 356 (1986).

Our review of the foregoing authorities leads us to the conclusion that the defendant physician in the instant case owed no duty to the plaintiff’s decedent either to discover his heart problem or, having discovered it, to inform the decedent thereof. The defendant had been employed by American to advise the company whether the applicant was an insurable risk. He was not employed to make a diagnosis for the applicant or to treat the applicant for any condition which was discovered. Neither was there any evidence that the defendant, by giving the applicant advice or otherwise, had assumed a physician-patient relationship. In the absence of a physician-patient relationship between defendant and the applicant, the defendant physician did not owe a duty to the applicant to discover and disclose that the applicant was suffering from heart abnormalities.

Appellant’s reliance on Section 324A of the Restatement (Second) of Torts to create a duty on the defendant’s part is misplaced. Section 324A provides:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

There are no averments in the instant complaint that the defendant physician acted for the benefit of anyone other than the insurance company which had employed him. The defendant’s purpose in reading the insurance applicant’s EKG had not been to treat or otherwise benefit the applicant but only to advise the insurance company whether it was being asked to insure one who was a poor risk. If the defendant physician breached any duty it was a duty owed to his employer, American Guardian Life Assurance Company. He owed no similar duty to the applicant.

The order of the trial court sustaining the defendant’s preliminary objections in the nature of a demurrer and entering judgment for the defendant physician is affirmed.

      . American paid the full amount of the policy ($200,000.00) for which Ervin had applied.


source: Caselaw Access Project

author: CERCONE, Judge:

license: Public Domain

text:
    545 A.2d 359
    COMMONWEALTH of Pennsylvania v. Guy BOYD, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted May 16, 1988.
    Filed July 29, 1988.

      Patricia A. Wenger, Harrisburg, for appellant.
    Yvonne A. Okonieski, Deputy District Attorney, Harrisburg, for Com., appellee.
    Before OLSZEWSKI, WATKINS and CERCONE, JJ.
   CERCONE, Judge:

This case involves an appeal from a dismissal, without a hearing, of appellant’s petition for review under the Post Conviction Hearing Act (PCHA), 42 Pa.C.S.A. § 9541 et seq. The lower court dismissed the petition on the basis that the claims of ineffectiveness of counsel alleged by appellant in his PCHA petition lacked arguable merit.

In June, 1984, appellant was found guilty following a jury trial of the charges of unlawful delivery of a controlled substance and criminal conspiracy. Appellant filed post-trial motions on both charges which were dismissed by the trial court on November 8, 1984. Appellant was then sentenced to two concurrent terms of imprisonment of three (3) to six (6) years.

Appellant filed a petition to modify sentence which was denied on February 19, 1985. Following a timely appeal to the Superior Court, the judgment of sentence was affirmed on March 14, 1986. Appellant’s petition for allowance of appeal was denied by the Pennsylvania Supreme Court.

Appellant then filed a pro se PCHA petition. A supplemental petition was later filed by court-appointed counsel. On December 28, 1987, appellant’s petition was denied without a hearing. Appellant filed a timely appeal in this court of the December 28, 1987 order.

Appellant’s argument on appeal is that the lower court erred in denying his PCHA petition without a hearing because counsel at both sentencing and on direct appeal of the judgment of sentence were ineffective for failing to object to the trial court’s use of an erroneous computation of the sentencing guidelines.

The standard for determining whether a hearing on a PCHA petition is required is statutorily prescribed:

§ 9549. Hearing on petition
(a) When required. — If a petition alleges facts that, if proven, would entitle the petitioner to relief, the court shall grant a hearing which may extend only to the issues raised in the petition or answer.
(b) When not required. — The court may deny a hearing if the petitioner’s claim is patently frivolous and is without a trace of support either in the record or from other evidence submitted by the petitioner. The court may also deny a hearing on a specific question of fact when a full and fair evidentiary hearing upon that question was held at the original trial or at any later proceeding.

42 Pa.C.S.A. § 9549(a)-(b). The controlling factor in determining whether a PCHA petition may be dismissed without hearing “is the status of the substantive assertions in the petition.” Commonwealth v. Weddington, 514 Pa. 46, 49, 522 A.2d 1050, 1052 (1987).

Appellant’s only substantive assertion relates to the ineffectiveness of both trial and appellate counsel in failing to raise the issue of the trial court’s use of an erroneous-computation of the sentencing guidelines.

Claims of ineffectiveness of counsel are reviewed under the following standard:

we determine first whether the underlying claim has merit. If it does, we then ask whether counsel’s handling of the matter had some reasonable basis designed to effectuate his client’s interests. Counsel is not ineffective unless there was no reasonable basis for the action, and counsel may not be faulted for failing to take baseless or meritless action. Finally, a finding of ineffectiveness requires a showing that the course of action pursued by counsel was prejudicial to the defendant.

Commonwealth v. Blagman, 350 Pa.Super. 367, 371, 504 A.2d 883, 885 (1986) (citations omitted); see also Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

There is little argument that appellant’s claim is of arguable merit. Even the lower court noted that appellant’s prior record score was inaccurately calculated on the sentencing form. No objection to this inaccurate computation was made by counsel at the sentencing hearing or on direct appeal. However, while agreeing that the claim had arguable merit, the lower court denied appellant’s PCHA petition on the basis that prejudice had not been established.

Appellant relies on Commonwealth v. Johnakin, 348 Pa.Super. 432, 502 A.2d 620 (1985) and Commonwealth v. McMullen, 365 Pa.Super. 556, 530 A.2d 450 (1987), in support of his position. In Joknakin, involving a direct appeal of the judgment of sentence, the trial court deviated from the guidelines in sentencing, and in doing so, anticipated that its application of the guidelines might be held erroneous on review. 348 Pa.Super. at 438, 502 A.2d at 623. Therefore, the sentencing court attempted to ameliorate any problem which might arise as a result of its deviation from the guidelines by stating on the record its reasons for doing so. On appeal, this court vacated the judgment of sentence, stating that

[w]e are not persuaded that this anticipatory statement by the court precludes the necessity of remand. While we may affirm a sentence that is outside the guidelines provided it is reasonable, 42 Pa.C.S.A. § 9781(c)(3), it is imperative that the sentencing court determine the correct starting point in the guidelines before sentencing outside them. Commonwealth v. Drumgoole, [341 Pa. Super. 468, 491 A.2d 1352 (1985)]. See also Commonwealth v. Royer, 328 Pa.Super. 60, 70, 476 A.2d 453, 456 (1983).

348 Pa.Super. at 438, 502 A.2d at 623 (footnote omitted).

In Commonwealth v. McMullen, supra, a case factually similar to the instant one, and involving a claim of ineffectiveness of counsel, trial counsel was found to be ineffective for failing to object to the trial court’s use of an erroneous computation under the sentencing guidelines. On appeal, this court held that appellant therein had been prejudiced because the court imposed a minimum sentence of thirty-six months, believing the standard range to be thirty-six to sixty months. 365 Pa.Super. at 562, 530 A.2d at 452-53. This court reasoned that

[i]f the court had known that the standard range was actually twenty-four to forty-eight months, a shorter sentence might well have been imposed (citation omitted). We have held that when a sentencing court was not cognizant of the correct guideline sentence ranges before imposing sentence, the sentence must be vacated and the appellant resentenced. Commonwealth v. Taylor, 362 Pa.Super. 408, 423, 524 A.2d 942, 950 (1987); Commonwealth v. Johnakin, 348 Pa.Super. 432, 438, 502 A.2d 620, 623 (1985); Commonwealth v. Drumgoole, 341 Pa.Super. 468, 474-75, 491 A.2d 1352, 1355 (1985).

