author: POPOVICH, Judge:

text:
    593 A.2d 1279
    COMMONWEALTH of Pennsylvania, Appellee, v. Donald D. RICHARDS, Appellant. (Three Cases). COMMONWEALTH of Pennsylvania, Appellee, v. Donald D. CRAVENS, Appellant. (Three Cases).
    Superior Court of Pennsylvania.
    Argued April 24, 1991.
    Filed June 25, 1991.

      James V. Fareri, Stroudsberg, for appellants.
    Curtis Rogers, Asst. Dist. Atty., Stroudsberg, for Com.
    Before KELLY, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

This is an appeal from two judgments of sentence entered in the Court of Common Pleas of Monroe County. We affirm in part and reverse and vacate in part.

The appellants Donald Richards and Donald Cravens have adequately set forth the facts and procedural history of this case. Thus, we adopt their statement for purposes of appeal.

The within matter concerns the consolidated Appeals of Donald D. Richards and Donald D. Cravens from a determination by Judge Peter J. O'Brien of the Monroe County Court of Common Pleas, that said appellants are guilty of certain summary criminal violations.
Donald D. Richards (hereinafter “Richards”), is the principal of D & R Livestock, Inc., a Tennessee corporation, [and] is the registered owner of a certain tractor and trailer which was involved in a motor vehicle accident in Monroe County on December 26,1989. The driver of said tractor trailer at the time of said accident was Defendant-Appellant, Donald D. Cravens (hereinafter “Cravens”).
The accident which occurred on December 26, 1989 involved a car and the above-described tractor trailer. (R.13a.) As Cravens was driving south on Route 209, the driver of a motor vehicle proceeding in a northerly direction lost control, spun out and came directly into the southbound lane, striking the front of the vehicle driven by Cravens. (R. 28a.) As a result of the accident, the two individuals in the motor vehicle were killed, a mother and an infant. (R. 13a-14a; 28a.)
Cravens was not issued any citations for any moving violations concerning the fatal accident. (R. 29a.) However, Pennsylvania State Police Trooper Ustonofski, was dispatched to conduct an inspection of the tractor and trailer operated by Cravens. (R. 14a.)
As a result of an inspection performed by Trooper Ustonofski of the tractor and trailer, the Trooper issued three summary citations each to Cravens and Richards. (R. la-6a.)
The citations received by Cravens and Richards are identical except for the identity of the defendant. All of the citations cite § 4107(b)(2) of the Pennsylvania Motor Vehicle Code, the statute which has been violated. Id. Cravens and [Richards] each received a citation which describes the “Nature of the Offense” as follows: “Violation of Title 67 (Sect. 396.3) [—] Trl axle brakes out of adj.” (R. la, 4a.) The other two citations received by both defendants relate to the alleged failure of Cravens to maintain what Trooper Ustonofski described as a “duty log” for the vehicle operated by him on December 26, 1989. A “duty log” is a record of duty status that is completed by [the] driver to demonstrate [that] “he has not been driving too long in a consecutive period of time.” (R. 22a.) The first of these citations describes the “Nature of the Offense” as follows: “Violation of Title 67 (Sect. 395.8K3) [—] failed to have record of duty status for day of exam & previous 7 days.” (R. 3a, 6a.) The second of these citations relating to the failure to maintain a log book describes the “Nature of the Offense” as follows: “Violation of Title 67 (Sect. 395.8A) [—] [Defendant] failed to maintain a record of duty status.” (R. 2a, 5a.)
Both Defendants pled not guilty to all of the citations and [a] summary trial was conducted before District Justice Debby York, who found the Defendants guilty on all six citations. A timely Appeal was filed to the Monroe County Court of Common Pleas, pursuant to the Pennsylvania Rules of Criminal Procedure, and [a] trial de novo was conducted before the Honorable Peter J. O’Brien, Judge, Monroe County Court of Common Pleas, on July 18, 1990. (R. 7a, et. seq.) At the conclusion of the hearing Judge O’Brien entered Orders dated July 18,1990 finding the Defendants guilty of all summary offenses charged and imposing a fine of One Hundred Ten ($110.00) Dollars as to each citation. (R. 106a.)
Timely Post-Verdict Motions were filed by both Defendants-Appellants on July 25, 1990. The Court, without briefs or oral argument, issued an Opinion and Order dated August 15, 1990 denying the Post-Verdict Motions.

Appellants’ brief, at 4-7. In addition, a final order was entered and this appeal followed.

The parties raise three issues for our consideration:
I. Should the hearing Judge have rejected the testimony of Trooper Ustonofski as to his measurements of the “push rod stroke” of the trailer brakes, as (1) such measurements were not performed in compliance with applicable Federal Regulations, and (2) said measurements were not taken in accordance with the method and procedure outlined in the Trooper’s own handbook which the Trooper testified was authoritative?
II. Should the citations relating to the failure of the Appellants to maintain a “duty log” be dismissed as the statutory section set forth in such citations, 75 Pa.C.S.A. § 4107(b)(2), does not criminalize the failure to maintain a “duty log?”
III. Should three of the four citations relating to the failure to maintain a “duty log” be dismissed, as all four citations were issued for the same offense and three of such citations are not supported by applicable regulations?

Appellants’ brief, at 3.

At the onset, we note that the appellants’ second issue was not specifically preserved in post-verdict motions and therefore is deemed waived. See Commonwealth v. Cardona, 316 Pa.Super. 381, 463 A.2d 11 (1983) (all issues not raised properly in post-verdict motions are waived on appeal). See Pa.R.Crim.P. 1123; Pa.R.A.P. 302(a). However, since a discussion of this claim is necessary to resolve the appellants’ third issue, we will evaluate the appellants’ contention in this instance.

The appellants first argue that Trooper Ustonofski did not comply with Federal regulations in measuring the “push rod stroke” of the trailer brakes. They contend that failure to comply exactly with the regulations resulted in an inaccurate measurement which in turn led to the issuance of two criminal citations. Further, the appellants note that criminal regulations must be strictly construed and that, here, they were not. We agree.

Clearly, the trial court based its decision in this case on credibility determinations. See Trial court opinion, at 3-4. While this Court is cognizant of the well-established rule that the trial court enjoys broad discretion in weighing the witnesses’ testimony, this appeal does not ask us to reassess credibility determinations. Rather, we are called upon to resolve a question of law.

We have conducted a thorough review of the record in this case and we have evaluated the applicable law. It is evident that the inspecting trooper did not measure the trailer brakes in accordance with the pertinent Federal regulations. Instead, the trooper used his own methods, both to release the braking system and to measure the push rod stroke. Although the trooper testified that the procedures which he employed were acceptable (R. 18a), we cannot be sure that his actions did not affect the accuracy of the measurements. See R. 19a-20a (discussing “maximum stroke”); 49a-51a; 98a. Finding that the record provides inadequate support for the appellants’ conviction, we must vacate the judgments of sentence as they relate to this issue.

