author: CIRILLO, Judge: BECK, Judge,

text:
    670 A.2d 165
    Ronald A. DRAPEAU, an Individual Appellant, v. JOY TECHNOLOGIES, INC., a Delaware Corporation.
    Superior Court of Pennsylvania.
    Argued Sept. 26, 1995.
    Filed Jan. 17, 1996.

      William Wycoff, Pittsburgh, for appellant.
    Richard R. Nelson, II, Pittsburgh, for appellee.
    Before CIRILLO, BECK and HUDOCK, JJ.
   CIRILLO, Judge:

This is an appeal from an order of the Common Pleas Court of Allegheny County. We reverse and remand.

Appellant, Ronald A. Drapeau (“Drapeau”), owned 54,764 shares of common stock in Appellee-Company, Joy Technologies, Inc. (“Joy”). Drapeau, an employee of Joy, owned the stock pursuant to an amended Employee Stockholders Agreement (“Agreement”). The Agreement provided, in part, that if Drapeau should cease to be employed with Joy, for any reason, he was required to immediately offer to sell back to Joy his shares of company stock.

In February of 1992, Drapeau voluntarily terminated his employment with Joy and immediately offered to sell his shares of stock to the company. However, Joy officers constantly attempted to dissuade Drapeau from enforcing his right to have his stock bought back by Joy. Not until after Drapeau hired counsel did Joy finally agree to enter into a Stock Purchase Agreement (“Purchase Agreement”) with Drapeau. The Purchase Agreement contained the condition that Drapeau retained the right to seek recourse from Joy for additional sums due and owing under the original Agreement.

In October, 1992, Drapeau filed an action against Joy alleging, theories of breach of the Agreement, common law fraud and violation of the Pennsylvania State Securities Act of 1972. The court sustained Joy’s preliminary objections to Drapeau’s second amended complaint and dismissed the fraud and securities act counts. Drapeau and Joy then moved and cross-moved, respectively, for summary judgment on the breach of contract claim. Both motions were denied by orders without an opinion.

Before trial, Drapeau filed a motion in limine to exclude testimony of a former Joy C.E.O., regarding the intent of the parties in drafting the Agreement. This motion was granted by a court of concurrent jurisdiction. Joy then renewed its motion for summary judgment which was also granted in favor of Joy. Drapeau now files this timely appeal.

Appellant raises the following issues for our consideration:

(1) Whether the trial court erred in reconsidering and overruling an interlocutory order issued by a court of concurrent jurisdiction in the same case;
(2) Whether the trial court erred in excluding evidence of the parties’ intent in an agreement that had inherently ambiguous terms;
(3) Whether the trial court erred by granting defendant’s motion for summary judgment based upon the conclusion that the agreement at issue was clear and unambiguous in favor of the defendant; and
(4) Whether the trial court erred in dismissing Count III of the second amended complaint where Count III accurately set forth all legal and factual averments necessary to sustain claims for common law fraud and violations of the Pennsylvania Securities Act?

Appellant properly appeals from a final order granting summary judgment. See Pa.R.A.P. 341(c). When we review the grant of a motion for summary judgment made under Pa.R.C.P. 1035, the appellate court’s scope of review is well-settled: summary judgment is properly granted where “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P. 1035(b). Summary judgment may be granted only where the right is clear and free from doubt. Musser v. Vilsmeier Auction Co. Inc., 522 Pa. 367, 369, 562 A.2d 279, 280 (1989). The moving party has the burden of proving that there is no genuine issue of material fact. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979). The record and any inferences therefrom must be viewed in the light most favorable to the nonmoving party, and any doubt must be resolved against the moving party. Davis v. Pennzoil, 438 Pa. 194, 264 A.2d 597 (1970). The trial court will be overturned on the entry of summary judgment only if there has been an error of law or a clear abuse of discretion. Hetrick v. Apollo Gas Co., 415 Pa.Super. 189, 608 A.2d 1074 (1992).

Additionally, it is well-settled that summary judgment may not be entered where the moving party relies exclusively upon deposition testimony in order to establish that there is no genuine issue of material fact. Penn Center House, Inc. v. Hoffman, 520 Pa. 171, 553 A.2d 900 (1989), citing Nanty-Glo v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932) (holding that a court may not summarily enter a judgment where the evidence depends upon oral testimony because the testimony is still a matter of credibility for the jury to decide). Because we find that the trial court abused its discretion by granting summary judgment in favor of Joy, we reverse and remand.

Appellant first contends that the trial court improperly overruled the decision of a prior court, at the same level, by reconsidering and subsequently granting Joy’s motion for summary judgment. We agree with the Appellant and hold that the trial judge erred as a matter of law in granting the motion.

Where a motion has been presented and decided and where no new facts are presented in the motion which is seeking the same relief, the first order should be followed based on considerations of judicial economy and efficiency. Harrity v. Medical College of Pennsylvania Hospital, 439 Pa.Super. 10, 653 A.2d 5 (1994). This rule prevents forum shopping because without this rule, the same issue could be raised repeatedly before different judges of the same court until a litigant finds a judge sympathetic to his or her position. Id. Additionally, our supreme court has stated that “absent the most compelling circumstances, a judge should follow the decision of a colleague on the same court when based on the same set of facts.” Yudacufski v. Commonwealth of Pa. Dep’t of Transportation, 499 Pa. 605, 612, 454 A.2d 923, 926 (1982). See also Okkerse v. Howe, 521 Pa. 509, 556 A.2d 827 (1989) (remanding case to the trial court when it was held that it is contrary to jurisprudential policy for a successor judge to rule on a motion when the successor judge had no record basis upon which to sustain the motion); Golden v. Dion & Rosenau 410 Pa.Super. 506, 600 A.2d 568 (1991) (same).

In the case at hand, the judge granting summary judgment was faced with the same set of facts and no new additional evidence in the record than that which was presented to the original judge who ruled on the same motion. The only change in the record, which occurred between the preceding judge’s denial of Joy’s first motion for summary judgment and the subsequent order granting the renewed motion, was the exclusion of testimonial evidence by Joy’s former C.E.O.

Based upon the Nanty-Glo rule, a case should not be summarily decided solely on the basis of a non-party’s testimony. Nanty-Glo, supra,. As such, the inclusion or exclusion of Joy’s former C.E.O.’s testimony should not have been the deciding factor in determining that no genuine issue of fact existed in the case at hand. This is especially true in light of the fact that the same court would not have been able to decide a motion for summary judgment based solely on identical testimony. Nanty-Glo, supra. Accordingly, we find that the trial court acted neither in the interests of jurisprudence nor in a manner promoting judicial economy or efficiency by granting Joy’s renewed motion for summary judgment. Okkerse, supra. See also Salerno v. Philadelphia Newspapers, Inc., 377 Pa.Super. 83, 546 A.2d 1168 (1988) (affirming order to grant summary judgment that overruled prior judge’s denial of preliminary objections because the expense of an unnecessary trial would thwart the very purpose of maintaining judicial economy and efficiency). Cf. Rosenfield v. Pennsylvania Aut. Ins., 431 Pa.Super. 383, 636 A.2d 1138 (1994) (determining that successor trial judge properly granted summary judgment, contrary to preceding trial judge’s order to deny same party’s preliminary objections, when the trial court did not issue an opinion stating why the preliminary objections were not granted and where the successor judge was provided with a more current and wider array of documents upon which to base her decision than was the original trial judge); Boyle v. Steiman, 429 Pa.Super. 1, 631 A.2d 1025 (1993) (holding that it was only proper for successor judge to overrule prior order of predecessor judge in a case based on additional evidence presented to successor judge); Hutchison by Hutchison v. Luddy, 417 Pa.Super. 93, 110, 611 A.2d 1280, 1289 (1992) (holding that where the record contains new evidence which was not in the record before the preceding judge, it is not improper for the succeeding judge to reach a different result on reconsideration of an order).