365 Pa.Super. at 561, 530 A.2d at 453.

In the instant case, the lower court considered appellant’s argument that counsel was ineffective for failing to object to its use of an erroneous guideline computation. The court responded to appellant’s argument as follows:

Furthermore, contrary to defendant’s assertion, we did not rely on the sentencing guidelines. Although we considered the guidelines’ recommendation, we were cognizant that the suggested range was not accurate, since the defendant had just been sentenced that same day, on the intimidation charge (citation omitted). Even though the erroneous computation was not brought to our attention and the intimidation verdict was later reversed and remanded, we nonetheless were aware of the unreliability of the suggestions in the report and were persuaded by other factors, such as the defendant’s continuing course of conduct involving trafficking drugs and the seriousness of his antisocial and criminal conduct. Thus, even had he alleged prejudice, defendant was not in fact prejudiced by his counsel’s failure since the erroneous computation was not relied on.

Although this is a difficult case, we are persuaded that appellant suffered prejudice of the type present in McMullen. While the lower court indicated that it was cognizant of the unreliability of the computations in the sentencing report, it did not indicate which other guideline ranges were used as its starting point for the sentencing determination. As was indicated in McMullen, the sentencing court must be cognizant of the correct guideline sentence ranges before imposing sentence. From the discussion provided by the lower court, we cannot tell whether the court was, in fact, cognizant of this. It appears, rather, that the court disregarded what they found to be the incorrect guideline range, and then proceeded to consider other factors in imposing sentence. The failure to first determine the correct starting point under the guidelines would be prejudicial to appellant. Commonwealth v. McMullen, supra.

It may be that the lower court was unable to determine with certitude the correct guideline ranges because of insufficient information with regard to appellant’s prior offense. If that is the case, on remand, the court may find it necessary to hold an evidentiary hearing on this issue, for the allegations in the PCHA petition would, if proven, entitle appellant to relief. 42 Pa.C.S.A. § 9549(a).

For the reasons just stated, the judgment of sentence is vacated and the case is remanded for resentencing in accordance with this opinion. Jurisdiction is relinquished.

      . A separate trial was conducted on a charge of intimidation of a witness, and in September, 1984, a jury returned a verdict of guilty against appellant. The record on appeal does not indicate what further disposition was made of this matter. However, the lower court’s opinion, dismissing appellant’s PCHA petition, indicates that post-trial motions were filed on the intimidation of a witness charge, which were denied by the trial court. The lower court opinion further indicates that on appeal of the judgment on this charge, the Superior Court reversed and remanded for a new trial.

      . While the trial court did not take testimony on this issue, it is difficult to imagine that there could be a reasonable basis for counsel’s actions in failing to object to a sentencing guideline computation which, if inaccurate, would result in a higher range of minimum sentences.

      . The same judge presided over and ruled on both appellant’s sentencing hearing and his PCHA petition.

      . It would appear from our review of the record that the prior record score may have been erroneously determined for purposes of the sentencing guidelines form. Appellant’s brief is not explicit on this issue; however, since appellant cites Commonwealth v. McMullen, supra, on this point, it can be assumed that appellant is contending that the prior record score is erroneous because the offense gravity score of eight means that this case involves a second or subsequent offense. Thus, it would appear that appellant is arguing that it was error to utilize the previous conviction in calculating the prior offense score because that would have had the effect of including the prior conviction twice. See id., 365 Pa.Superior Ct. at 559, 530 A.2d at 452.


author: POPOVICH, Judge:

text:
    545 A.2d 362
    R. George MACKEY, Appellee, v. Marion M. MACKEY, Appellant.
    Superior Court of Pennsylvania.
    Argued March 16, 1988.
    Filed July 25, 1988.

      Charles S. Cusick, Jr., New Castle, for appellant.
    James P. Coulter, Butler, for appellee.
    Before TAMILIA, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

This is an appeal presenting, inter alia, the interesting issue of whether spouses can “live separate and apart” under the same roof. This appeal is from the order of court denying the appellant’s post-trial motions/exceptions to the decree of divorce and the bifurcation order entered by the Butler County Court of Common Pleas on January 12, 1987.

In her appeal from the lower court’s granting of R. George Mackey’s request for a unilateral divorce, Marion M. Mackey questions:

I. Whether the lower court’s determination that the parties had lived separate and apart for a period of at least three years was supported by the evidence.
II. Whether the lower court’s determination that the parties’ marriage was irretrievably broken was supported by the evidence.
III. Whether the lower court found sufficient factual and legal basis to permit bifurcation of the economic issues and to grant a unilateral divorce.

Having reviewed the record and the parties’ briefs, we affirm the lower court’s order denying the appellant’s motion/exceptions to the decree of divorce and bifurcation order.

The record reveals that Mr. and Mrs. Mackey were married in 1972 and resided on the Mackey farm since the date of their marriage. In the spring of 1983, Mr. Mackey informed Mrs. Mackey that he wanted a divorce, and, on July 20, 1983, Mr. Mackey filed a divorce complaint against his wife. Approximately three years later, on June 11, 1986, Mr. Mackey filed an amended divorce complaint and a Divorce Code § 201 affidavit alleging that the parties had lived “separate and apart” for over three years and their marriage was “irretrievably broken.” Mrs. Mackey responded that the parties had actually resided together in the marital residence for the past three years where they continued to carry out important aspects of their marital relationship. Mrs. Mackey also denied that the parties’ marriage was “irretrievably broken.” In August of 1986, Mr. Mackey filed a motion requesting that the court grant his divorce and bifurcate the case.

On September 23, 1986, a hearing was held and the following facts which are basically undisputed by the parties were elicited: At the time of filing the divorce complaint, Mr. Mackey was informed by his attorney that he would have to live separate and apart from his wife for a period of three years in order to effectuate the divorce. On his attorney’s advice, Mr. Mackey sought to establish separate living arrangements. Mr. Mackey, who is a dairy farmer by trade, has lived on the Mackey farm since 1921. Each morning, Mr. Mackey milks the cows and performs other farm labor throughout the day. Thus, Mr. Mackey felt it was essential that he continue to reside on the farm. Mr. Mackey asked his wife to leave the marital residence when he filed for divorce but Mrs. Mackey refused. Consequently, since July of 1983, Mr. Mackey slept in the farmhouse’s first floor bedroom which has an adjoining bathroom, and Mrs. Mackey resided on the second floor of the farmhouse. Although the parties continued to reside under the same roof, neither spouse regularly ventured into the other’s private living quarters.

Over the past three years, the parties shared the common areas of the farm house including the living room, kitchen and front porch. While the parties generally prepared their own meals and did their own grocery shopping, they occasionally ate meals together and shared food produced on the farm. In addition, Mrs. Mackey continued to clean the entire house including, on occasion, the downstairs bedroom, despite Mr. Mackey’s requests to the contrary. While the parties generally have not socialized together in public since Mr. Mackey filed for divorce, they have attended family picnics together, dined together in the presence of Mr. Mackey’s family, played doubles tennis together, and occasionally entertained guests at the farm together.

Since July of 1983, the parties’ joint bank accounts have been dissolved, and their finances have been kept separate. However, the parties filed joint income tax returns for 1983, 1984 and 1985, and the parties continued to share a number of joint expenses including the electric bill and phone bill. In addition, once a month, Mrs. Mackey would help Mr. Mackey record receipts on the farm accounts and tax ledger.

Since filing for divorce, Mr. Mackey has not shown any affection towards his wife. In fact, the parties have stipulated that they have not had sexual relations in the past three years. Over the past several years, Mr. Mackey has been involved in two extramarital affairs. While Mrs. Mackey was aware of her husband’s infidelity and did not approve, she admittedly “had learned to live with it.” Mrs. Mackey alleged that the parties’ marriage, while not perfect, was alive and that she was not estranged from her husband. However, Mr. Mackey testified that he no longer harbored romantic feelings for his wife.