The first citation issued to the appellants indicated that the trailer brakes were out of adjustment in violation of 75 Pa.C.S.A. § 4107(b)(2) and 49 C.F.R. § 396.3. 49 C.F.R. § 396.3(a)(1) provides:

(a) General—Every motor carrier shall systematically inspect, repair, and maintain, or cause to be systematically inspected, repaired, and maintained, all motor vehicles subject to its control.
(1) Parts and accessories shall be in safe and proper operating condition at all times. These include those specified in Part 393 of this subchapter and any additional parts and accessories which may affect safety of operation, including but not limited to, frame and frame assemblies, suspension systems, axles and attaching parts, wheels and rims, and steering systems.

Appendix G to subchapter B of 49 C.F.R. § 396 is titled “Minimum Periodic Inspection Standards” and provides in part:

(5) Readjustment limits. The maximum stroke at which brakes should be readjusted is given below. Any brake lk" or more past the readjustment limit or any two brakes less than lk" beyond the readjustment limit shall be cause for rejection. Stroke shall be measured with engine off and reservoir pressure of 80 to 90 psi with brakes fully applied. (Emphasis added).

Id. at l.a.(5).

Trooper Ustonofski testified repeatedly that the reservoir pressure was charged to 110 psi at the time he measured the push rod stroke. R. 18a-19a; 43a-44a; 46a. As we have stated previously, the record is devoid of indication that this derogation was harmless. Thus, we must conclude that the trooper’s failure to comply with the above requirement may have resulted in an incorrect reading, in which case a criminal citation may have been issued improperly.

Also, Trooper Ustonofski testified that he inspected the trailer pursuant to the Uniform Driver /Vehicle Inspection Manual, which provides in pertinent part:

Cam Brakes. With the brakes applied by a full pressure application, measure from the face of the brake chamber to a mark made on the brake chamber push rod when the brakes were released. (Emphasis added).

The trooper indicated that he charged the air system with a full pressure application of 110 psi (R. 46a-47a) and released the brakes. R. 15a, 16a, 18a. See also R. 53a-54a, 92a. However, he also stated that he did not make any marks on the brake chamber push rod when he calculated the measurements. R. 89a-90a. Although the appellants’ expert witness stated that- there is no “correct” way to measure the push rod stroke and that not everyone “marks” the push rod (R. 80a, 82a), we cannot simply dismiss the trooper’s own testimony that he did not follow, with exactitude, the directions in his manual in this situation. Absent overwhelming evidence to the contrary, we must conclude that where criminal citations were issued for brake violations amounting to between Vs" and V2" the trooper’s measurements should have been in direct conformity to the above rules.

This is not to undermine the importance of vehicle safety laws. Rather, in this particular case, it appears that the directions were unambiguous and required that a mark be made on the brake chamber push rod for purposes of accurate measurement. As the appellants aptly note, “[t]he failure of the Trooper to comply with regulations in performing the measurements is crucial, because the slightest error in performing the measurements would cause the vehicle to be “out of service” under the Federal regulations.” Appellants’ brief, at 14.

We are also persuaded by the appellants’ argument that criminal provisions must be strictly construed. Commonwealth v. Wooten, 519 Pa. 45, 545 A.2d 876 (1988); Commonwealth v. Stewart, 374 Pa.Super. 479, 543 A.2d 572 (1988); Commonwealth v. Godsey, 342 Pa.Super. 24, 492 A.2d 44 (1985) (any doubt in construing a penal statute must be resolved in favor of the accused); Commonwealth v. Cluck, 252 Pa.Super. 228, 381 A.2d 472 (1977). See also 1 Pa.C.S.A. § 1928(b)(1). The record reveals that the trooper did not strictly comply with either the Federal regulations or his handbook. During the trial, he indicated that he relied on his own experience and on the fact that he needed to release the brakes while guarding his own safety. R. 18a, 46a. The trial court believed the trooper’s testimony to the effect that he conducted himself properly and that he interpreted the applicable provisions reasonably. While we do not dispute that any of this is true, we are nonetheless asked to decide a narrow issue on appeal. In light of the fact that the pertinent sections before us are specific and clear in their mandates, along with the fact that the appellants raise the issues directly, we hold that the trooper’s noncompliance with the applicable provisions was material. The criminal citations upon which the appellants were convicted were premised on flawed tests. Thus, the convictions cannot stand.

The appellants next challenge their convictions for failing to maintain a duty log. First, they argue that duty logs are not equipment within the meaning of 75 Pa.C.S.A. § 4107(b)(2). While this may be true, § 4107(b)(2) provides that it is unlawful for any person to “[ojperate, or cause or permit another person to operate, on any highway in this Commonwealth any vehicle or combination which is not equipped as required under this part or under department regulations or which is otherwise in an unsafe condition or in violation of department regulations." (Emphasis added). Since the regulations clearly contemplated the necessity of duty logs, we must assume that the legislature intended to include them in this section. 49 C.F.R. § 395.8.

Each appellant received two citations for the driver’s failure to present his duty log to Trooper Ustonofski. Although the driver testified that he covered the victims’ bodies with his coat; that his coat was removed with the baby; that the log book was in his coat pocket at the time; and that he never retrieved his coat after the accident, the trial court rejected his testimony. R. 63a-64a, 66a-67a. This, it was free to do. Trooper Ustonofski testified that the driver reported that the owner did not require him to keep a log book. R. 96a.

Each appellant was cited for a violation of 49 C.F.R. § 395.8, which provides in relevant part:

(a) Every motor carrier shall require every driver used by the motor carrier to record his/her duty status for each 24-hour period using the methods prescribed in either paragraphs (a)(1) or (2) of this section.

The appellants argue that this provision applies only to the motor carrier and not to the driver. We disagree. Paragraph (1), referred to in section (a), above, provides:

Every driver who operates a commercial motor vehicle shall record his/her duty status, in duplicate, for each 24-hour period____

(Emphasis added). Clearly, a driver may be charged with a violation of the above provision. More pointedly, the section is titled “Driver’s record of duty status.” Citations to both appellants were rightly issued.

Both appellants received citations for violating 49 C.F.R. § 395.8(k)(3), which provides:

(k) Retention of driver’s record of duty status. (3) The driver shall retain a copy of each record of duty status for the previous 7 consecutive days which shall be in his/her possession and available for inspection while on duty.

(Emphasis added). Here, we agree with the appellants that the owner cannot be cited for a violation of this section because, by its clear language, the terms of this regulation apply to the driver of the vehicle. See also R. 37a. Thus, we vacate the judgment of sentence against the trailer owner, Donald Richards, on this count.

For the foregoing reasons, we affirm in part and reverse and vacate in part.

Affirmed in part and reversed and vacated in part consistent with this Opinion.

      . Although it is not material to our discussion, we note that Cravens testified that he was travelling northbound. R. 61a.

      . Commonwealth v. Garcia, 370 Pa.Super. 132, 535 A.2d 1186 (1988).

      . The Pennsylvania Department of Transportation has promulgated regulations pertaining to vehicle inspection, repair and maintenance. These regulations adopt many of the criteria set forth by the Federal Highway Administration. See 75 Pa.C.S.A. § 4101. See 49 C.F.R. § 396. See R. 34a, 50a.

      . Cf. R. 18a (the trooper stated that in his opinion, the psi did not affect the brake inspection). See R. 49a-51a (the record indicates that the violation pertaining to the brakes related solely to the distance of the push rod stroke). See 49 C.F.R. § 396.3.