The trial court clearly abused its discretion and committed error of law by deciding that there was no genuine issue of material fact and that Joy was entitled to judgment as a matter of law. See Pa.R.C.P. 1035. Because this case must be remanded for a full hearing on its merits, we need not make a determination of the other issues on appeal.

Order reversed and remanded. Jurisdiction relinquished.

BECK, J., files a concurring opinion.

BECK, Judge,

concurring.

I concur in the result reached by the majority. On the contract claim, I conclude that summary judgment in favor of appellee was improper. Regardless of the deposition testimony of Roy Wennerholm, the Employee Stockholders Agreement dated June 24, 1987, was ambiguous, and therefore; questions of material fact existed.

In the present litigation, both parties agree New York law applies to all questions concerning the construction, validity and interpretation of the Agreement. This court, as the forum court, applies its own procedural rules even when a contractual choice of law clause provides for the application of another state’s substantive laws. See Smith v. Commonwealth National Bank, 384 Pa.Super 65, 557 A.2d 775, 777 (1989), allocatur denied, 524 Pa. 610, 569 A.2d 1369 (1990) (court applied Pennsylvania standard for summary judgment even though agreement was governed by the interna] laws of New York).

Pennsylvania’s standard of review of a grant of summary judgment is well settled: summary judgment is properly granted where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Pa.R.A.P. 341(c). The moving party has the burden of proving there is no genuine issue of material fact. Krause v. Great Lakes Holdings, Inc., 387 Pa.Super. 56, 563 A.2d 1182, allocatur denied, 524 Pa. 629, 574 A.2d 70 (1989). Furthermore, the record and all reasonable inferences must be viewed in a light most favorable to the non-moving party with any doubts resolved against the moving party. Id.

Under New York law, whether a contract is ambiguous is a question of law to be decided by the court. Ruttenherg v. Davidge Data Systems Corp., 215 A.D.2d 191, 626 N.Y.S.2d 174, 175 (1995). When the meaning of the contract is ambiguous and the intent of the parties becomes an issue, a question of fact is presented and summary judgment must be denied. Id. See Yanuck v. Simon Paston the Sons Agency, Inc., 209 A.D.2d 207, 618 N.Y.S.2d 295 (1994) (when contract provisions are susceptible to at least two reasonable interpretations and intent must be gleaned from disputed evidence or from inferences outside the written words, it is an issue of fact that must be resolved at trial). A contract is ambiguous when, within the context of the entire agreement, reasonable minds could differ because the language in the written contract is susceptible to more than one meaning, each as reasonable as the other. Consarc Corporation v. Marine Midland Bank, 996 F.2d 568 (2nd Cir.1993). As set forth below, regardless of the testimony of Roy Wennerholm, the language in the Employee Stockholders Agreement is susceptible to more than one reasonable interpretation; therefore, summary judgment was improper.

At issue is the interpretation of the Employee Stockholders Agreement provision which requires the employee to immediately offer to sell back to Joy his/her shares of company stock upon termination of employment. The question raised by both parties concerns the time period in which Joy must agree to repurchase the employee’s stock. The time required for the company to repurchase is important because the price of repurchase is determined by the fair market value of the stock.

On February 29, 1992, appellant voluntarily terminated his employment with appellee/Joy and immediately offered to sell his shares of company stock back to Joy. On February 25, 1992, the fifth trading day preceding the date of appellant’s termination of employment, Joy’s common stock was publicly traded with a market price of $15.75 per share. At a March 17, 1992 board meeting, the directors did not determine whether to repurchase appellant’s stock. Appellee asserts that if a decision had been made on March 17, 1992, the purchase date would have been thirty days later on April 16, 1992, and the value date would have been April 9, 1992 (five trading days prior to the purchase deadline). However, the board of directors did not agree to repurchase appellant’s stock until May 18, 1992. Appellee argues that since the decision was made on May 18, 1992 to repurchase, Joy had thirty days to complete the purchase (June 16, 1992); therefore, the value date was June 10, 1992 (five trading days before the repurchase deadline). Appellee further argues they were more than fair, because the value appellant finally received for his stock was based on the higher value of April 9, 1992. The difference between the value of the shares appellant asserts to be correct on February 25, 1992 and the value on April 9,1992 was $4.50 per share.

Appellant argues Joy has the obligation to immediately repurchase appellant’s publicly traded Class A Common Stock and the date to determine the fair market value of the stock is five trading days prior to the employee’s termination. Appellant asserts the word immediately used in § 1.4(a) of the Agreement refers not only to the employee’s obligation to immediately offer the stock for repurchase upon termination, but Joy’s obligation to immediately agree to repurchase the employee’s stock. Appellant explains the requirement that appellant immediately offer his stock for sale prevents employees from engaging in market speculation and holding onto stock in hopes of selling stock back to the company at an increased price. Appellant argues that Section 1.4(a) requires the company immediately to repurchase the employee’s stock in order to prevent the company from market speculation and repurchasing at a lower price. Appellant also asserts the Employee Stockholders Agreement does not require board action when the stock is publicly traded Class A Common Stock. Appellant cites to Section 1.6(a) & (f). Appellant argues whereas Section 1.6(a) requires the board of directors to meet and determine the fair market value of the shares, Section (a) also references section (f) which states that publicly traded Class A Common Stock is valued by the market price. Appellant asserts the interaction of Sections 1.6(a) & (f) requires board of director action only when the stock is not publicly traded.

On the other hand, appellee argues Joy’s board of directors has 205 days after an employee’s termination to act on the repurchase of shares. Appellee next asserts the Employee Stockholder Agreement requires the board of directors to act at a regularly scheduled meeting to determine whether to repurchase the offered shares. If the board decides to repurchase the shares then the purchase deadline is set for thirty days later and for publicly traded common stock, the value of the stock is determined by using the market value of the stock five trading days prior to the purchase deadline.

From a reading of the Employee Stockholders Agreement, the contract is silent on when the Company must determine whether to repurchase the employee’s stock and unclear on how the Company is to proceed in making its determination and completing the transaction. We find the arguments asserted by both appellee and appellant concerning the procedure and time requirements of repurchase are reasonable interpretations of the agreement. Regardless of the testimony of Roy Wennerholm, there is more than one reasonable interpretation of the agreement, and the contract is clearly ambiguous. As stated above, when a contract is ambiguous, the issue of intent of the parties is a question of fact not to be decided on a motion for summary judgment. Therefore, the trial court’s grant of summary judgment in appellee’s favor was improper.