We note that, for a couple involved in divorce proceedings, Mr. and Mrs. Mackey have a remarkably civil, if not amiable, relationship. The parties freely admit that they have not had any serious arguments during their marriage. Mr. Mackey testified that his wife is a “very considerate person” and that he “respect[s] her.” Both parties have made a conscious effort to remain friends during the past three years, and Mrs. Mackey has made an admirable attempt to preserve the marriage. However, Mr. Mackey steadfastly contends that the marriage is irretrievably broken.

On January 12, 1987, the trial court entered the aforementioned order and decree which granted Mr. Mackey’s request for a unilateral divorce and bifurcated the economic issues. Mrs. Mackey filed post-trial motions/exceptions to the court’s decree and order. However, on June 19, 1987, the lower court dismissed Mrs. Mackey’s motions/exceptions, and this appeal followed.

In reviewing a divorce case, it is our responsibility to make a de novo evaluation of the record and to determine independently of the lower court whether a legal cause of action exists. Flynn v. Flynn, 341 Pa.Super. 76, 491 A.2d 156, 158 (1985); Vajda v. Vajda, 337 Pa.Super. 573, 487 A.2d 409, (1985); Jones v. Jones, 311 Pa.Super. 407, 457 A.2d 951, (1983). Thus, under the present circumstances, we must apply Divorce Code § 201(d) to the facts before us. In pertinent part, § 201(d) of the Divorce Code reads as follows:

(d)(1) It shall be lawful for the court to grant a divorce where a party has filed a complaint and an affidavit alleging that the parties have lived separate and apart for a period of at least three years, and that the marriage is irretrievably broken, and:
(i) the respondent does not deny the allegations set forth in the affidavit; or
(ii) the respondent denies one or more of the allegations set forth in the affidavit, but after notice and hearing, the court determines that the parties have lived separate and apart for a period of at least three years and that the marriage is irretrievably broken.

First, the appellant contends that the lower court’s determination “that the parties have lived separate and apart for a period of at least three years” was not supported by the evidence.

Under the Divorce code, “separate and apart” is defined as the “complete cessation of any and all cohabitation.” 23 Pa.S.A. § 104. In Thomas v. Thomas, 335 Pa.Super. 41, 483 A.2d 945, 948 (1984), we found that “ ‘cohabitation’ means the mutual assumption of those rights and duties attendant to the relationship of husband and wife.” See also, Miller v. Miller, 352 Pa.Super. 432, 508 A.2d 550 (1986). In Flynn, 491 A.2d 156, we applied the Thomas definition of cohabitation and stated:

Thus, the gravamen of the phrase “separate and apart” becomes the existence of separate lives not separate roofs, (citations omitted). This position follows the trend of Pennsylvania case law in which a common residence is not a bar to showing that the parties live separate and apart in order to establish entitlement to support. Wechsler v. Wechsler, 242 Pa.Super. 356, 363 A.2d 1307 (1976); Commonwealth ex rel. DiPadova v. DiPadova, 223 Pa. Super. 408, 302 A.2d 510 (1973).
In the instant matter, it is evident that the parties, though living under the same roof but in separate parts of the house, have ceased all marital relations for a period in excess of three years. Therefore, we find that the parties have met the requirements of “separate and apart” under the Divorce Code.

Flynn, 491 A.2d at 159; See also, Biler v. Biler, 353 Pa.Super. 49, 508 A.2d 1261 (1986) (although husband and wife lived in the same home, they were separated so as to satisfy requirement for award of support).

Instantly, we find that the parties have lived “separate and apart” in accordance with the rule pronounced in Flynn, 491 A.2d 156, despite that fact that the parties reside in the same home. While the parties share the common areas of the house, both have private living quarters. The parties no longer have a public social life together. Significantly, the parties stipulate that they have not engaged in sexual relations with each other since June of 1983. Thus, we find that facts before us clearly manifest that the appellant lived a life separate from that of his wife, and, consequently, the parties have lived “separate and apart” within the meaning of Divorce Code § 201 for over three years.

For certain, the parties have shared some common household expenses, occupied common living spaces, visited family members together and occasionally entertained mutual friends at their residence. However, Mr. Mackey should not be denied a unilateral divorce merely because he and his wife have demonstrated a level of civility rarely seen in a divorce action.

As a farmer, Mr. Mackey must reside on his farm to tend his crops and care for his livestock in a proper manner. Instantly, we should consider the special requirements of Mr. Mackey’s farming operation, just as, in Flynn, 491 A.2d at 159, we considered “the economic hardship imposed in requiring parties to occupy separate house holds in order to dissolve their marriage under Section 201(d)____” Similarly, Mr. Mackey should not be forced to move from his farm, inhibiting his ability to farm effectively, to a separate residence to demonstrate his intention to live “separate and apart” from his wife. Moreover, Mr. Mackey need not vacate the family farm, his home since 1921, to live a separate life from his wife.

Second, the appellant contends that the lower court’s determination that the parties’ marriage was “irretrievably broken,” pursuant to Divorce Code § 201, was not supported by the evidence. Under the Divorce Code, the language “irretrievably broken” means “estrangement due to marital difficulties with no reasonable prospect of reconciliation.” 23 Pa.S.A § 104.

Under the circumstances, Mrs. Mackey’s continued desire to reconcile and settle the parties’ differences is highly commendable, and we regret that this marriage must be dissolved. However, a healthy marriage can only exist when nurtured by the love of both husband and wife. Mr. Mackey’s testimony unequivocally indicates that he no longer desires to be married to his wife. Moreover, since July of 1983, Mr. Mackey has demonstrated his desire for a divorce through both the parties’ living arrangements which he initiated and his romantic relationships with women other than his wife. While still legally married, it is clear that the couple can no longer be described as husband and wife but rather simply as “housemates.” Consequently, we find that the evidence on record conclusively demonstrates that there is no reasonable prospect of reconciliation between the parties.

Having determined that the parties have lived “separate and apart” for over three years and that the marriage is “irretrievably broken,” we find that the lower court correctly granted Mr. Mackey’s request for an unilateral divorce. Therefor, we must now dispose of the appellant’s contention that the lower court erroneously ordered bifurcation of the economic issues.

In reviewing a lower court’s decision to bifurcate, we will not overturn the lower court’s decision absent an abuse of discretion. Pennsylvania law is clear that the lower court should grant a party’s petition for bifurcation of economic claims and divorce claims only after carefully reviewing the facts of the case and determining that bifurcating will be of greater benefit than not bifurcating. Accordingly, “[a]s long as the trial judge assembles adequate information, thoughtfully studies this information, and then explains his decision regarding bifurcation, we defer to his discretion.” Wolk v. Wolk, 318 Pa.Super. 311, 464 A.2d 1359, 1362 (1983); Mandia v. Mandia, 341 Pa.Super. 116, 491 A.2d 177, 179 (1985); Fenstermaker v. Fenstermaker, 348 Pa.Super. 237, 502 A.2d 185, 192 (1985).

Instantly, the lower court was concerned about the division of the marital property. Also, the lower court stated that “determination of the [appellant’s] claim for counsel fees, costs, expenses, and her request to live in the marital abode for a reasonable period of time, still remain. The determination of these issues may be long, involved and stressful----” (Memorandum of June 19, 1987, p. 3). Having reviewed the record, we find that no abuse of discretion occurred when the lower court, finding that the advantages of bifurcation outweighed the disadvantages, granted Mr. Mackey’s motion for bifurcation.

In conclusion, we find that the parties have lived separate and apart for the requisite three-year period within the meaning of Divorce Code § 201(d)(1), despite living under the same roof. We also find that facts clearly demonstrate that the marriage is irretrievably broken. Therefor, we hold that the lower court correctly granted R. George Mackey’s request for a unilateral divorce from Marion M. Mackey. Further, we find that the lower court did not abuse its discretion when it granted Mr. Mackey’s motion for bifurcation. Hence, we hold that the lower court correctly denied the appellant’s post-trial motion/exceptions. Order affirmed.