      . The allowable maximum push rod stroke for the trailer was two inches. The measurement of the push rod stroke is the difference between the location of the push rod when the brakes are applied and when the brakes are released. When the trooper performed the test, he was required to measure the push rod in two positions and then calculate the difference to arrive at a figure. He stated, "[w]e put a ruler against a firm, immovable part near the brake chamber, and the brakes are applied, and the ruler measures the amount of push-rod travel. The push-rod measures the length of the chamber connected to the slack adjuster when the brake bottoms out in the drums. We measure that measurement.” The trooper’s conclusion was as follows. "On the trailer, the right front axle was two and one-eighth inches; the right rear was two and a quarter inches; the left front axle was two and a quarter inches; and the left rear was two and a half.” R. at 21a. See also id. at 20a.

      . The trooper testified that he only recorded his final figures. He did not make any additional notes regarding his computations and could not testify as to the original measurements (before he calculated the differences) during cross-examination at trial. R. 38a-41a.

      . See also R. 48a.

      . We treat these provisions separately as they are specifically delineated in the regulations.


source: Caselaw Access Project

author: HUDOCK, Judge:

license: Public Domain

text:
    593 A.2d 1285
    William BEACH, Appellant, v. BURNS INTERNATIONAL SECURITY SERVICES, Appellee.
    Superior Court of Pennsylvania.
    Argued June 5, 1991.
    Filed July 3, 1991.

      Barbara E. Holmes, Pittsburgh, for appellant.
    Susan DeWalt, Pittsburgh, for appellee.
    Before OLSZEWSKI, HUDOCK and HOFFMAN, JJ.
   HUDOCK, Judge:

This is an appeal following the grant of summary judgment by the trial court. Appellant (Beach) filed a complaint alleging wrongful discharge by Appellee (Burns) for Beach’s failure to sign a waiver of jury trial form as part of Beach’s orientation materials. Burns filed preliminary objections claiming that Beach failed to state a cause of action upon which relief could be granted. The trial court dismissed the preliminary objections holding that because the Waiver of Jury Form was given to Beach after he was hired, that Beach did state a cause of action. Burns filed an answer and new matter and conducted discovery. Following this, Burns moved for summary judgment. The trial court granted summary judgment for Burns holding that the Waiver of Jury Form was, in fact, presented to Beach with the orientation materials and, therefore, Beach has failed to state a cause of action. We affirm.

On January 5, 1989, Beach attended an orientation meeting where he received a packet of forms including the Waiver of Jury Form in question here. The form required that all employment-related disputes be settled without either party resorting to a jury trial. Beach questioned Burns’ duty commander, Sayers, about the form. Beach objected to signing the form. Sayers told Beach he could consult with an attorney about the form. Four days later, one of Burns’ supervisors, Caldwell, met with Beach and indicated that Beach could consult an attorney, but failure to sign the form would result in Beach’s termination since signing the form was a condition of employment. On January 19, 1989, Beach told Sayers he would not sign the form, and Beach was terminated by Burns that day. Beach raises the following issues in his appeal:

1. Whether the lower court erred in its grant of summary judgment, where conflicting evidence as to a material fact exists on the record and the court exceeded its scope of review in granting the Motion.
2. Whether it offends public policy to enforce an individual’s termination from employment for refusing to sign a Waiver of Jury Trial form.

(Appellant’s Brief at p. 3).

When reviewing the grant or denial of a motion for summary judgment, an appellate court must accept as true all well-pleaded facts in the non-moving party’s pleadings, depositions, answers to interrogatories and admissions on file, giving the moving party the benefit of all reasonable inferences to be drawn therefrom. To uphold summary judgment, there must be not only an absence of genuine issues of fact, but also entitlement of judgment as a matter of law. Rossi v. Pennsylvania State University, 340 Pa.Super. 39, 489 A.2d 828 (1988).

Beach argues that he was not informed at the time he began his work with Burns that executing the Waiver of Jury Form was a condition of employment. Beach argues that because of this a material fact exists that would preclude summary judgment as a matter of law. We disagree.

A material fact is one which affects the outcome of the case. Beach argues that he did not know that executing the Waiver of Jury Form was a condition of employment. Yet the trial court found that Beach had told his wife on the night he began work, that he might be discharged if he did not sign the form, but was willing to accept that risk.

Beach also argues that he was permitted to begin work without signing the form. Beach contends that Burns allowed him to continue to work, and Burns’ actions created an expectation in Beach that he could continue to work despite his failure to sign the form. This contention attempts to raise an issue of detrimental reliance by Beach on Burns’ failure to terminate him at once. In Paul v. Lankenau Hospital, 524 Pa. 90, 569 A.2d 346 (1990), the Pennsylvania Supreme Court held that equitable estoppel is not an exception to the at-will employment doctrine.

Moreover, we note that the record indicates that Beach was told he could seek advice of counsel concerning the form. Beach did take advantage of that opportunity between the time he began work and when he was finally terminated. We note that once Beach notified Burns that he would not sign the form, Burns immediately terminated Beach. The fact that Beach was permitted to continue his duties in the interim can not now be used against Burns for their willingness to await Beach’s contact with his attorney.

Having found the absence of material fact, next we must determine whether Burns is entitled to summary judgment as a matter of law. It is clear in the present case that Beach was an at-will employee without benefit of an employment contract. He may therefore, be terminated at any time and for any reason or no reason at all unless some clear public policy of the Commonwealth is violated. Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974); Paul v. Lankenau Hospital, supra. As the trial court stated in its opinion:

Relying on Geary, Pennsylvania courts and federal courts, when applying Pennsylvania Law to employment termination cases, on occasion have found a public policy violated and thus have recognized a cause of action when an employee was discharged: for missing work to serve on a jury, Reuther v. Fowler and Williams, Inc., 255 Pa.Super. 28, 386 A.2d 119 (1978)____ Thus, the question we must answer is: was it incompatible with the clear public policy of the Commonwealth of Pennsylvania regarding the right to a jury trial for the [Burns] to hire [Beach] and then to subsequently terminate [Beach] for his subsequent refusal to sign the Waiver of Jury Form.

(Trial Court Opinion at 7-8).

Although an individual has a right to trial by jury, the Commonwealth of Pennsylvania, by statute, has provided that trial by jury may be waived. 42 Pa.S.C. § 5104(a). In fact, a trial by jury will be deemed waived unless it is affirmatively requested. Pa.R.C.P., Rule 1007.1, 42 Pa. C.S.A.; See also Rodney v. Wise, 347 Pa.Super. 537, 500 A.2d 1187 (1985). Our courts have recognized the need to alleviate the congestion in the courts through the use of alternate dispute resolution mechanisms. One such mechanism is arbitration. As the Supreme Court held in 1974:

It is now recognized in this Commonwealth that the enforcement of agreements by the parties to submit future disputes, that may arise under their agreement, to a tribunal other than the courts is not against public policy and is consistent with the concept of the court’s role in dealing with the contractual relationships of individuals.
'Settlement of disputes by arbitration are [sic] no longer deemed contrary to public policy. In fact, our statutes encourage arbitration and with our dockets crowded and in some jurisdictions congested, arbitration is favored by the courts.’ Mendelson v. Shrager, 432 Pa. 383, 385, 248 A.2d 234, 235 (1968).