Since we have determined the Employee Stockholders Agreement is ambiguous regardless of the testimony of Roy Wennerholm, the testimony of Roy Wennerholm should be admitted under the parole evidence rule. Under the parole evidence rule, if a contract provision is ambiguous, extrinsic evidence can be properly admitted in an attempt to resolve the ambiguity. Motor Coils Manufacturing v. American Insurance Co., 308 Pa.Super. 568, 454 A.2d 1044 (1982). See Osborne v. Carmichaels Mining Machine Repair, Inc., 427 Pa.Super. 159, 628 A.2d 874 (1993) (stating when intent of parties is unclear as expressed in the language of the agreement, extrinsic evidence may be admitted to resolve ambiguous terms).

Appellant also appeals the trial court’s grant of appellee’s preliminary objections and dismissal of appellant’s Count III. Count III alleged common law fraud and a violation of the Pennsylvania Securities Act. The majority opinion does not address this issue.

I would affirm the trial court’s dismissal of Count III. Our standard of review of an order granting preliminary objections in the natures of a demurrer is as follows: all material facts set forth in the complaint, as well as, all inferences reasonable deducible therefrom are admitted as true for the purpose of review. Pittsburgh National Bank v. Perr 431 Pa.Super. 580, 637 A.2d 334, allocatur denied, 537 Pa. 665, 644 A.2d 1202 (1994). See Bower v. Bower, 531 Pa. 54, 611 A.2d 181 (1992). The question presented by a demurrer is whether on the facts averred, the law says with certainty that no recovery is possible. Id. A demurrer should be sustained only in cases where the plaintiff has clearly failed to state a claim on which relief may be granted. Id. Appellant has failed to allege a cause of action in common law fraud and has failed to allege a cause of action for a violation of the Pennsylvania Securities Act.

In order to state a cause of action for common law fraud, the plaintiff is required to establish: (1) a misrepresentation; (2) a fraudulent utterance thereof; (3) an intention by the maker that the recipient will thereby be induced to act; (4) justifiable reliance by the recipient upon the misrepresentation; and (5) damage to the recipient as the proximate result. Woodward v. Dietrich, 378 Pa.Super. 111, 548 A.2d 301 (1988). See Delahanty v. First Pennsylvania Bank, 318 Pa.Super. 90, 464 A.2d 1243 (1983). A misrepresentation need not be in the form of a positive assertion but can be a concealment which should have been disclosed, and which deceives or is intended to deceive another to act upon it to his detriment. Wilson v. Donegal Mutual Insurance Co., 410 Pa.Super. 31, 598 A.2d 1310 (1991). Appellant alleges appellee’s delay tactics coupled with the concealment of Joy’s financial condition amounts to fraud. However, for an omission to be fraud there must be a duty to speak. Mere silence is not sufficient to constitute fraud in the absence of a duty to speak. Wilson, supra. See Sevin v. Kelshaw, 417 Pa.Super. 1, 611 A.2d 1232 (1992); Smith v. Renaut, 387 Pa.Super. 299, 564 A.2d 188 (1989) (fraud arises where there is an intentional concealment calculated to deceive or where there is a nonprivileged failure to disclose; however, while concealment may constitute fraud, mere silence is not sufficient in the absence of a duty to speak).

An independent duty to disclose information arises where there is a confidential or fiduciary relationship between the parties involved in the transaction. Federal Land Bank of Baltimore v. Fetner, 269 Pa.Super. 455, 410 A.2d 344 (1979) (there is no duty for lender to disclose defects in title to borrower because the relationship between borrower and lender does not create a confidential relationship). See City of Harrisburg v. Bradford Trust Company, 621 F.Supp. 463 (M.D.Pa.1985) (omission is actionable only where there is an independent duty to disclose omitted information and such duty exists when the party who is under an obligation to disclose stands in a fiduciary or confidential relationship to the party seeking disclosure). The Pennsylvania Supreme Court characterized a confidential relationship as a relationship with trust and reliance on one side and a corresponding opportunity to abuse that trust for personal gain on the other. In re Scott’s Estate, 455 Pa. 429, 316 A.2d 883 (1974) (joint tenants of a bank account created by brother and sister, without more does not place them in a relationship of confidentiality). The court went on to state that a business association may be the basis of a confidential relationship only if one party surrenders substantial control over some portion of his affairs to the other. Id. The Pennsylvania Supreme Court in Union Trust Co. v. Cwynar, 388 Pa. 644, 131 A.2d 133 (1957) stated a confidential relationship is created when “one occupies a superior position over the other — intellectually, physically, govern-mentally or morally — with the opportunity to use that superiority to the other’s disadvantage.”

Appellant and appellee are not in a confidential relationship, and appellee had no duty to disclose the financial condition of the corporation to appellant; therefore, this concealment is not actionable as fraud. Whereas appellee is in the position to accept appellant’s offer to purchase the corporation’s stock, appellee has no other control or position of superiority over appellant. Furthermore, appellant failed to cite, and independent research failed to discover any case law creating a duty to disclose on appellee. In fact, once appellant’s breach of contract claim is disposed of and the ambiguity in the Employee Stockholder Agreement resolved, appellant will not have a common law fraud claim because the date to value the stock will be established by the agreement and the financial condition of the corporation will be irrelevant. Since appellee does not owe a duty of disclosure to appellant, appellant cannot state a cause of action for common law fraud based on appellee’s omission.

As an additional rationale for my decision that appellant has failed to state a cause of action in common law fraud, I find appellant did not adequately allege the element of reliance. In order to state a cause of action for common law fraud, plaintiff/appellant is required to establish he justifiably relied on the omission or misrepresentation. Woodward, supra. Furthermore, Pennsylvania Rule of Civil Procedure 1019(b) requires fraud be plead with particularity. The Pennsylvania Supreme Court stated that “pleadings must adequately explain the nature of the claim to the opposing party so as to permit him to prepare a defense and they must be sufficient to convince the court that the averments are. not merely subterfuge.” Bata v. Central-Penn National Bank of Philadelphia, 423 Pa. 373, 224 A.2d 174 (1966), cert. denied, 386 U.S. 1007, 87 S.Ct. 1348, 18 L.Ed.2d 433 (1967) See Dwyer v. Rothman, 288 Pa.Super. 256, 431 A.2d 1035 (1981) (finding allegations do not aver fraud with particularity). Nowhere in appellant’s fraud count or statement of facts has appellant alleged that he took action or refrained from taking action in reliance on appellee’s omission. Appellant simply states that the tactics and omission resulted in his receiving a lower price for his stock. Appellant’s statement of facts does not imply reliance, but establishes that appellant did not accept any other offer by appellee to purchase his stock because he believed the value of the stock should have been the market value of the stock based on the day he resigned. Since appellee has no duty to disclose information to appellant and since appellant failed to allege reliance in his complaint, appellant failed to state of cause of action in common law fraud and the trial court’s grant of preliminary objections are affirmed.