      . The Decree of Divorce and Order of Court granting bifurcation of the economic issues read as follows:
      DECREE OF DIVORCE
      AND NOW, this 12th day of January, 1987, It is Ordered and Decreed That R. George Mackey and Marion M. Mackey are divorced and separated from the bonds of matrimony for all time to come, as if they had never been married.
      ORDER OF COURT
      AND NOW, this 12th day of January, 1987, after careful consideration, It is Ordered that plaintiffs Motion for Bifurcation of Trial is granted. The divorce having been decreed, the Court retains jurisdiction over all remaining issues.

      . Both parties admit they had sufficient funds to reside under separate roofs. However, Mr. Mackey contends he needed to remain close to his livestock and Mrs. Mackey, who did not want a divorce, refused to leave the marital abode. Mrs. Mackey alleges that Mr. Mackey, if he truly wanted a divorce, would have moved into a mobile home which is situated on their property. However, the mobile home was purchased for and used as the residence of Mr. Mackey’s hired farmhand.

      . When attending family picnics after July of 1983, Mr. and Mrs. Mackey always arrived at the events separately.

      . There is a tennis court on the grounds of the Mackey farm where the couple occasionally played doubles matches with mutual friends. However, the parties, rather symbolically, have not played a singles match since Mr. Mackey filed for divorce.

      . The record reveals one notable exception. In September of 1986, the parties testified that Mr. Mackey suffered a brief period (fifteen minutes) of “amnesia” during which he forgot about filing for divorce and embraced his wife in an outpouring of emotion. Both parties concede that Mr. Mackey was not in his normal state of mind when the incident occurred. (Reproduced Record, p. 42A, 70A-72A).

      . Our decision also reflects the public policy of the Commonwealth as declared in Divorce Code Section 102 which states that the legislature intended to "[e]ncourage and effect reconciliation and settlement of differences between spouses.” By allowing the parties now before us to reside "separate and apart” under the same roof, we have afforded them the greatest opportunity for reconciliation, while preserving the intent and effect of Divorce Code § 201(d)(1).

      . Neither party expressly requested an equitable distribution of the marital property. However, the court’s equitable power to effectuate economic justice, pursuant to Divorce Code § 401(c), allowed it to consider division of the marital property as a factor weighing in favor of bifurcation. See Fenstermaker, 502 A.2d at 192.


text:
    545 A.2d 367
    David A. NOBERS, Robert R. Campbell, Jr., Gasper P. Porto, and Gary T. Weekly, Individually and on Behalf of Themselves and all Others Similarly Situated, Appellant, v. CRUCIBLE, INC., a Corporation and Colt Industries, Inc., a Corporation, Appellees.
    Superior Court of Pennsylvania.
    Argued March 17, 1988.
    Filed July 25, 1988.

      Gregory Gleason, Pittsburgh, for appellants.
    Walter G. Bleil, Pittsburgh, for appellees.
    Before TAMILIA, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of the Court of Common Pleas of Beaver County granting the preliminary objections in the nature of a demurrer as to jurisdiction against the appellants/plaintiffs (David A. Nobers, Robert R. Campbell, Jr., Gasper P. Porto and Gary T. Weekly, individually, and on behalf of themselves and all others similarly situated). We reverse.

Since review of the sustainment of preliminary objections in the nature of demurrer is sought, the well-pleaded factual allegations set forth in the complaint are to be regarded as true. Itri v. Equibank, N.A., 318 Pa.Super. 268, 464 A.2d 1336 (1983). Further, if the facts as pleaded state a claim for which relief may be granted under any theory of the law, then there is sufficient doubt to require the preliminary objections in the nature of a demurrer to be rejected. Mazzagatti v. Everingham, 512 Pa. 266, 516 A.2d 672 (1986).

Viewed in this light, the record indicates that the plaintiffs filed a two-count complaint seeking “class action” certification to recoup damages from the appellees/defendants (Colt Industries, Inc. and its wholly owned subsidiary, Crucible, Inc., now incorporated as Colt Industries Operating Corp.) for violation of an alleged oral agreement/implied contract whereby the class of plaintiffs was “explicitly promised”, at the time of promotion from a colléctive bargaining unit to a supervisory or managerial position, “a right to return to the bargaining unit from which promoted at the time of layoff or to be treated as a bargaining unit person on layoff status.” (Paragraph 36)

Prior to the defendants ultimately closing all or part of their plant in Midland, the plaintiffs were laid-off or discharged as salaried employees instead of being returned to the bargaining unit out of which they initially were promoted or allowed to maintain laid-off status in the same unit. This, the plaintiffs contended, resulted in their incurment of damages “in the form of lost supplemental unemployment benefits____lost immediate pension benefits____lost pension benefits____ [and] lost insurance benefits.” (Paragraphs 43-46, 50-53)

Thereafter, the defendants filed a petition seeking to remove the suit to the United States District Court for the Western District of Pennsylvania on grounds of compliance with 28 U.S.C. §§ 1332 and 1441 (Diversity of citizenship and amount in controversy exceeded $10,000), as well as pendent and ancillary jurisdiction, the latter of which referred to the District Court’s prior ruling in favor of the defendants regarding the same subject matter in Nobers, et al. v. Crucible, Inc., et al., Civil Action No. 821846 (W.D.Pa. 1982), aff’d mem., 722 F.2d 733 (3rd Cir.1983) warranting such a removal.

The plaintiffs responded by submitting a motion with the same court seeking to remand the case to Common Pleas Court. Therein, they claimed that the joint actions of the defendants, which were inseparable and not discrete, rendered removal under Section 1441 inappropriate. Further, because the prior federal suit involved additional parties not presently named, was based on the Labor Management Relations Act (29 U.S.C. § 185) and was brought to enforce the terms of a collective bargaining agreement, as compared to an express or implied contract of employment, it was averred that “[t]here was no factual nexus between the two cases to which the principles of res judicata or collateral estoppel applied] such that the Court’s ancillary or pendent jurisdiction m[ight] be the basis for removal of the[ ] proceedings.” The District Court agreed and entered an order to that effect on February 8, 1985. 602 F.Supp. 703.

Twenty days after the District Court remanded the suit to Common Pleas Court, the defendants filed preliminary objections in the nature of a demurrer contemporaneously with presenting a complaint in federal court to enjoin the plaintiffs’ state action.

In its complaint, the defendants stated that the unfavorable outcome of the previous federal suit by the plaintiffs at No. 82-1846, being premised upon the same allegations of contractual breach, made the state suit nothing more than “an attempt to evade judgment in Civil Action No. 82-1846” by the plaintiffs. Additionally, the defendants asserted that the plaintiffs’ claims seeking the recoupment of damages “relate[d] to an[ ] employee benefit plan[ ]”, and, as a result, were exclusively within the province of the Employee Retirement Income Security Act (ERISA) and not subject to review in state court.

The plaintiffs filed an answer to the federal complaint in which they alleged, inter alia, that the state action was premised upon “a common law claim for breach of contract” and not a violation of a collective bargaining agreement, as had been the case in the earlier federal suit. Thus, res judicata did not apply. Further, the plaintiffs went on to contend, “because there [were] no federal claims in the pending state court action”, notions of federal pre-emption did not come into play since “[questions of pre-emption are determined by reference to the basis of liability not the scope of the remedy.” The end result of the federal complaint was its dismissal by court order dated August 12, 1985.