Borough of Ambridge Water Authority v. Columbia, 458 Pa. 546, 548-49, 328 A.2d 498, 500 (1974). The Waiver of Jury Form in question here does not go so far as to resolve disputes outside of the court system. It calls for a trial conducted in court but with a judge as trier of fact rather than a jury. We have been unable to locate a case in our Commonwealth which has dealt with this precise issue.

We find, however, that a waiver of jury trial in favor of a bench trial does not violate a public policy in this Commonwealth. We agree with the trial court’s conclusion that: “If the parties are free to completely waive their right to a trial in favor of arbitration, then surely they must be allowed to waive only the right of a trial by jury in favor of an expedited and less costly proceeding before a judge.” (Trial Court Opinion at 12).

We do not find the existence of any material fact, nor do we find any exception to the at-will employment doctrine, such as a violation of public policy which would preclude Burns from a summary judgment as a matter of law. We therefore affirm the judgment of the trial court.


author: HUDOCK, Judge: HOFFMAN, Judge,

text:
    593 A.2d 1288
    COMMONWEALTH of Pennsylvania, Appellee, v. James J. PRICE, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 5, 1991.
    Filed July 3, 1991.

      Candace Cain, Pittsburgh, for appellant.
    Kevin F. McCarthy, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before OLSZEWSKI, HUDOCK and HOFFMAN, JJ.
   HUDOCK, Judge:

This is an appeal from the judgment of sentence imposed upon Appellant after he was found guilty of driving under the influence of alcohol. Timely filed post-verdict motions were denied by the trial court, and Appellant was sentenced to a fine and a term of imprisonment of between thirty days and six months. This direct appeal followed. We reverse.

The conviction is the result of the arrest of Appellant on March 23, 1989. On that day, Special Agent Mark Sites of the Federal Bureau of Investigation (FBI) was travelling in an unmarked FBI vehicle on Balf Avenue in Bellevue, Allegheny County. Sites observed a vehicle approaching a stop sign at the intersection of Balf and Orchard. The vehicle did not slow at the stop sign, but instead made a wide right hard turn, missing Agent Sites’ automobile by approximately one and one-half feet. The turning automobile swerved halfway into the on-coming lane and made a right-hand turn onto Balf Avenue.

Fearing that the driver was perhaps in distress or a danger to others, Agent Sites used his lights and siren to pull Appellant over. Agent Sites identified himself to Appellant as an FBI agent and showed Appellant his badge. Agent Sites noticed the odor of alcohol on Appellant. Agent Sites then decided that the matter was beyond his jurisdiction and requested a neighbor to call the local police for him.

Agent Sites told Appellant not to move and to remain seated in the automobile. Agent Sites never told Appellant he was under arrest. Appellant followed Agent Sites’ directions. Agent Sites later testified that he would have stopped Appellant had he tried to leave the scene. After the local police arrived, Agent Sites briefed them on what had occurred and prepared, at their request, a report on the incident.

Appellant argues that the trial court abused its discretion when it denied his motion to quash the criminal information and suppress the evidence. He contends that the information should have been quashed since an FBI agent lacks the authority to stop a person for a motor vehicle violation and then arrest that person for driving under the influence. In support of this claim, Appellant states that since Agent Sites had no reason to believe a felony was being committed, and since, by statute, citizen’s arrests for summary offenses are disallowed, Agent Sites’ actions amounted to an illegal arrest. As such, Appellant further contends, all evidence from that arrest was tainted and should have been suppressed by the trial court.

Although not cited by Appellant, Commonwealth v. Leet, 401 Pa.Super. 490, 585 A.2d 1033 (1991) supports Appellant’s arguments. In Leet, a deputy sheriff, in a marked sheriff’s vehicle, observed a vehicle cross the double yellow lines and pass several vehicles. The deputy sheriff pulled the vehicle over, observed a beer can in the front seat, and performed a field sobriety test on the driver. The driver passed the field sobriety test but could not produce a driver’s license. A call by the deputy sheriff revealed that the license was under suspension. A police officer arrived at the scene, where, subsequently, marijuana and methamphetamine were found in the vehicle. The police officer cited the driver for driving with an expired license, driving with an open can of beer, and passing in a no-passing zone. The driver was also charged with possession of a controlled substance and possession with intent to deliver.

The trial court, holding that deputy sheriffs did not have authority to make warrantless arrests for Vehicle Code violations, suppressed the evidence. The Superior Court affirmed, noting that

[bjecause [the deputy sheriff] did not have authority to arrest Leet for an alleged violation of the Vehicle Code, suppression of evidence seized as a result of his unlawful arrest was an appropriate remedy. To hold otherwise would be to vest in deputy sheriffs by indirection the right to effect warrantless arrests for Motor Vehicle Code violations by holding motorists at gunpoint or otherwise until a “police officer” arrives on the scene to make a lawful arrest.

Commonwealth v. Leet, 401 Pa.Superior Ct. at 499, 585 A.2d at 1038.

It is difficult to discern why an FBI agent, in a fact situation very similar to that of Leet, should be empowered to do what a deputy sheriff was prohibited from doing in Leet. Indeed, Appellant notes in his brief that “there may be even stronger public policy reasons for not allowing Federal Agents to make non-felony arrests outside their jurisdiction.” (Appellant’s brief at .p. 12).

The Commonwealth, however, argues that Leet should not control because it conflicts with a decision of the Supreme Court of Pennsylvania, Commonwealth v. Galloway, 525 Pa. 12, 574 A.2d 1045 (1990). In Galloway, a special agent of the Pennsylvania Attorney General’s Office pulled over a truck that had swerved erratically near the agent’s unmarked vehicle. After using his siren and red light to pull over the vehicle, the agent ordered the driver out of the cab with a bullhorn, showed the driver his badge, told him he was under arrest, and gave him some manner of Miranda warning. The agent radioed the State Police who then took the driver into custody, gave him a breathalyzer test, and charged him with driving under the influence. Id., 525 Pa. at 13, 574 A.2d at 1046. The trial court quashed the information on the grounds that the special agent was not authorized by statute to make such arrests, and, therefore, the arrest was illegal. The Superior Court affirmed.

The Supreme Court reversed the decision, however. The lead opinion by Justice Papadakos, joined by only two other justices, concluded that although the arrest by the special agent was illegal (since the agent was not authorized to make such arrests), the subsequent arrest by a state police trooper was legal. The information on the erratic driving given to police by the special agent, the information furnished by a second witness, and the presence of an odor of alcohol, were “more than enough to establish probable cause.” Id., 525 Pa. at 20, 574 A.2d at 1049. Thus, the validity of the second arrest was not affected by the illegality of the initial stop.