Appellant also failed to state a cause of action for a violation of the Pennsylvania Securities Act § 1^401. 70 P.S. § 1-401 (Purdons 1993). Section 1-501 sets out enforcement mechanisms and civil liabilities. 70 P.S. § 1-501 (Purdons 1993). Section l-501(b) establishes civil liability against a purchaser who violates § 1-401 and states the purchaser shall:

be liable to the person selling the security to him, who may sue either at law or in equity to recover the security, plus any income or distributions, in cash or in kind, received by the purchaser thereon, upon tender of the consideration received, or for damages if the purchaser no longer owns the security.

70 P.S. § 1 — 501(b). From the plain language of the statute, the seller can (1) recover the stock and distributions if the purchaser still owns the stock and the seller tenders the consideration he received to the purchaser or (2) recover damages but only if the purchaser no longer owns the security. Appellant’s only request for relief is damages; however, he failed to allege that appellee no longer owned the stock. Furthermore, appellant did not request the return of the stock, nor allege that he had tendered the consideration received back to the purchaser. As a result appellant has failed to state a cause of action for a violation of Pennsylvania Securities Act.

I would affirm the trial court’s dismissal of Count III.

      . The Agreement fixed the purchase price at the market price of Joy’s stock "on the fifth trading day preceding the date of purchase.” If Drapeau had sold his shares to Joy, pursuant to the Agreement, immediately following his termination in February 1992, Drapeau would have received $15.75 per share — a total purchase price of $862,-533.00 — compared to the actual price received of $616,095.00.

      . Drapeau sought to recover damages in the amount of $246,440.00 plus costs — approximately the difference between the value of the stock in February, 1992 (the time of Drapeau’s resignation) and the value in April of the same year (the actual date used to determine the market price for Joy's buyback).

      . The Employee Stockholders Agreement provides that "[a]ll questions concerning the construction, validity and interpretation of this Agreement and the schedules hereto shall be governed by the internal laws and not the conflicts of laws of the State of New York.” Agreement § 2.9.

      . Mr. Wennerholm recalled negotiations of the Employee Shareholders Agreement and the parties’ intention with respect to the contract provisions at issue.

      . Section 1.4(a) of the Agreement provides that upon termination, employee "(i) shall immediately offer to sell his Class A Common Stock or Capital Stock to the Company at the price determined in accordance with the provisions of Section 1.6 hereof, and the Company shall have the obligation to purchase such Capital Stock, subject only to Section 1.5 hereof and (ii) shall not be permitted, except as otherwise provided in this section 1.4, to sell any such shares to any third party.”

      . 1.6(a) provides "except as otherwise provided in Sections 1.6(d) or 1.6(e) below, the purchase price per share to be paid by the Company under Section 1.4 hereof for Fully Vested Class A Common Stock shall be the fair market value per share (as determined by the Board of Directors of the Company in accordance with the provisions of Section 1.6(f)).”
      Section 1.6(f) states "the fair market value of Capital Stock shall be the price at which the Capital Stock would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or sell and both having a reasonable knowledge of relevant facts. Fair Market Value shall be determined as follows (i) For Class A Common Stock, the Fair Market Value shall be the market price, if the Class A Common Stock is publicly traded. If the Class A Common Stock is not publicly traded, fair market value shall be determined by the Board of Directors of the Company by taking into account all relevant factors and circumstances....”

      . Section 1.4(e) states that if the board of directors did not act to repurchase the shares within 205 days following the employee’s termination, the employee may then sell the stock to third parties. Appellant argues that section 1.4(e) does not apply to the present facts. Appellant asserts section 1.4(e) applies only when the company is unable to purchase the stock pursuant to section 1.5 and sections 1.4(c), (d) & (e) provide a mechanism for the employee to sell his stock to others.

      . Appellee claims that Section 1.6(a) requires the board of directors to meet and determine the fair market value of the shares.

      . Section 1.10 provides that the repurchase shall be completed within thirty days after the purchase price is determined pursuant to section 1.6. Appellee claims section 1.10 sets a purchase deadline thirty days after the board of directors decides to repurchase and requires the fair market value to be determined according to the market price five trading days prior to the thirty day repurchase deadline. Appellant, on the other hand, claims a plain reading of section 1.10 requires the thirty day completion deadline to be set from the date the purchase price is determined.

      . Research did uncover a case which discussed whether a director who was purchasing stock from a shareholder had a fiduciary relationship and duty to disclose information about the value of the stock. Binns v. Copper Range Company, 335 Pa. 257, 6 A.2d 895 (1939). The court stated an officer or director as the purchaser of shares from a stockholder does not, in and of itself, in the absence of special circumstances create a fiduciary relationship between them as to the sale of the stock. Even though not on point, this supports our conclusion that the corporation as purchaser does not owe a duty to disclose to a shareholder seller.


source: Caselaw Access Project

author: HESTER, Judge: BECK, Judge,

license: Public Domain

text:
    670 A.2d 173
    Mark HUNGER, Appellant v. GRAND CENTRAL SANITATION and Gary Perin.
    Superior Court of Pennsylvania.
    Argued Aug. 1, 1995.
    Filed Jan. 18, 1996.

      Glennis L. Clark, Allentown, for appellant.
    Anthony J. Martino, Bangor, for appellees.
    Before BECK, SAYLOR and HESTER, JJ.
   HESTER, Judge:

Mark Hunger appeals from the December 9, 1994 grant of summary judgment to appellees, Grand Central Sanitation and Gary Perin. We are constrained to affirm under current precedent of this court.

Appellant instituted this action on January 26, 1993, against his former employer and Mr. Perin, who terminated appellant. The action is based upon wrongful discharge, intentional infliction of emotional distress, and negligent infliction of emotional distress. Appellees filed an answer and new matter. After these pleadings were filed, appellees moved for summary judgment, which was granted. This appeal followed.

We first examine our standard of review in the summary judgment context. The evidence must be viewed in the light most favorable to the non-moving party, and he must be given all the reasonable inferences created by his evidence. Long v. Norriton Hydraulics, Inc., 443 Pa.Super. 532, 662 A.2d 1089 (1995). Nonetheless, “[i]f there are no material issues of fact in dispute, and plaintiff has failed to allege facts sufficient to make out a prima facie case, as a matter of law, then summary judgment may be granted properly.” Dudley v. USX Corp, 414 Pa.Super. 160, 169-70, 606 A.2d 916, 920 (1992). Thus, where there are no credibility issues and the allegations of the appealing party, if accepted as true, fail to make out a prima facie case as a matter of law rather than as a matter of fact, summary judgment is appropriate. Id.