As for the content of its preliminary objections, the defendants averred that “no employment relationship” existed between Colt Industries, Inc. and the plaintiffs. Thus, no agreement, either oral or written, bound the two contractually. Also, because the plaintiffs’ prior federal suit covered “virtually” the same subject matter, “[t]he instant action [was] ... barred by the doctrine of res judicata.” (Defendants’ Complaint, Paragraph 12)

In response, the plaintiffs denied the availability to the defendants of res judicata or collateral estoppel as a defense since the issue litigated in the earlier federal suit (scope of collective bargaining agreement) was not identical to the present suit, which, in contrast, sought relief under “common law claims for breach of an express and/or implied contract of employment.” (Plaintiffs’ Response to Defendants’ Preliminary Objections, Paragraph 3)

Prior to argument, the defendants filed an amendment to their preliminary objections contending that, by stipulation, the parties had agreed that the plaintiffs’ suit against the defendant Colt Industries was for tortious interference of the plaintiffs’ contract with Colt Industries Operating Corp., Colt’s subsidiary. As such, the tort allegedly committed by Colt Industries, Inc. was “solely cognizable under Section 510 of ... ERISA, 29 U.S.C. § 1140”, resulting, so believed the defendants, in the state action being pre-empted by Section 514 of ERISA, 29 U.S.C. § 1144 and subject to dismissal.

Following argument, the Common Pleas Court issued an order granting, the defendants’ preliminary objections as to jurisdiction and dismissed the action. This timely appeal ensued.

The sole contention raised centers upon whether the plaintiffs’ common law cause of action for breach of contract, alleging the loss and seeking the reinstatement of supplemental unemployment, pension and insurance benefits, is pre-empted by ERISA so as to divest Common Pleas Court of jurisdiction to hear the complaint.

As noted most recently by a panel of this Court:
“[TJhe question whether a certain state action is preempted by federal law is one of congressional intent. ‘ “The purpose of Congress is the ultimate touchstone.” ’ ”

Engle v. West Penn Power Co., 366 Pa.Super. 104,107, 530 A.2d 913, 915 (1987) (Citation omitted).

In light of the aforesaid, we observe that Congress enacted ERISA to afford comprehensive federal protection of the interests of participants in employee benefit plans. See 29 U.S.C. § 1001; Lukus v. Westinghouse Electric Corp., 276 Pa.Super. 232, 419 A.2d 431 (1980) (allocatur refused, June 1, 1980). Instantly no one disputes that the defendants’ Supplemental Unemployment Benefit Plan, Pension Agreement and Program Insurance Benefits fall under the label of either an employee benefit plan, defined benefit plan or welfare benefit plan, respectively. (See RR 22a, 40a and 87a) And, as such, are subject to the provisions of ERISA. See 29 U.S.C. § 1003. State regulation of the plans is therefore restricted by 29 U.S.C. § 1144, which provides:

(a) Except as provided in subsection (b) of this section, the provisions of this subchapter and subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan____
******
(c) For purposes of this section:
(1) The term “State law” includes all laws, decisions, rules, regulations, or other State action having the effect of law, of any State.
(2) The term “State” includes a State, and political subdivisions thereof, or any agency or instrumentality of either, which purports to regulate, directly or indirectly, the terms and conditions of employee benefit plans covered by this subchapter.

(Emphasis added)

It is the position of the defendants and the court below that the plaintiffs’ claim for damages, inasmuch as it seeks satisfaction through the attainment of benefits provided for under the various plans, “related to” employee benefit plans. This, in turn, brings the plans within the ambit of ERISA’s pre-emptive status, and, as a result, subjects the suit to exclusive federal jurisdiction. (See Defendants’ Brief at 7; Lower Court’s Opinion at 7) We find the contentions of the defendants and court below to be disingenuous, and we do so on the instructive case of Shaw v. Westinghouse Electric Corp., 276 Pa.Super. 220, 419 A.2d 175 (1980) (reargument denied, July 8, 1980).

In Shaw, the plaintiff filed a two-count complaint in assumpsit, the first portion of which concerns us since it was alleged therein that the plaintiff’s employer breached its contract with Shaw by not paying him promised salary increases. It was further averred that, as a result of the breach, Shaw sustained losses in (1) “retirement and disability benefits” and (2) “pension benefits”.

Prior to completion of the trial, the employer filed a motion to dismiss the action on the ground that ERISA rendered the court without jurisdiction over the subject matter of the complaint. With the denial of the motion, an appeal was perfected to this Court. In the course of denying the employer’s arguments with regard to the preemptive effect of ERISA, we wrote:

Section 1144(a) explicitly states that the provisions of ERISA supersede state laws only “insofar as they ... relate to any employee benefit plan.” The question for disposition, therefore, is whether Shaw’s assumpsit action against Westinghouse for disability and retirement benefits may be said to “relate to” the disability benefits and retirement pension plans established by Westinghouse for its employees. More precisely, the question is whether Shaw’s assumpsit action constitutes an attempt to regulate areas explicitly governed by the provisions of ERISA, or whether the action relates primarily to matters not governed by ERISA, and only indirectly affects Westinghouse’s employee benefit plans in a way not in conflict with the purposes ERISA is designed to achieve. If the former is true, then the action may be pre-empted by section 1144; but if the latter is true, the action is not pre-empted. See Lukus v. Westinghouse Electric Corp., supra, (collecting cases); Commonwealth ex rel. Magrini v. Magrini, 263 Pa.Super. 366, 398 A.2d 179 (1979).
$ * * # sjc #
The present case ... involve[s] ... allegations] that Westinghouse established a plan providing fewer benefits than the benefits Westinghouse promised him, Shaw alleges that Westinghouse has paid him less salary and fewer bonuses than it promised to pay, and that as a result, he has received, and will continue to receive in the future, fewer benefits under Westinghouse’s disability benefits and retirement pension plans than he would have received had he been properly paid by Westinghouse. Thus, in order for Shaw to recover on his claims, the lower court will be required to determine what Shaw’s benefits would have been under the plans had Westinghouse paid him the promised salary increases and bonuses. Additionally, the court may be required to determine whether Shaw will have a future claim against the disability benefits and retirement pension plans for increased benefits based upon a judgment recovered against Westinghouse on his salary and bonus claims. Should the lowér court find it necessary to address such issues, then it might be argued that the lower court would be making an adjudication “relating to” the plans. We are, nevertheless, unable to conclude that the lower court’s adjudication would violate section 1144 of ERISA.
Initially, we note that section 1132(e)(1) of ERISA grants state courts competent jurisdiction and federal district courts concurrent jurisdiction of an action brought by a participant in an employee benefit plan to recover benefits due to him under the terms of the plan, or to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan. Thus, Congress has explicitly given state courts the power to adjudicate the very issues the lower court may be required to reach in Shaw’s suit against Westinghouse.
% He * * * #
... the nature of Shaw’s action and the limitation in section 1144(a) of ERISA that only state laws that “relate to” employee benefit plans are superseded by the Act. Shaw’s suit against Westinghouse relates solely to Westinghouse’s liability for breach of an employment contract. Admittedly, in determining Westinghouse’s liability, the lower court may have to make determinations concerning Shaw’s present and future rights to benefits under Westinghouse’s plans, and decide whether Shaw’s right to participate in the plans has been wrongfully impaired by Westinghouse. Yet, these determinations will affect only the rights and liabilities of the parties to this action (ie., Shaw and Westinghouse) towards each other; specifically, unless Westinghouse and its employee benefits plans are privies or the plans perform some act that estops them from questioning the lower court’s determinations at a later date, the determinations of the lower court in this case will not conclude the rights and liabilities of the plans and Shaw inter se. See generally Safeguard Mutual Ins. Co. v. Williams, 468 Pa. 567, 574, 345 A.2d 664, 668 (1975); Albert v. Lehigh Coal & Nav. Co., 431 Pa. 600, 613, 246 A.2d 840, 846 (1968); Thompson v. Karastan Rug Mills, 228 Pa.Super. 260, 323 A.2d 341 (1974).