The difficulty with Galloway is that it is of limited precedential value; only three of the six justices who heard the case held that the second arrest by the state police trooper was valid. Two justices dissented, and another, Chief Justice Nix, concurred with the result but disagreed with the reasoning of the opinion. Chief Justice Nix believed that the initial arrest by the special agent was a valid citizen’s arrest. “In this case, the agent did what he had a right to do as an ordinary citizen, which he indeed was.” Id., 525 Pa. at 21, 574 A.2d at 1050 (Nix, Chief Justice, concurring in result). Hence, his concurrence with the result. But he rejected the plurality’s view that even if the initial arrest was illegal, the subsequent arrest by the state police trooper could be legal.

If it is accepted that the detention of appellee [defendant] by the Agent, which was made under the color of law, was an illegal one, it would necessarily infect the subsequent “warrantless arrest” of the trooper.

Id.

The dissent viewed the initial arrest as illegal and the subsequent arrest as illegal also, the illegality of the second arrest stemming from that of the first arrest.

Hence, five justices thought the initial arrest by the special agent to be illegal, three justices thought such an arrest could lead to a legitimate subsequent arrest by a police officer, and three justices thought that an illegal arrest could not be subsequently validated. Galloway, therefore, can only be said to stand unambiguously for one proposition; that warrantless arrests for summary motor vehicle offenses by law enforcement officers not authorized by law to make such arrests are illegal. Leet, on the other hand, clearly holds that such an illegal arrest will defeat any subsequent arrest by a duly authorized police officer. Commonwealth v. Leet, supra, 401 Pa.Super. at 498-499, 585 A.2d at 1038.

Galloway and Leet, therefore, mandate that in the present case, the initial arrest by FBI Agent Sites was illegal, and that the subsequent arrest by the local police was tainted by the illegality of the first arrest.

The Commonwealth also argues that even if the subsequent arrest by the local police is found to have been tainted, and therefore made illegal, by the initial arrest, the application of the exclusionary rule is inappropriate; since Appellant’s fundamental constitutional rights were not violated, Appellee argues, the exclusionary rule is a disproportionately severe remedy. Appellee cites several Pennsylvania appellate decisions in support of this claim.

In Commonwealth v. Corley, 507 Pa. 540, 491 A.2d 829 (1985), a private security guard detained and searched a robbery and shooting suspect. The Supreme Court of Pennsylvania affirmed the suspect’s conviction, holding that the security guard’s actions amounted to a citizen’s arrest and that the exclusionary rule was an inappropriate remedy for such action. “Because the exclusionary rule is designed ‘to prevent, not to repair’ and is aimed at ‘official misconduct’, it would be a wholly improper extension to apply it here, as a remedy for private conduct.” Id., 507 Pa. at 545, 491 A.2d at 834. However, since the security guard who made the initial arrest was not a public law enforcement official, but rather a privately retained security guard, the holding in Corley does not control a situation where, as here, the initial arrest was made by a public law enforcement official. An arrest by a public law enforcement official—like the FBI agent here—would have to be deemed state (or government) action, especially when, as in this case, the FBI agent used his badge and siren to effect the arrest.

The Commonwealth also cites Commonwealth v. Mason, 507 Pa. 396, 490 A.2d 421 (1985), for the proposition that a violation of law that does not affect fundamental constitutional rights does not call for the suppression of evidence. In Mason, a technical violation of the Pennsylvania Rules of Criminal Procedure relating to the issuance and execution of search warrants was held not to merit the application of the exclusionary rule. In that case, however, our Supreme Court found that there was no violation, technical or otherwise, of the rules of criminal procedure, and that absent any such violation, exclusion was of course inappropriate. The present case is distinguishable in that the FBI agent’s arrest of Appellant was clearly illegal under both Leet and Galloway.

The Commonwealth contends, nevertheless, that Appellant’s fundamental constitutional rights were not violated by the illegal arrest by the FBI agent, and, therefore, the application of the exclusionary rule would be inappropriate. For this claim, Appellee relies principally on Commonwealth v. Goodman, 347 Pa.Super. 403, 500 A.2d 1117 (1985).

In Goodman the State Attorney General was found to have initiated an investigation that was beyond the scope of his statutory authority. An en banc panel of this Court held that although the Attorney General’s investigation of Goodman was not authorized by the Commonwealth Attorneys Act, the violation of that Act did not require the suppression of evidence seized pursuant to the Attorney General’s investigation. The Court pointed out that the warrant used to search appellee Goodman’s home was supported by probable cause and was issued by a neutral and disinterested judicial officer. The warrant was therefore valid in all respects save one; it was requested by the wrong officer of the Commonwealth—the Attorney General instead of the county district attorney. Such a violation of the Commonwealth Attorneys Act, the court concluded, did not violate appellee Goodman’s constitutional right to be free from unreasonable searches and seizures. Id., 347 Pa.Superior Ct. at 430, 500 A.2d at 1131.

We believe that Goodman is distinguishable from the case before us. The violation of the Commonwealth Attorneys Act in Goodman was largely technical; under a slightly different set of facts, the Attorney General would have been authorized to undertake the investigation and request the search warrant, and under the actual facts another agent of the Commonwealth, the county district attorney, was authorized to investigate Goodman. In the present case, however, Agent Sites’ arrest of Appellant for an offense under the Motor Vehicle Code would have been lawful under no set of circumstances; only uniformed police officers are authorized to make warrantless arrests for such violations under 75 Pa.C.S. § 6304. We must, therefore, view Agent Sites’ arrest of Appellant as a substantive, and not a technical, violation of that statute.

Furthermore, Goodman involved a situation in which the state acted with a warrant that was backed by probable cause and issued by a neutral and detached judicial officer, while the case before us concerns a warrantless arrest. Since the existence of a valid warrant was crucial to the court’s reasoning in Goodman, we believe that that holding is not dispositive of a situation where, as here, there was a warrantless arrest. Id., 347 Pa.Superior Ct. at 429-430, 500 A.2d at 1131. We must therefore conclude that the exclusionary rule is applicable to the present case; all evidence seized as a result of the illegal arrest should have been suppressed by the trial court.

The judgment of sentence is reversed and the matter is remanded for proceedings consistent with this opinion. Jurisdiction relinquished.

HOFFMAN, J., joins and also files a concurring statement.

HOFFMAN, Judge,

concurring.

I write separately only to address further the Supreme Court decision in Commonwealth v. Galloway. In my view, Galloway is inapposite for an additional reason. The Galloway Court held that it was error to quash an information based upon an illegal arrest by a special agent of the Attorney General’s Office, because a later arrest by a State Trooper was valid. I see this question—i.e., whether a prosecution is defective from its inception because of an unlawful arrest—as being distinguishable from the more limited question of whether certain evidence secured as a result of the illegal arrest should be suppressed. And, on the latter point, I agree with the Majority that there is no question that the appropriate legal remedy for the initial illegal arrest is suppression of the fruits of the illegality. See Commonwealth v. Leet, 401 Pa.Super. 490, 585 A.2d 1033 (1991); Commonwealth v. Palm, 315 Pa.Super. 377, 462 A.2d 243 (1983), allocatur denied; Commonwealth v. Eshelman, 236 Pa.Super. 223, 345 A.2d 286 (1975) (HOFFMAN, J., dissenting), rev’d 477 Pa. 93, 383 A.2d 838 (1978). See generally, Comment, Arrest and Search Powers of Special Police in Pennsylvania, 59 Temp.L.Q. 497 (1986). Having made this comment, I join wholeheartedly in the excellent majority Opinion.