We therefore accept as true the following factual allegations contained in appellant’s complaint and affidavit. Appellant was employed by Grand Central Sanitation (“Grand Central”) on June 28, 1990, as the company’s safety director. Mr. Perm is the vice-president and owner of Grand Central. On September 7, 1991, appellant “became aware” that hazardous materials consisting of blasting caps were being deposited into garbage containers at Shu-Deb Inc. (“Shu-Deb”). Reproduced Record, (“R.R.”) at 3a. The complaint contains no averments about how appellant became aware of this information. Grand Central picked up garbage for Shu-Deb and dumped it at a dump site. Appellant knew that Grand Central was not licensed to dispose of hazardous materials at any of its dump sites and believed that it would be a violation of federal law, state law, or both if the company transported or disposed of hazardous materials. Appellant also became concerned about the safety of company employees from the danger of transporting blasting caps.

On September 9, 1991, appellant told Mr. Perm about the information he received that blasting caps were being dumped into the containers at Shu-Deb. The next day, he contacted state and local police asking for a description of blasting caps, which he never had seen. He also made arrangements to search Shu-Deb’s garbage container.

On September 12, 1991, appellant, accompanied by Pennsylvania State Police and members of the federal Bureau of Alcohol, Tobacco, and Firearms, went to search the contents of the garbage container. When appellant and police arrived at Shu-Deb, the garbage had been collected, so police located the garbage truck that had the garbage and searched it. “No hazardous materials were found.” R.R. 4a. On October 4, 1991, appellant was discharged as a result of the incident.

Appellant first alleges that his wrongful discharge claim was dismissed improperly due to the public policy exception to the doctrine of at-will employment. We examine the applicable law:

In Pennsylvania, as a general rule, no common law cause of action exists against an employer for termination of an at-will employment relationship. Krajsa v. Keypunch, Inc., 424 Pa.Super. 230, 237, 622 A.2d 355, 358 (1993) (“an at will employee may be terminated for good reason, bad reason, or no reason at all”). Moreover, “exceptions to this rule have been recognized in only the most limited of circum- . stances, where discharges of at-will employees would threaten the clear mandates of public policy.” Id. at 237, 622 A.2d at 358....

Holewinski v. Children’s Hospital of Pittsburgh, 437 Pa.Super. 174, 178, 649 A.2d 712, 715 (1994).

The public policy exception to the at-will doctrine was recognized by our Supreme Court in Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974), a case remarkably similar to the one at bar. There, the plaintiff was a salesman for the defendant and criticized to company officials above his immediate supervisors the quality of the steel being produced. He was discharged even though the product later was determined to be substandard and -withdrawn from the market. Geary alleged that his termination fell within a public policy exception to the at-will doctrine since he was acting in the interest of the safety of the general public.

While the Supreme Court recognized that a public policy exception may exist under appropriate conditions, it rejected plaintiffs argument that his allegations fell within its ambit on two grounds. First, the plaintiff was not obligated statutorily to report defective products. Second, on its face, the complaint offered the existence of a plausible reason for discharge in that the plaintiff had bypassed his immediate supervisors to make the complaint.

To state a public policy exception to the at-will-employment doctrine, the employee must point to a clear public policy articulated in the constitution, in legislation, an administrative regulation, or a judicial decision. Jacques v. Akzo International Salt, Inc., 422 Pa.Super. 419, 619 A.2d 748 (1993). Furthermore, the stated mandate of public policy, as articulated in the constitution, statute, or judicial decision, must be applicable directly to the employee and the employee’s actions. It is not sufficient that the employer’s actions toward the employee are unfair. Reese v. Tom Hesser Chevrolet-BMW, 413 Pa.Super. 168, 604 A.2d 1072 (1992) (fact that employer required employee, as condition of continued employment, to reimburse it for losses attributable to action of employee may have been unfair but did not violate law; therefore, employee failed to state public policy exception to doctrine of at-will employment); Darlington v. General Electric, 350 Pa.Super. 183, 504 A.2d 306 (1986) (no public policy exception to at-will employment doctrine found even though employee was discharged unfairly in that he was not afforded the opportunity to defend himself against allegations of accounting irregularities).

We have recognized a public policy exception only in extremely limited circumstances. If an employee is fired for performing a function that he is required to perform by law, an action for wrongful discharge on public policy grounds will be allowed. See e.g., Field v. Philadelphia Electric Co., 388 Pa.Super. 400, 565 A.2d 1170 (1989) (employee fired for reporting a nuclear safety violation that he was required to report under federal law); Reuther v. Fowler & Williams, Inc., 255 Pa.Super. 28, 386 A.2d 119 (1978) (employer fired an employee for serving on a jury; public policy was violated since people are required by law to serve on jury and since service on jury has constitutional implications).

A public policy exception to the at-will doctrine also will be found when the firing itself is a criminal activity as in Kroen v. Bedway Security Agency, Inc., 430 Pa.Super. 83, 633 A.2d 628 (1993). There, an employer fired an employee for refusing to take a polygraph test. It is illegal for a person to require, as a condition for employment or continuation of employment, that an employee take a polygraph test. 18 Pa.S.C. § 7321.

Herein, appellant notes that it is illegal to transport hazardous materials without a license. We agree. However, appellant admitted in his complaint that no blasting caps were discovered. Thus, appellees did not violate the law. If appellant had observed a deliberate violation of the law, reported it to proper authorities, and was fired, then the reasoning of Kroen may have been applicable. There is no indication that this occurred herein.

In this case, appellant’s actions were premature. He provides no specifics about how he “became aware” that blasting caps were being dumped. R.R. at 3a. He fails to indicate the capacity of the person who informed him of this, the nature of his investigation into substantiating the reliability of the information, and why it was necessary to inform state and federal law enforcement officials about the situation immediately.

Our disposition of this case may have been different if appellant discovered that his employer was deliberately transporting hazardous materials after being told of the situation. That is not what occurred, regardless of appellant’s concern with the public safety. The source of appellant’s “awareness” of the alleged illegal activities is completely unsubstantiated. Furthermore, his employer’s criminal intent is not established. At most, one of the employer’s customers allegedly was dumping illegal explosives.

We also are guided herein by Krajsa v. Keypunch, Inc., 424 Pa.Super. 230, 622 A.2d 355, 358 (1993), where we examined Pennsylvania’s Whistleblower’s Law, 43 Pa.C.S. §§ 1421, et seq. That act provides that persons may not be discharged from a public body for reporting to an appropriate body instances of waste, mismanagement, or violations of the law. In that case, an employee of a private employer alleged that he had been terminated for reporting illegal activities of his employer. We held that no cause of action for wrongful discharge existed because the Whistleblower’s Law does not apply to private employers.

The reasoning of Krajsa controls this case. Appellant argues that he was fired for reporting a violation of the Solid Waste Management Act. He concedes that he was not under a statutory duty to report the alleged violation. Appellant’s brief at 14. Under Krajsa, a firing which resulted solely due to an employee’s decision to report his employer’s illegal activities is not actionable. The firing must be specifically prohibited bjr statute.