276 Pa.Super. at 227-230, 419 A.2d at 179-180 (Footnote omitted; emphasis in original).

At bar, as in Shaw, the plaintiffs’ suit relates solely to the defendants’ liability for breach of an employment contract, the existence of which is in dispute and, therefore, subject to resolution by a fact-finder. More importantly, as pointed out in Shaw, the plaintiffs’ rights to benefits and whether participation under the various plans have been wrongfully denied “affect[s] only the rights and liabilities of the parties to this action”, and “the determinations of the lower court in this case will not conclude the rights and liabilities of the plans and [the plaintiffs] inter se.” Id.

The association between the suit and the plans being tangential at best, we fail to see how ERISA is any more than incidentally involved, a factor which counsels against us concluding that the plaintiffs’ claim is pre-empted by ERISA. To the same effect see Welsh v. Northern Telecom, Inc., 85 N.C.App. 281, 354 S.E.2d 746 (1987); Golen v. Chamberlain Manufacturing Corp., 139 Ill.App.3d 53, 93 Ill.Dec. 677, 487 N.E.2d 121 (1985); and Shaver v. N.C. Monroe Construction Co., 63 N.C.App. 605, 306 S.E.2d 519 (1983), and compare with B.F. Tatterson v. Koppers Co., Inc., 312 Pa.Super. 326, 458 A.2d 983 (1983).

Since we conclude that Shaw controls the outcome of this case and warrants a reversal of the lower court’s actions, we see no need to engage in a dissertation of the law other than what has already been stated on the subject under review.

Accordingly, consistent with our findings this day, we reverse the judgment of the court below. Jurisdiction is relinquished.

      . 29 U.S.C. § 1001 et seq.


author: CIRILLO, President Judge:

text:
    545 A.2d 371
    Torriona MITCHELL, Appellant, v. Anthony Charles HOPSON.
    Superior Court of Pennsylvania.
    Argued May 3, 1988.
    Filed Aug. 3, 1988.

      Lorraine M. Bittner, Pittsburgh, for appellant.
    Before CIRILLO, President Judge, and BECK and POPOVICH, JJ.
   CIRILLO, President Judge:

This is an appeal from an order entered by the Court of Common Pleas of Allegheny County.

On October 3, 1985, appellant Torriona Mitchell initiated this action by filing a complaint for support of her infant son, Anthony Charles Hopson, Jr. (Anthony), who was born on September 20, 1985. When Anthony was born, Ms. Mitchell applied for and was determined to be eligible to receive monetary public assistance for Anthony from Aid to Families with Dependent Children (A.F.D.C.). As a condition to receiving this public assistance, Ms. Mitchell was required to file this support action against the man she alleges to be her son’s father, namely Anthony Charles Hopson.

Pursuant to Ms. Mitchell’s complaint, an informal conference was held at which Mr. Hopson denied paternity of Anthony. Immediately following the conference, the court issued an order, pursuant to section 6133 of the Uniform Act on Blood Tests to Determine Paternity, requiring the parties to present themselves promptly at 9:15 a.m. on July 17, 1986, at the University Health Center of Pittsburgh for blood tests. The parties complied with the order and the Human Leucocyte Antigen (H.L.A.) blood test was performed.

The test results, which excluded Mr. Hopson as the father of Anthony, were then sent to the family court division of the court of common pleas and entered onto the court docket. Shortly thereafter, the trial court entered the following order:

AND NOW, this 22nd day of August, 1986, it appearing to the Court that Plaintiff has filed a complaint against Defendant for support for a child born out of wedlock and that the blood test results, a copy of which are attached hereto, have excluded the Defendant as the father of the child Anthony Hopson, Jr., born September 20, 1985, it is hereby ordered as follows:
1. ) A rule is issued on Plaintiff to show cause why the support complaint should not be dismissed.
2. ) In the event that Plaintiff has any reason why this case should not be dismissed she must file a statement of such reasons ...
3. ) If no such statement is filed within thirty (30) days of the date of this order, the case is dismissed.

The order also assessed the cost of the blood test, $450.00, against Ms. Mitchell.

On August 25,1986, Ms. Mitchell, who was unrepresented by counsel at the time, filed a handwritten statement in which she asserted that she still had cause to believe that Mr. Hopson was the father of her son Anthony. In support of this contention, she stated that the child resembled Mr. Hopson and had hereditary medical problems which run in Mr. Hopson’s family. Ms. Mitchell also expressed her belief that there had been a mix-up in the blood samples used in the H.L.A. blood test and requested that another test be performed at her expense.

In response to Ms. Mitchell’s request for a second blood test, a pre-trial conference at which both parties were to be present was scheduled for December 2, 1986. At that time, only Ms. Mitchell appeared. Following the conference, the trial court entered an order directing Ms. Mitchell to pay six hundred dollars ($600.00) within thirty days. Upon receipt of the sum, additional blood tests were to be scheduled. In the event Ms. Mitchell did not pay the stated amount, her action was to be dismissed.

After the entry of this order, Ms. Mitchell secured legal counsel who assisted her in filing a petition for reconsideration. In the petition, she explained her financial inability to pay the six hundred dollars within the thirty day period. In addition, she requested that the costs of the first blood test be assessed against the county, that a second set of blood tests be scheduled at a specific hospital where she would be better able to make payment arrangements, and that she be permitted to pursue her action. In an order dated January 6, 1987, the trial court denied her petition without comment.

Thereafter, on August 26, 1987, the court entered an order dismissing Ms. Mitchell’s support action due to her failure to comply with the court’s order to pay the cost of the additional blood tests. Subsequently, on September 22, 1987, Ms. Mitchell filed this appeal.

Ms. Mitchell raises the following issues for our review: (1) whether the trial court’s sua sponte dismissal of this action without a hearing and based upon blood test results never admitted into evidence violates case and statutory law, violates her right to due process, and is an abuse of discretion; and (2) whether the trial court’s order directing the prepayment and the assessment of the costs of blood tests upon her violates case and statutory law as well as her right to due process.

In its opinion filed pursuant to Pa.R.A.P. 1925(a), the trial court responded to the first issue raised by Ms. Mitchell by stating that:

In dismissing the instant action, this Court did what it was compelled to do since the initial blood tests conclusively excluded HOPSON as being the father of MITCHELL’S minor child. Had this case gone through the futile exercise of trial, this Court would have been required, pursuant to Section 6136 of the [Uniform] Act [on Blood Tests to Determine Paternity], to grant a compulsory non-suit in favor of HOPSON____ The Court was mandated by the conclusive results of the blood tests to resolve the issue of paternity in favor of HOPSON, which it did when it dismissed MITCHELL’S Complaint for Support.

The Uniform Act on Blood Tests to Determine Paternity (Uniform Act) applies to all civil matters. 42 Pa.C.S. § 6132(a) (1982). Since all, actions in which the paternity of a child born out of wedlock is in dispute are civil actions, 23 Pa.C.S. § 4343 (Supp.1987), the Uniform Act applies to the case at hand. Section 6136 of the Uniform Act, which is titled “Effect of test results,” states the following:

If the court finds that the conclusions of all the experts as disclosed by the evidence based upon the tests are that the alleged father is not the father of the child, the question of paternity, parentage, or identity of a child shall be resolved accordingly. If the experts disagree in their findings or conclusions, the question shall be submitted upon all the evidence.

42 Pa.C.S. § 6136 (1982). This section directs trial courts to resolve cases accordingly if they find that the conclusions of all the experts as disclosed by the evidence based upon the tests are that the alleged father is not the father of the child; it does not authorize trial courts to dismiss or resolve actions involving paternity disputes on the basis of blood tests when those blood tests have never been entered into evidence.