      . We note that the remedy for an illegal arrest is the suppression of the evidence obtained by the illegal arrest, and not, as Appellant argues, the quashing of the information. "[A] court cannot quash an information merely because the court believes that some or all of the Commonwealth’s evidence has been obtained illegally.” Commonwealth v. McKeirnan, 337 Pa.Super. 403, 407, 487 A.2d 7, 10 (1985).

      . FBI agents are authorized by 18 U.S.C. § 3052 to make warrantless arrests if they have reasonable grounds to believe that the person to be arrested has committed or is committing any felony cognizable under the laws of the United States.

      . In its brief the Commonwealth concedes that if Leet is found controlling, Appellant’s conviction must be reversed. But the Commonwealth cannot really mean this, since it goes on to argue that even if Leet controls, the exclusion of evidence was not called for, and that, therefore, the judgment of the trial court was correct.

      . The majority properly recognizes this distinction, as it summarily rejects appellant’s argument that the court below should have quashed the information against him. See at 169 n. 1.


author: BROSKY, Judge.

text:
    593 A.2d 1292
    Joseph GARZONE and Irene Garzone and Lawrence Garzone, Husband and Wife, Appellants, v. John KELLY and Hertz Penske Trucking Company and Louis Cole. Joseph GARZONE and Irene Garzone and Lawrence Garzone, Husband and Wife, v. John KELLY and Hertz Penske Trucking Company and Louis Cole. Appeal of Louis COLE.
    Superior Court of Pennsylvania.
    Submitted April 3, 1991.
    Filed July 3, 1991.

      Peter McNamara, Philadelphia, for appellants in No. 2077.
    Eugene A. Luciw, Philadelphia, for appellant in No. 2176 and for Louis Cole, appellee in No. 2077.
    Stuart Fiel, Philadelphia, for Garzone, appellees in No. 2176.
    James J. Hollowell, Philadelphia, for Hertz Penske, appellee.
    Before WIEAND, OLSZEWSKI and BROSKY, JJ.
   BROSKY, Judge.

These appeals are from the order of the trial court which transferred appellants’ cause of action against appellee to Bucks County. Appellants present two questions for review: (1) whether the trial court erred in transferring the action to Bucks County; and (2) whether appellee’s cross-appeal should be quashed. In addition, appellee raises a question as to whether the trial court’s order transferring the action to Bucks County should be affirmed, and if not, whether the action against appellee should be dismissed for lack of personal jurisdiction or, in the alternative, whether the ease should be remanded to the lower court for a determination as to whether Philadelphia County can properly exercise personal jurisdiction over appellee. For the reasons set forth below, we reverse the order of the trial court and remand for further proceedings consistent with the following discussion.

The relevant facts are as follows. On December 20,1988, Joseph Garzone, John Kelly and Louis Cole were attempting to drive across the Ben Franklin Bridge, which connects Camden, New Jersey with the city of Philadelphia, Pennsylvania. After leaving the toll booth area, the men drove their respective vehicles onto the entrance ramp to the bridge where their vehicles collided. Although the cause of the accident is in dispute, it appears that the vehicles operated by Kelly and Cole first came into contact, thereby causing their vehicles to lose control and strike the automobile occupied by Joseph and Irene Garzone, who was a passenger therein. As a result of the accident, appellants, Joseph Garzone, Irene Garzone and Lawrence Garzone, the husband of Irene Garzone, instituted suit in Philadelphia County against John Kelly, his employer, Penske Truck Leasing L.P., and Louis Cole, appellee. All of the parties are residents of or conduct business in Philadelphia, Pennsylvania, with the exception of appellee, who is a resident of New Jersey.

Appellee filed preliminary objections to the complaint in which he questioned Pennsylvania’s ability to assert jurisdiction over his person. In ruling on the objections, the trial court concluded that Pennsylvania’s exercise of jurisdiction over appellee would not be unreasonable, but without further explanation, ordered appellants’ cause of action against appellee transferred to Bucks County. Appellants thereafter filed this timely appeal, docketed at No. 2077 Philadelphia 1990 and appellee filed a timely cross-appeal, docketed at No. 2176 Philadelphia 1990. These appeals have been consolidated for appellate review.

Before addressing the merits of these appeals, we must first ascertain whether the order entered by the trial court is appealable. In their Statements of Jurisdiction, the parties aver that the order entered by the trial court is appealable under Pa.R.A.P., Rule 311(c), 42 Pa.C.S.A. See Appellants’ Brief at 1, and Appellee’s Brief at l. This rule provides that “[a]n appeal may be taken as of right from an order in a civil action or proceeding changing venue, transferring the matter to another court of coordinate jurisdiction, or declining to proceed in the matter on the basis of forum non conveniens or analogous principles.” However, our review of the certified record, the briefs submitted by the parties and the trial court’s opinion reveals that this case involves a question of jurisdiction, not venue. We must therefore turn to the appropriate rule relating to the appeal of an order sustaining jurisdiction. The rule provides that:

[a]n appeal may be taken as of right from an order in a civil action or proceeding sustaining ... jurisdiction over the person ... if: (1) the plaintiff, petitioner or other party benefitting from the order files of record within ten days after the entry of the order an election that the order shall be deemed final; or (2) the court states in the order that a substantial issue of ... jurisdiction is presented.

Pa.R.A.P., Rule 311(b)(l)-(b)(2), 42 Pa.C.S.A.

In applying this rule, we observe that neither appellants nor appellee filed an election to have the order made final. Further, the order entered by the trial court does not contain a statement indicating that there is a substantial issue as to whether jurisdiction is proper. We therefore conclude that neither of the parties have complied with the requisites set forth in Rule 311(b). Under these circumstances, we would ordinarily quash the appeal. See Okkerse v. Howe, 521 Pa. 509, 516, 556 A.2d 827, 831 (1989) (in which the Supreme Court observed that where neither of the requisites of Rule 311(b) have been met, the appeal is interlocutory and must be quashed).

Despite these procedural defects, we nevertheless decline to quash the appeal in this instance because it appears that the trial court is responsible for the parties’ failure to identify the correct basis of jurisdiction in their briefs. In this case, the trial court entered an order which transferred the action to Bucks County. See Order of Trial Court, dated June 26, 1990. As stated above, appellee only raised a question of jurisdiction and not venue. Thus, the trial court could only have entered an order indicating whether appellee’s preliminary objections were granted or denied and whether Pennsylvania could or could not assert personal jurisdiction over appellee. Had such an order been entered, the parties could then have taken the necessary steps to perfect appellate jurisdiction pursuant to Rule 311(b). Because the trial court entered an order which purported to change the venue of the action and did not address the question of jurisdiction, the parties had no choice but to appeal the order under Rule 311(c). Under these circumstances, we will exercise our discretion to excuse the parties’ failure to comply with the procedural rules and proceed to address the merits of the issues raised by the parties. See Pa.R.A.P., Rule 105(a) (which permits this court to disregard the requirements or provisions of any of the appellate procedural rules in the interest of expediting decision or for other good cause shown).