Furthermore, the Supreme Court in Geary held that if reasonable grounds for the firing are apparent on the face of the complaint, a wrongful discharge action will be dismissed. Herein, we concur with the trial court’s conclusion that appellant’s actions, as set forth in the complaint, provided a reasonable basis for his firing:

[T]he complaint itself leaves open for implication separate, plausible and legitimate reasons for the plaintiffs termination. An employer, under the facts presented, may wish his safety director to treat a potential violation of waste management laws differently. The scenarios are abundant. The safety director could have addressed the issue to the customer first; could have personally inspected the refuse before it was dumped into the employer’s truck; and he could have advised the employer to refuse the offending waste.

Trial court opinion, 12/9/94, at 16-17. We agree with the trial court that appellant’s overzealous decision to treat the information he received as para-military matter was grounds for termination. By immediately bringing in state and federal officials after “becoming aware” of a possible violation of the law, appellant embarrassed his employer and his employer’s customer.

We next discuss whether appellant has stated a claim for intentional infliction of emotional distress. As indicated in Field v. Philadelphia Electric Co., supra, a cause of action for intentional infliction of emotional distress will lie where the dictates of section 46 of the Restatement (Second) of Torts are satisfied. That section provides:

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

Thus, at the onset, the defendant’s conduct must be extreme and outrageous. Paraño v. O’Connor, 433 Pa.Super. 570, 641 A.2d 607 (1994). The definition of outrageous conduct also is set forth in the Restatement:

d. Extreme and outrageous conduct.
The cases thus far decided have found liability only where the defendant’s conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by “malice,” or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!”
The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where some one’s [sic] feelings are hurt.

Restatement (Second) of Torts § 46 comment d.

The fact that appellant was fired for embarrassing his employer and a customer is not shocking or outrageous. It hardly is an atrocity which no civilized society can tolerate.

Furthermore, a plaintiff pleading the existence of emotional distress must substantiate that he actually suffered the claimed distress with expert medical confirmation. Kazatsky v. King David Memorial Park, Inc., 515 Pa. 183, 527 A.2d 988 (1987). There must be objective proof, with competent medical evidence, for a plaintiff to proceed with a claim for intentional infliction of emotional distress. Kazatsky v. King David Memorial Park, Inc., supra; Fewell v. Besner, 444 Pa.Super. 559, 664 A.2d 577 (1995). In this case, appellant cursorily has alleged that he suffered bodily harm due to his firing but failed to oppose the summary judgment motion with medical evidence supporting this claim. For that reason alone, the trial court’s dismissal of this count was proper.

Finally, appellant argues that the trial court improperly dismissed his claim for negligent infliction of emotional distress. A cause of action for negligent infliction of emotional distress exists in only two circumstances: 1) where a close family member experiences a contemporaneous sensory observance of physical injuries being inflicted on another family member, Krysmalski v. Tarasovich, 424 Pa.Super. 121, 622 A.2d 298 (1993); or 2) where the plaintiff nearly experiences a physical impact in that he was in the zone of danger of the defendant’s tortious conduct, Kazatsky v. King David Memorial Park, Inc., supra. Clearly, neither situation exists herein. A plaintiff cannot recover for emotional upset where there is no physical impact involved in the case at all. Id. Such is the case at bar.

Order affirmed.

BECK, J., files a concurring opinion.

BECK, Judge,

concurring.

I concur in the majority’s conclusion that summary judgment was properly entered in favor of defendants-appellees in this case. However, I am unable to join in the majority’s discussion of the legal principles applicable in assessing plaintiff-appellant’s claims.

Initially, I note that although this matter was adjudicated by the trial court based on appellees’ motion for summary judgment, that motion was not supported by any depositions, affidavits or other materials as provided for in Pa.R.C.P. 1035 (providing that a party may move for “summary judgment on the pleadings and any depositions, 'answers to interrogatories, admissions on file and supporting affidavits”). In the absence of such supporting materials, appellees’ motion for summary judgment essentially asked for judgment on the pleadings. The standard and scope of our review of a trial court’s grant or denial of judgment on the pleadings are well established.

A motion for judgment on the pleadings should be granted only where the pleadings demonstrate that no genuine issue of fact exists, and the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1034; Giddings v. Tartler, 130 Pa.Cmwlth. 175, 177, 567 A.2d 766, 767 (1989). Thus, “[i]n reviewing a trial court’s decision to grant judgment on the pleadings, the scope of review of the appellate court' is plenary; the reviewing court must determine if the action of the trial court was based on a clear error of law or whether there were facts disclosed by the pleadings which should properly go to the jury.” Vogel v. Berkley, 354 Pa.Super. 291, 296, 511 A.2d 878, 880 (1986), quoted in Keystone Automated Equipment v. Reliance, 369 Pa.Super. 472, 475, 535 A.2d 648, 649 (1988), alloc. den., 519 Pa. 654, 546 A.2d 59. An appellate court must accept as true all well-pleaded facts of the party against whom the motion is made, while considering against him only those facts which he specifically admits. Jones v. Travelers Ins. Co., 356 Pa.Super. 213, 217, 514 A.2d 576, 578 (1986); West Penn Administration, Inc. v. Pittsburgh National Bank, 289 Pa.Super. 460, 467, 433 A.2d 896, 900 (1981). Neither party can be deemed to have admitted either conclusions of law or unjustified inferences. Sinn v. Burd, 486 Pa. 146, 149, 404 A.2d 672, 674 (1979); Jones, supra, 356 Pa.Super. at 217, 514 A.2d at 578.... Only when the moving party’s case is clear and free from doubt such that a trial would prove fruitless will an appellate court affirm a motion for judgment on the pleadings. Jones, supra, 356 Pa.Super. at 217, 514 A.2d at 578; Gallo [v. J.C. Penney Casualty Insurance Company] supra, 328 Pa.Super. [267] at 270, 476 A.2d [1322] at 1324 (1984).

Kelly v. Nationwide Ins. Co., 414 Pa.Super. 6, 9-10, 606 A.2d 470, 471-72 (1992) quoted in Hammerstein v. Lindsay, 440 Pa.Super. 850, 655 A.2d 597 (1995).

Viewed in light of the above principles, the pleadings establish that plaintiff-appellant Mark Hunger was hired by defendant Grand Central Sanitation, Inc. (“GCS”) as its safety director on June 28, 1990. GCS was in the business of collecting, transporting and disposing of garbage. In early September, 1991, Hunger became aware that hazardous materials including blasting caps were being deposited into garbage containers at Shu-Deb Inc., a customer of GCS. Hunger knew that GCS was not licensed to transport hazardous materials or to dispose of them at any of its dump sites, and believed that GCS would be in violation of federal and/or state laws if it transported or disposed of such materials. Hunger also feared injury to GCS personnel or damage to its property if hazardous materials were included in the garbage being collected and transported.

Hunger promptly informed his superior, GCS vice-president Gary Perm, of the possibility that Grand Central Sanitation would be transporting hazardous materials by picking up garbage containers from Shu-Deb, Inc. Hunger also contacted the Pennsylvania State Police and Allentown Police in order to obtain a description of blasting caps. At the request of the State Police and members of the federal Bureau of Alcohol, Tobacco and Firearms, Hunger consented to allow a search of Shu-Deb’s garbage containers and made arrangements for such a search. On September 12, 1991, when Hunger and the law enforcement personnel arrived to conduct the search, the garbage container had already been emptied into a GCS truck. The truck was stopped and searched at roadside, but no hazardous materials were found.