In Commonwealth ex rel. Valentine v. Strongel, 246 Pa.Super. 466, 371 A.2d 931 (1977), Ms. Valentine filed a petition for support of her illegitimate child. Mr. Strongel, the alleged father, denied paternity. Consequently, prior to trial, the court ordered that blood tests be performed on Ms. Valentine, Mr. Strongel and the child. The experts who performed the tests made written reports of their findings to the court. In addition, the results were mailed to both parties. At trial, however, no one testified regarding the blood test results. Consequently, on appeal, we found that there was absolutely no evidence in the record of the occurrence or result of any blood test and that it was error for the trial court to consider the blood tests in making its determination regarding the paternity dispute.

The instant case did not even progress to the stage of trial. Rather, the trial court dismissed this action sua sponte following the hearing it held on Ms. Mitchell’s request for an additional blood test. This was clearly error. Although the blood tests were performed pursuant to the court’s direction, it is up to the parties involved in this action to move for the admission of the tests into evidence. Moreover, unless the blood tests are put into evidence, they cannot be considered by the court in resolving the paternity dispute. “The right of a litigant to in-court presentation of evidence and the right to confront and cross-examine adverse witnesses are essential requisites of due process.” Coble v. Coble, 323 Pa.Super. 445, 447, 470 A.2d 1002, 1003 (1984). By dismissing Ms. Mitchell’s action on the basis of the blood test results, the trial court denied Ms. Mitchell her right to due process as well as her right to confrontation. Consequently, we must vacate the trial court’s order dismissing Ms. Mitchell’s action. Further, we direct the trial court to hold a hearing to resolve the issue of Mr. Hopson’s paternity of Anthony. At the hearing, the parties must be given the opportunity to move the results of the blood test into evidence. See Turek v. Hardy, 312 Pa.Super 158, 164, 458 A.2d 562, 565 (1983) (“Before results of H.L.A. testing are admissible, a proper foundation must be laid”). In addition, Ms. Mitchell must be given the opportunity not only to argue against the validity of the results (assuming the results are actually moved into evidence), but also to offer evidence regarding other factors which are relevant to establishing Mr. Hopson’s paternity of Anthony, such as Anthony’s physical resemblance to Mr. Hopson. See Tyler v. King, 344 Pa.Super. 78, 96, 496 A.2d 16, 25 (1985) (comparison of child’s physical traits to those of alleged father a valid comparison in paternity cases); Commonwealth ex rel. Lonesome v. Johnson, 231 Pa.Super. 335, 331 A.2d 702, 704 (1974) (clear physical resemblance between child and alleged father considered as evidence of his paternity). At the close of the evidence, the trial court must decide whether Ms. Mitchell has proven by a preponderance of the evidence admitted during the course of the hearing that Mr. Hopson is Anthony’s biological father. If the blood test results have not been entered into the evidence by one of the parties, the trial court may not rely upon them in rendering its verdict.

Regarding the second issue raised by Ms. Mitchell, we note that in Koleski v. Park, 363 Pa.Super. 22, 525 A.2d 405 (1987), we limited the right to subsequent blood extraction to those situations in which the proponent of further testing shows by a preponderance of the evidence that the initial test was defective and that a subsequent test is needed for an accurate determination of paternity. In addition, we held that this showing is to be made at a hearing in which the only issue involved is the validity of the tests. If the proponent of the additional testing satisfies the required showing, then further testing is to be ordered by the court.

Further testing may not be conditioned upon the prepayment of the cost of the testing. In Johnson v. Brinker, 326 Pa.Super. 464, 474 A.2d 333 (1984), we ruled that an order for submission to blood tests to determine paternity may not require any indigent party to pay any portion of costs of the blood tests as a condition precedent to their administration. This holding applies equally well to those situations in which the right to additional blood testing is found to exist.

In this case, although the December 2, 1986, hearing was untranscribed, it appears from the trial court’s order and subsequent opinion) that this hearing was held solely to address the issue of the necessity for further blood testing. Thus, it would seem to satisfy the hearing requirement formulated in Koleski. Following the hearing, however, the trial court entered an order which provided for additional blood testing on the condition that Ms. Mitchell pay for the cost of the blood test within thirty days of the court’s order. This order was improper and must be vacated. We note that in the trial court’s Rule 1925(a) opinion, the court determined that it should not have granted Ms. Mitchell’s request for another blood test. On remand the trial court must enter an order either unconditionally granting additional blood testing or denying the same.

The trial court also assessed the costs of the first blood test against Ms. Mitchell. However, in its opinion, the trial court states that “it would appear that since the Department of Public Welfare mandates, as a prerequisite to assistance entitlement, that an indigent individual file a Complaint for Support if necessary to establish the paternity of the child born out of wedlock, that agency should be responsible for the costs associated with that proceeding.” We agree with this determination.

As a condition to receiving monetary assistance for Anthony from A.F.D.C., Ms. Mitchell is required to cooperate in establishing Anthony’s paternity and in obtaining support payments to which Anthony might be entitled. 42 U.S.C. § 602(a)(26); 62 P.S. §§ 432.7(a)(3), (4). It is, however, the Department of Public Welfare which is actually charged with the responsibility of establishing paternity and securing support payments. See 45 C.F.R. § 302.31 (1987). The Department of Public Welfare is Pennsylvania’s “IV-D Agency.” Accordingly, it bears the responsibility of administering and supervising the Commonwealth’s A.F.D.C. program. See 42 U.S.C. § 601 et seq. Under 42 U.S.C. § 654, the Department of Public Welfare is required to establish the paternity of children born out of wedlock and to enter into “cooperative agreements with appropriate courts and law enforcement officials ... including the entering into of financial arrangements with such courts and officials in order to assure optimum results under its program.” 42 U.S.C. §§ 654(4), (7). This statute clearly contemplates payment for blood tests, not by the recipients of public assistance funds, but by the Department of Public Welfare or the local domestic relations office with whom it contracts. See 62 P.S. § 432.7(e)(1). Accordingly, on remand, the trial court should re-evaluate its order assessing the costs of the blood test on Ms. Mitchell.

Based on the foregoing discussion, we vacate the following orders of the trial court: (1) the order assessing the costs of the first blood test on Ms. Mitchell; (2) the order conditioning the additional blood test on Ms. Mitchell’s payment of six hundred dollars in thirty days; and (3) the order dismissing the action. In addition, we remand for further proceedings consistent with the preceding instruction. Jurisdiction relinquished.

      . Section 6133 states:
      In any matter subject to this subchapter in which paternity, parentage or identity of a child is a relevant fact, the court upon its own initiative or upon suggestion made by or on behalf of any person whose blood is involved may, or upon motion of any party to the action made at a time so as not to delay the proceedings unduly, shall order the mother, child and alleged father to submit to blood tests. If any party refuses to submit to such test, the court may resolve the question of paternity, parentage, or identity of a child against such party, or enforce its order if the rights of others and the interests of justice so require.
      42 Pa.C.S. § 6133 (1982).

      . In reaching this conclusion the trial court observed the limitation to subsequent blood extraction which we formulated in Koleski, and then reasoned that:
      The limitations placed upon granting a request for a second blood test indicate that the instant proceeding did not present such circumstances so as to compel the second test. MITCHELL did not demonstrate that the initial test was so defective as to necessitate a second test to determine paternity. The only question raised as to the validity of the first test was MITCHELL’S suspicion that HOP-SON’S tardiness in some fashion may have impaired the test results. Absent something more than a mere surmise, this Court cannot and should not have granted MITCHELL’S request.

      . Section 6135 of the Uniform Act states:
      The compensation of each expert witness appointed by the court shall be fixed at a reasonable amount. It shall be paid as the court shall order. Subject to general rules, the court may order that it be paid by the parties in such proportions and at such times as it shall prescribe or that the proportion of any party be paid by the county and that after payment by the parties or the county, or both, all or part or none of it be taxed as costs in the action____
      42 Pa.C.S. § 6135.


author: TAMILIA, Judge:

text:
    545 A.2d 376
    Deborah J. STEELE v. Bryan R. STEELE, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 13, 1988.
    Filed Aug. 5, 1988.