In examining the trial court’s decision to uphold Pennsylvania’s exercise of personal jurisdiction over appellee, we are guided by the following scope of review:

[WJhen preliminary objections, if sustained, would result in the dismissal of an action, such objections should be sustained only in cases which are clear and free from doubt. Moreover, when deciding a motion to dismiss for lack of personal jurisdiction^] the court must consider the evidence in the light most favorable to the non-moving party.

Kenneth H. Oaks, Ltd. v. Josephson, 390 Pa.Super. 103, 105, 568 A.2d 215, 216 (1989) (citations omitted). We shall evaluate the trial court’s decision and the arguments raised by the parties in accordance with this standard.

In determining whether Pennsylvania may assert in personam jurisdiction over appellee, this court has observed that

[jurisdiction over a nonresident defendant may be based either upon the specific acts of the defendant which gave rise to the cause of action, or upon the defendant’s general activity within the forum state. In order for a Pennsylvania court to assert specific jurisdiction, the cause of action must arise out of the defendant’s activities within the Commonwealth. General jurisdiction, on the other hand, exists regardless of whether the cause of action is related to the defendant’s activities in Pennsylvania, as long as the [corporate] defendant’s activities in this Commonwealth are “continuous and substantial.”

Derman v. Wilair Services, Inc., 404 Pa.Super. 136, 141, 590 A.2d 317, 319-20 (1991) (opinion by Hoffman, J.), quoting Skinner v. Flymo, Inc., 351 Pa.Super. 234, 239-240, 505 A.2d 616, 619 (1986) (citations omitted) (emphasis in original). See also, 42 Pa.C.S.A. § 5301(a)-(b) (discussing the requisites of general jurisdiction) and § 5322(a)-(c) (identifying the requirements for specific jurisdiction). We will separately address each type of jurisdiction as it applies to the facts of this case.

In order for general in personam jurisdiction to be exercised,

the existence of any of the following relationships between a person and this Commonwealth shall constitute a sufficient basis of jurisdiction to enable the tribunals of this Commonwealth to exercise general personal jurisdiction over such person, or his personal representative in the case of an individual, and to enable such tribunals to render personal orders against such person or representative:
(1) Individuals.—
(i) Presence in this Commonwealth at the time when process is served.
(ii) Domicile in this Commonwealth at the time when process is served.
(iii) Consent, to the extent authorized by the consent.

42 Pa.C.S.A. § 5301(a)(l)(iHa)(l)(iii).

The record reveals that appellee was served at his residence in Camden, New Jersey. See Complaint, Exhibit A (receipt of service). Consequently, appellee was not present in the Commonwealth at the time process was served. Cf. Ditzler v. Kamerman, 384 Pa.Super. 184, 557 A.2d 1107 (1989) (in which this court sustained the exercise of general personal jurisdiction over a non-resident defendant under 42 Pa.C.S.A. § 5301(a)(l)(i) who was served with process in accordance with Pa.R.C.P., Rule 411 while he was present in the Commonwealth). Similarly, appellee was not domiciled in the Commonwealth at the time process was served. See Complaint, at paragraph 4 (identifying appellee as a resident of New Jersey) and Deposition of Louis Cole at 4-5 and 7 (in which appellee stated that he had lived in New Jersey throughout his entire life). Finally, there are no facts alleged in the complaint or in any of the relevant pleadings which would indicate that appellee has consented to suit in Pennsylvania. We therefore conclude that the grounds for asserting general personal jurisdiction have not been met.

Our inquiry is not at an end, as we must next ascertain whether grounds for asserting specific jurisdiction exist. Specific jurisdiction is governed by the provisions set forth in 42 Pa.C.S.A. § 5322(a). In addition to these provisions, the statute provides that “the jurisdiction of the tribunals of this Commonwealth shall extend to all persons who are not within the scope of section 5301 (relating to persons) to the fullest extent allowed under the Constitution of the United States and may be based on the most minimum contact with this Commonwealth allowed under the Constitution of the United States.” 42 Pa.C.S.A. § 5322(b). Thus, even though jurisdiction does not fall within the grounds prescribed by § 5301, specific jurisdiction over a non-resident defendant may still be obtained. However, “[w]hen jurisdiction over a person is based solely upon this section [that is, § 5322], only a cause of action or other matter arising from acts enumerated in subsection (a), or from acts forming the basis of jurisdiction under subsection (b), may be asserted against him.” 42 Pa.C.S.A. § 5322(c). Thus, the cause of action must arise out of the acts which form the basis of jurisdiction in order for specific jurisdiction to exist. See § 5322(c), Derman and Skinner, supra.

As applied to this case, the record reveals that as of the date of the accident, appellee had been continuously employed within the Commonwealth of Pennsylvania for a period in excess of one year. See Deposition of Louis Cole, at 12 and 13. Because the automobile accident did not arise out of appellee’s employment, specific jurisdiction may not be asserted under § 5322(a)(1) or (a)(2). Moreover, the accident occurred in New Jersey before the parties reached the bridge. See Deposition of Louis Cole, at 9 and Deposition of Officer Dwight Thomas, at 14-16. As a result, the harm or tortious injury which forms the basis of appellants’ cause of action did not occur within this Commonwealth. See 42 Pa.C.S.A. § 5322(a)(3). Similarly, appellee’s activities outside of the Commonwealth did not cause a harm or injury within this state. See § 5322(a)(4). See also, DeFay v. McMeekin, 352 Pa.Super. 409, 413, 508 A.2d 324, 326 (1986) (in which this court held that an accident victim’s suffering of residual harm within this state was an insufficient basis to assert specific jurisdiction over a non-resident defendant where the accident did not occur in Pennsylvania). Finally, the remaining grounds described in § 5322(a)(5)-(a)(10) do not provide a basis for asserting specific personal jurisdiction over appellee because appellants’ cause of action does not arise out of these acts, but arises out of appellants’ collision with appellee in the state of New Jersey. Because appellants’ cause of action does not arise out of any of the acts described in § 5322(a) or out of appellee’s contacts with this state the requisites for specific jurisdiction have not been met.

Having found that Pennsylvania cannot exercise jurisdiction over appellee, we must next evaluate the lower court’s decision to transfer the action to Bucks County. As discussed above, the defendants in this case neither asserted that venue in Philadelphia County was improper nor requested a transfer of the action to a more convenient forum. See note 8, supra. Further, there was no question that venue in Philadelphia County was proper. See Pa. R.C.P., Rule 1006(a)-(c) (discussing venue against individual and corporate defendants) and note 5, supra. Under these circumstances, the trial court abused its discretion in sua sponte transferring the action to Bucks County. See Penox Technologies, Inc. v. Foster Medical Corporation, 376 Pa.Super. 450, 455, 546 A.2d 114, 116 (1988) (holding that a trial court abused its discretion in transferring an action to Montgomery County for the convenience of the parties and witnesses where venue was proper in Luzerne County and none of the parties had petitioned the court to transfer the action to a more convenient forum). See also: Pa.R.C.P., Rule 1006(e), 42 Pa.C.S.A. (providing that a question of improper venue shall be raised by preliminary objection and if not so raised shall be waived) and Pa.R.C.P., Rule 1006(d)(1), 42 Pa.C.S.A. (which requires a party to petition the court for transfer where suit is commenced in a proper, but inconvenient forum). As there was no basis for transferring the action to Bucks County, the lower court’s order must be reversed and the action against defendants PTL and Kelly must be remanded to Philadelphia County.