Following the incident on September 12, 1991, Hunger’s superiors expressed numerous resentments and ill feelings directly and indirectly to Hunger, and harassed him concerning his duties as safety director. Hunger suffered emotional distress and emotional and physical suffering, including depression, humiliation, mental anguish, embarrassment and damage to his career. On October 4, 1991, Hunger was discharged from employment at GCS.

Based upon the above events, Hunger filed a three-count complaint against GCS and its vice-president Gary Perm, alleging wrongful discharge, intentional infliction of emotional distress and negligent infliction of emotional distress. These claims will be addressed in sequence.

The first count of Hunger’s complaint asserts, that his discharge from employment with GCS was wrongful because it violated public policy. Like the majority, I conclude that Hunger has failed as a matter of law to make out a cognizable claim for wrongful discharge.

As the majority correctly notes, Hunger was an at-will employee of GCS. As a general rule, there is no common law cause of action for termination of an at-will employment relationship. Krajsa v. Keypunch, Inc., 424 Pa.Super. 230, 237, 622 A.2d 355, 358 (1993). Exceptions to this general rule have been narrowly carved out and vigilantly guarded by the courts of this Commonwealth. In' this case, appellant asserts that recovery should be permitted because his discharge violated public policy.

Under the public policy exception to the at-will employment doctrine,

[a]n employer’s liability for wrongful discharge rests on whether a “well-recognized facet of public policy is at stake,” Macken v. Lord Corp., 402 Pa.Super. 1, 4, 585 A.2d 1106, 1108 (1991), a policy which “strikes at the heart of [a] citizen’s social right, duties, and responsibilities.” Field v. Philadelphia Electric Co., [388 Pa.Super. 400, 418, 565 A.2d 1170, 1179 (1989) ]. “The basis of this limited, nonstatutory cause of action is an appreciation of the fact that the employer’s interest in running his business efficiently, profitably, and as he sees fit is not absolute; important as it is, it exists in the context of, and must sometimes yield to, other interests, including the interest of the employee- in making a living and the interest of the public in seeing to it that the employer does not act abusively and a proper balance between the employer’s and the employee’s interests is preserved.” Yaindl v. Ingersoll-Rand Co. Std. Pump-Aldrich Div., 281 Pa.Super. 560, 571-72, 422 A.2d 611, 616 (1980).

Highhouse v. Avery Transportation, 448 Pa.Super. 120, 125, 660 A.2d 1374, 1377 (1995). As the majority notes, this court has held that a clear mandate of public policy sufficient to overcome the general principles of at-will employment will be found only where such a policy has been reduced to a clear legislative mandate reflected in a constitutional, statutory or regulatory provision. Krajsa v. Keypunch, Inc., supra at 239, 622 A.2d at 359; Jacques v. Akzo International Salt, Inc., 422 Pa.Super. 419, 429, 619 A.2d 748, 753 (1993) (citing Yetter v. Ward Trucking Corn., 401 Pa.Super. 467, 474, 585 A.2d 1022, 1026 (1991)).

Based upon the above authority, the majority concludes that appellant’s discharge would violate public policy under severely limited circumstances. The majority would recognize a public policy violation if the employee was discharged because he refused to follow an order which violated a criminal statute, (citing Kroen v. Bedway Security Agency, Inc., 430 Pa.Super. 83, 633 A.2d 628 (1993) (discharge for refusing to undergo a polygraph test in contravention of 18 Pa.C.S. § 7321 which provides criminal sanctions against an employer who demands an employee take a polygraph test.)) The employee’s discharge would also violate public policy if he was discharged for performing an act that he was required to perform under a statute (citing Field v. Philadelphia Electric Co., supra (discharge for reporting safety violation in nuclear power plant where report was required by federal law); Reuther v. Fowler & Williams, Inc., 255 Pa.Super. 28, 386 A.2d 119 (1978) (discharge for answering summons for jury duty)). I cannot agree that the public policy exception to the doctrine of employment at will can be as narrowly drawn as the majority has done.

The majority has not taken notice of certain exceptions to the employment-at-will doctrine that have developed in a recent line of cases. This court has held that discharge of an at-will employee is actionable if the employee is discharged for exercising a statutorily protected right. Raykovitz v. K Mart Corp., 445 Pa.Super. 378, 665 A.2d 833 (1995) (discharge for collecting partial unemployment compensation based on previous full-time job while employed part-time by K Mart would violate public policy embodied in statute rendering void any agreement by employee to waive, release or commute rights to unemployment compensation); Highhouse v. Avery Transportation, supra (constructive discharge for filing unemployment compensation claim during periods when employer offered no work to employee would violate public policy embodied in statute rendering void any agreement by employee to waive, release or commute rights to unemployment compensation). See also Macken v. Lord Corp., supra (suggesting that Pennsylvania courts would recognize wrongful discharge claim based upon discharge in retaliation for filing workers’ compensation claim); Sorge v. Wright’s Knitwear Corp., 832 F.Supp. 118 (E.D.Pa.1993) (under Pennsylvania law, discharge for reporting safety violations to OSHA would violate public policy embodied in federal statute protecting employees who voluntarily file complaints under Occupational Safety and Health Act); Kilpatrick v. Delaware County S.P.C.A., 632 F.Supp. 542 (E.D.Pa.1986) (under Pennsylvania law, discharge for reporting safety violations to Pennsylvania Department of Agriculture would violate public policy embodied in federal statute protecting employees who voluntarily file complaints under or related to Occupational Safety and Health Act).

In each of these cases, the employee was under no statutory duty to act, nor did the termination violate any criminal statute. Nevertheless, a violation of public policy was found based upon statutory or constitutional recognition of an important right the exercise of which was impaired by termination of employment. I find the conclusion inescapable that although a violation of public policy will be found where the discharge is in violation of a criminal statute or in retaliation for compliance with a statutory duty, these are not the only situations in which a violation of public policy may be found. See Sorge v. Wright’s Knitwear Corp., supra at 121 (Krajsa, supra does not announce exclusive set of circumstances in which a violation of public policy can be found, but simply teaches that in certain circumstances a violation will always be found).

In this case, appellant contends that his discharge was wrongful because it violated the public policy, embodied in the Solid Waste Management Act, 35 Pa.C.S. § 6018.101 et seq. (“SWMA”), against transporting, disposing or handling hazardous wastes, including explosives, without the proper permits. However, appellant has not shown that his discharge violated those policies because he has not established a nexus between his continued employment and the public policies upon which he relies. Appellant has not demonstrated that the SWMA protects a right to report suspected violations of its provisions, or that it otherwise provides any particular protections to an employee who suspects that his or her

employer may be violating those provisions. In the absence of allegations establishing a more direct connection between appellant’s discharge and the policies fostered by the SWMA, I must agree with the majority and with the trial court that appellant has failed as a matter of law to make out a cognizable claim for wrongful discharge.