      Barry L. Smith, Warren, for appellant.
    Scott G. Casher, Cresson, for appellee.
    Before TAMILIA, JOHNSON and CERCONE, JJ.
   TAMILIA, Judge:

Appellant is the father of two children, a six year old boy and four year old girl, who reside with their mother, the appellee. Prior to the parties’ divorce, an agreement by the parties was reduced to an Order of court, in which appellant was granted liberal visitation with the children while appellee was granted permanent legal and physical custody. Pursuant to the Order, entered April 7, 1986, appellant had visitation from noon until 6:00 p.m. each Sunday and from 6:00 p.m. Friday until 5:00 p.m. Sunday every third weekend of each month. From the date of the Order through the date appellant filed his petition for contempt, November 13, 1987, the parties have been unable to amicably cooperate in practically all matters pertaining to the children. Appellant, the more aggressive of the two, was charged with four counts of harassment by communication stemming from phone calls made to appellee, for which he was placed on probation. His parole was revoked on June 6, 1986 and appellant was sentenced to the county jail for six to forty-eight months. He was also ordered to undergo mental health counselling because of letters written to the trial judge which evidenced severe emotional distress.

Appellant filed his petition for contempt claiming appellee repeatedly denied his rights to visitation without cause. During a hearing on the matter on December 14, 1987, appellant claimed he had been denied the right to see his children since September because appellee was having trouble controlling the children and said it was appellant’s fault. Appellant admitted he harassed appellee for which he was convicted of violating a protection from abuse order but he claims he no longer does those things. Appellee stated appellant had the children in September and October but not at all in November because he hadn’t requested them. Appellee did deny appellant’s request for the boy on October 17 because appellant wanted to take his son squirrel hunting and appellee thought it was inappropriate to ask for just one child. She also thought her son was too young to be taken on a hunting trip. Appellant wanted to take the children trick or treating on a non-visitation weekend but appellee refused to let them go; she had told her son he could not go trick or treating that year because he had stolen a gun from a department store. Appellee testified appellant has harassed her and used vulgar language in front of the children and gave his daughter a doll with a penis. She also stated appellant spit on her twice, at least one time with the children present.

The trial court denied appellant’s petition for contempt and instead issued a new visitation Order limiting appellant’s visits with his children to one day a month under supervision by Children and Youth Services (CYS). The judge ordered both parties to attend parenting classes offered by CYS, thereafter permitting more frequent visitation by appellant if CYS believed it would benefit the children. He would also be permitted visitation with the children without CYS supervision if the agency thought it was appropriate and within the children’s best interest. It is from this Order appellant appeals raising four issues: 1) whether the trial court abused its discretion in not holding appellee in contempt; 2) whether the termination of the prior visitation/custody Order was in the best interest of the children; 3) whether the new Order which limited appellant’s visitation to one day per month was the least restrictive alternative; and 4) whether the issue of modification of the prior custody/visitation Order was properly before the court and was appellant denied due process thereby.

We disagree with appellant’s first claim that the trial court abused its discretion by not holding appellee in contempt. A trial court’s finding on a contempt petition is not going to be disturbed absent an abuse of discretion. Kozlowski v. Kozlowski, 362 Pa.Super. 516, 524 A.2d 995 (1987). In Mellott v. Mellott, 328 Pa.Super. 200, 476 A.2d 961 (1984), the wife allowed her children to go away on several weekends which were scheduled for visits by the father. We upheld the trial court’s finding of noncontempt by stressing we place great reliance on the trial judge’s discretion. We have considered the testimony of both parties and can find no reason to call the court’s decision an abuse of discretion. Appellee denied appellant’s requests for the children twice — once because she disapproved of her five year old son going squirrel hunting and once, which was not appellant’s weekend for visitation, because her son could not go trick or treating as punishment for stealing. Thus we believe the trial court was correct in rejecting appellant’s contempt petition.

We agree with appellant, however, that the trial court improperly vacated its April 7,1986 custody/visitation Order.

Procedurally, this case presents two issues which have not been fully dealt with by counsel for either party or the trial judge. The first is whether, during a contempt hearing, the court can modify a visitation Order; the second being whether the court may order Children and Youth Services to assume supervision of children as a result of a contempt hearing arising from a custody visitation Order. Here, the trial court modified the custody Order and directed visitation with the father to be supervised by CYS and the parents to attend parenting classes offered by CYS. As to the modification Order, we hold the court erred only in a technical way but not in substance. We agree with appellant that the appropriate manner to bring about a change in a custody/visitation Order is by petition for modification, which would follow, generally the procedure under Pa.R. C.P. 1915.3, Commencement of Action. However, this does not prevent the trial court, under appropriate circumstances to alter a custody/visitation Order when it is in the best interest of the child to do so. Recognizing that circumstances may change abruptly, and to provide for a means to bring about emergency relief that is traditionally available under the writ of habeas corpus, the Rules of Civil Procedure provide for special relief as follows:

Rule 1915.13. Special Relief
At any time after commencement of the action, the court may on application or its own motion grant appropriate interim or special relief. The relief may include but is not limited to the award of temporary custody, partial custody or visitation; the issuance of appropriate process directing that a child or a party or person having physical custody of a child be brought before the court; and a direction that a person post security to appear with the child when directed by the court or to comply with any order of the court.

Thus, while the court could not act to modify the visitation Order permanently without a petition to modify, the trial court properly recognized he had the authority to suspend the visitation Order because of the violent and irrational tendencies of the appellant and to protect the child during visitation by having visits supervised by CYS. Likewise, the court realized the parents would not be capable of resolving their conflicts without counselling and appropriately directed them to attend parenting classes with CYS. The form of the Order modifying visitation was incorrect, as under Rule 1915.13, it should be a temporary Order, in effect, suspending the prior Order until the program specified by the court was satisfactorily completed and/or a new permanent custody Order was entered, pursuant to a petition for modification. The due process requirements for custody proceedings must be closely adhered to to assure that in local as well as intercounty/interstate custody actions the proper foundation is present for the frequently hotly litigated, sometimes tumultuous, subsequent proceedings. Thus the custody Order entered on April 7, 1986 is reinstated but is suspended temporarily to fulfill the directions of the trial court in its Order of December 14, 1987 (filed December 17, 1987). Upon remand, appellant may petition for review of the December 14, 1987 Order, and the trial court may set the review date in its discretion at a point in time when it believes sufficient progress may have been achieved.

As to the second issue, while it is improper to place a child under the supervision of CYS, as its ward, without a dependency petition, hearing and adjudication under the Juvenile Act, as opposed to a custody petition, see Helsel v. Blair Co. CYS, 359 Pa.Super. 487, 519 A.2d 456 (1986), we believe the trial court acted properly. Under the facts presented here, the trial court is using the services of CYS as it would any other available counselling service, private or public. No Order of supervision pertinent to the Juvenile Act was made, indeed none was claimed, thus no error exists.

As to the other issues raised by appellant, they have been, in most respects, answered above, and as to the remedy fashioned by the court, we can find no fault as we believe Judge Wolfe acted in a wise and prudent fashion for the best interest of the children and there is no abuse of discretion. His was the least restrictive (and detrimental) alternative available. It now remains with the parents to act responsibly and to put their lives and relationships to the children in order, for their mutual benefit. Therefore, we modify the Order of December 14, 1987 causing it to be a temporary rather than permanent Order, pursuant to Pa.R.C.P. 1915.13, and remand for the trial court to reinstate the April 7, 1986 custody/visitation Order.

Order affirmed in part and modified in part; remanded for reinstatement of the April 7, 1986 Order. Jurisdiction relinquished.