In sum, we concluded that neither of the bases for asserting personal jurisdiction existed in this case. Appellee was not domiciled in Pennsylvania and did not consent to be sued in Pennsylvania. More importantly, appellee was not served with process in Pennsylvania, but received the complaint by mail at his New Jersey residence. Consequently, we found that none of the requirements for asserting general jurisdiction are satisfied. We made a similar determination with regard to the criteria for asserting specific jurisdiction, since the cause of action did not arise out of appellee’s contacts with this state, but arose solely out of the accident which occurred in New Jersey. As neither of the bases for exercising personal jurisdiction have been met, the trial court erred in upholding Pennsylvania’s exercise of personal jurisdiction over appellee. We also determined that the trial court abused its discretion in transferring the action to Bucks County since none of the defendants challenged Philadelphia County as a forum of improper venue or petitioned the lower court to transfer the action on grounds of forum non conveniens. Accordingly, we reverse the trial court’s order and direct the trial court to dismiss the complaint with regard to appellee; we further remand appellants’ cause of action against defendants PTL and Kelly to Philadelphia County for further proceedings.

Order reversed. Remanded for further proceedings. Jurisdiction relinquished.

      . The questions set forth in appellee’s statement of questions have been restated for ease of discussion.

      . PTL was incorrectly designated as Hertz Penske Trucking in appellants’ complaint. We observe that neither PTL nor Kelly is a party in these appeals.

      . Although a cross-appeal has been taken, we shall refer to the Garzones as appellants and Cole as appellee.

      . However, the record reveals that appellee has been continuously employed in Morrisville, Pennsylvania for the past three years. See Deposition of Louis Cole, at 6 and 12-13. Morrisville is located within Bucks County.

      . In transferring the action to Bucks County, the trial court apparently confused the concepts of jurisdiction and venue by reasoning that the exercise of jurisdiction was proper, but that the action should be tried in Bucks County, where appellee was employed. See Trial Court Opinion, dated August 15, 1990, at 2. Such reasoning is clearly erroneous.
      Jurisdiction and venue are distinct legal concepts which cannot be used interchangeably. See Purcell v. Bryn Mawr Hospital, 525 Pa. 237, 241 n. 1, 579 A.2d 1282, 1283 n. 1 (1990), citing County Construction Co. v. Livengood Construction Corp., 393 Pa. 39, 44-45, 142 A.2d 9, 13 (1958). As explained by the Supreme Court, "[v]enue is the place in which a particular action is to be brought and determined; it is a matter for the convenience of the litigants. Jurisdiction refers to the competency of a court to determine controversies of the general class to which a case presented for its consideration belongs and to bind the parties by its decision.” See Purcell, supra, quoting County Construction Co. Thus, a challenge to the jurisdiction of the trial court refers to the power of the court to hear the case and bind the litigants, whereas an objection to venue concedes that the court has the power to hear the case, but requires a determination as to whether there is a more convenient or appropriate forum in which the action should be heard.
      In applying these definitions, it is evident that the only question before the trial court was not whether the action should be heard within a particular judicial district in Pennsylvania, but whether Pennsylvania tribunals have the power to bind appellee to an adjudication conducted within this state. The resolution of this question did not mandate a transfer of the action, however. If the trial court had found that jurisdiction over appellee could not be exercised, then the trial court only had to dismiss the action with regard to appellee. As a result, appellants’ cause of action against the remaining defendants, PTL and Kelly, would then continue in Philadelphia County because neither of these parties had objected to the lawsuit. In the alternative, if the trial court had upheld jurisdiction against appellee, then suit in Philadelphia County would still have been proper. See Pa.R.C.P., Rule 1006(c), 42 Pa.C.S.A. (which provides, in relevant part, that an action to enforce a joint or joint and several liability against two or more defendants may be brought against all defendants in any county in which the venue may be laid against any one of the defendants under the general rules [Pa.R.C.P., Rule 1006(a) (venue against an individual defendant) and Rule 1006(b) (venue against a corporate defendant), 42 Pa.C.S.A.]). Because venue in Philadelphia County was proper as to defendants Kelly and PTL, the action against appellee could therefore be maintained in Philadelphia County, provided that Pennsylvania could properly exercise personal jurisdiction. In view of this analysis, it is obvious that regardless of the trial court’s resolution of the jurisdictional issue, there was no basis for transferring the action to Bucks County.

      . “Because the question of appealability concerns the jurisdiction of the appellate court, a non-waivable matter, we may raise such an issue sua sponte even where, as in the present case, the parties have not done so.” Drohan v. Sorbus, Inc., 401 Pa.Super. 29, 34, 584 A.2d 964, 966 (1990).

      . Appellee also contends that this court has jurisdiction over this appeal pursuant to Pa.R.A.P., Rule 311(b), 42 Pa.C.S.A. See Appellee’s Brief, at 1.

      . The record reveals that none of the defendants in this case questioned the venue of the action or requested a change of venue. Appellee only challenged the jurisdiction of the trial court; he did not request a change of venue. See Preliminary Objections of [Appellee] Louis Cole, at paragraph 12. Further, defendants PTL and Kelly filed an answer to the complaint and engaged in discovery with appellants.

      . Because we must first ascertain whether Pennsylvania can exercise jurisdiction over appellee, we will address this question before proceeding to review the arguments relating to the transfer of the action. However, we note that our decision to address the merits of the appeals disposes of appellants’ contention that appellee’s cross-appeal should be quashed. Further discussion of this issue is therefore unnecessary.

      . In its opinion, the trial court concluded that general personal jurisdiction existed in this case because appellee’s contacts with Pennsylvania were "continuous and substantial”. See Trial Court Opinion, dated August 15, 1990. For support, the lower court relied on the reasoning expressed in Bork v. Mills, 458 Pa. 228, 232, 329 A.2d 247, 249 (1974). Although Bork was correctly cited, the "continuous and substantial” contacts test set forth therein only applies to corporations, partnerships, limited partnerships, partnership associations, professional associations, unincorporated associations and similar entities. See 42 Pa.C.S.A. § 5301(a)(2) and (a)(3). See also, Derman v. Wilair Services, Inc., supra, 404 Pa.Super. at 148, 590 A.2d at 323; Simmers v. American Cyanamid Corp., 394 Pa.Super. 464, 474, 576 A.2d 376, 382 (1990); Skinner v. Flymo, Inc., supra, 351 Pa.Super. at 240, 505 A.2d at 619; and Slota v. The Moorings, Ltd., 343 Pa.Super. 96, 102, 494 A.2d 1, 4 (1985) (all of which discuss the "continuous and substantial” contacts requirement found in § 5301(a)(2) as it relates to corporate defendants). All of these decisions are inapposite to the facts of this case which involve an individual rather than a corporate defendant. Thus, the trial court erred in utilizing this analysis to support its conclusion.

      . As of the date of the deposition on June 1, 1990, appellee had been employed in Pennsylvania for nearly three years. See id.