The second count of appellant’s complaint raises a claim for intentional infliction of emotional distress. I agree with the majority that appellant’s complaint fails to allege facts sufficient as a matter of law to establish an intentional infliction of emotional distress.

Although our Supreme Court has never explicitly recognized Section 46 of the Restatement (Second) of Torts as the law in Pennsylvania, see Kazatsky v. King David Memorial Park, 515 Pa. 183, 527 A.2d 988 (1987), this court has assessed claims for recovery based on intentional infliction of emotional distress under the standards set forth in that section of the Restatement. See, e.g., Field v. Philadelphia Electric Co., supra.

As the majority notes, the Restatement provides that a cause of action for intentional infliction of emotional distress must be based upon extreme and outrageous conduct by the defendant. Restatement (Second) of Torts, § 46. It is for the court to determine, in the first instance, whether the actor’s alleged conduct can reasonably be regarded as so extreme and outrageous as to permit recovery. Reimer v. Tien, 356 Pa.Super. 192, 514 A.2d 566 (1986) (citing Dawson v. Zayre Dept. Stores, 346 Pa.Super. 357, 499 A.2d 648 (1985); Restatement (Second) of Torts § 46, cmt. h).

The Restatement, in comment d to section 46, characterizes extreme and outrageous conduct as “so outrageous in character, and so extreme in degree as to go beyond all possible bounds of decency and to be regarded as atrocious, and utterly intolerable in a civilized community.” Here, the conduct complained of is that “[t]he Defendants expressed numerous resentments and ill feelings directly and indirectly to the Plaintiff,” Complaint, ¶ 24 [R.R. p. 5a], and that “[t]he Defendants harassed the Plaintiff concerning the Plaintiffs actions with regard to his duties as a safety director,” Complaint, ¶ 25 [R.R. p. 5a]. These allegations are clearly insufficient to establish extreme and outrageous conduct as contemplated by Section 46; rather, they describe the type of “mere insults, indignities, threats, petty oppressions, or other trivialities” to which liability does not extend under the Restatement. Restatement (Seeond) of Torts § 46, cmt. d.

Because appellant’s complaint fails to allege conduct which can reasonably be regarded as so extreme and outrageous as to permit recovery, I agree with the majority that entry of judgment in favor of defendants on that count was proper.

The third count of appellant’s complaint asserted a claim for negligent infliction of emotional distress. Like the majority, ! must conclude that appellant has failed to.allege facts which are capable as a matter of law of making out a claim warranting relief.

As the majority notes, the appellate courts of this Commonwealth have recognized claims for negligent infliction of emotional distress in two circumstances: first, where the plaintiff is in the zone of danger created by the defendant’s negligence and is placed in fear of physical impact; and second, where plaintiff witnesses the infliction of physical injury on a close family member. Clearly, the allegations of appellant’s complaint fail to make out a cause of action under either of these two theories. The theory underlying appellant’s claim of negligent infliction of emotional distress is different, however, and has not adequately been addressed by the majority.

Appellant urges that in Crivellaro v. Pennsylvania Power & Light Co., 341 Pa.Super. 173, 491 A.2d 207 (1985), this court also recognized that an action for negligent infliction of emotional distress can be based upon violation of a. pre-existent duty based on a contractual or implied contractual relationship. Crivellaro involved a claim for negligent infliction of emotional distress alleging that appellant had suffered severe emotional distress with various physical manifestations as a result of negligent psychological care received by plaintiff in a treatment program she entered at the insistence of her employer. This court held that plaintiff had adequately alleged physical harm resulting from her emotional distress and had stated a claim sufficient to overcome preliminary objections in the nature of a demurrer.

In Armstrong v. Paoli Memorial Hospital, 430 Pa.Super. 36, 633 A.2d 605 (1993) allocatur denied, 538 Pa. 663, 649 A.2d 666 (1994), however, this court clarified that although Crivellar ro recognized a cause of action for negligent infliction of emotional distress in cases other than those involving a plaintiff in the zone of danger or who witnesses injury to a close relative, it did not create an entirely new and independent cause of action. Rather, the Armstrong court held that Crivellaro should be read to allow recovery only in a situation where a separate, preexisting duty was owed by defendant to plaintiff and breach of that duty was the cause of the emotional distress alleged. Armstrong, supra at 50-56, 633 A.2d at 612-15. Under this interpretation of Crivellaro, the claim in that case was cognizable only because the actor, an agent of plaintiffs employer, breached a duty of care in the delivery of services to plaintiff.

Appellant argues that the mere existence of an employer-employee relationship between himself and appellees is sufficient to bring his claim within the authority of Crivellaro. However, as Armstrong makes clear, the significant factor in making out a cause of action under Crivellaro is not the mere existence of a relationship between plaintiff and defendant, but rather the existence of a duty flowing from that relationship. Only where such a duty exists, is breached, and causes severe emotional distress leading to bodily harm can a cause of action under Crivellaro successfully be asserted. Here, appellant has failed to allege facts showing that the at-will employment relationship between him and appellees imposed upon appellees any duty which was breached when they “expressed resentment and ill feelings directly and indirectly to [appellant],” Complaint, ¶ 29 [R.R. 6a], or “harassed [him] concerning [his] actions with regard to his duties as safety director,” Complaint, ¶ 30 [R.R. 6a]. In the absence of allegations establishing duty and breach, appellant’s claim for negligent infliction of emotional distress cannot be permitted to proceed.

For the reasons stated above, I would affirm the trial court’s entry of judgment in favor of defendants on all three counts of appellant’s complaint.

      . Also instructive, although not directly on point, is Hunter v. Port Authority of Allegheny County, 277 Pa.Super. 4, 419 A.2d 631 (1980). In Hunter, this court found a violation of public policy in an employer’s refusal to hire based upon the fact that the prospective employee had been convicted of assault more than ten years earlier and subsequently pardoned. This court concluded that Article I, section 10 of the Pennsylvania constitution (protecting an individual’s right to engage in any of the common occupations of life) and the decision of the Pennsylvania Supreme Court in Secretary of Revenue v. John’s Vending Corp., 453 Pa. 488, 309 A.2d 358 (1973) (where prior convictions do not reflect upon applicant’s present ability to properly discharge responsibilities required of licensed wholesale cigarette vendor, revocation of license based on convictions violates citizen’s right to engage in lawful employment) made out a clear public policy to avoid unwarranted stigmatization of and unreasonable restriction upon former offenders, which policy was violated by the employer’s actions. Thus in Hunter the “clear mandate of public policy” based in the constitutional provision was found to be violated by the employer's refusal to hire despite the fact that such refusal was neither violative of a specific criminal statute nor based upon the prospective employee’s performance of a statutorily required duty. While Hunter is distinguishable from the instant case because it involves a public employer and a refusal to hire rather than a discharge from at-will employment, it nevertheless teaches that public policies regarding employment may be found where an employer's actions impinge upon protected rights of employees and not, as the majority would hold, solely where such actions are themselves made criminal or are taken in retaliation for the employee’s compliance with a statutory duty.

        . The absence of such protections distinguishes this case from those based upon the Occupational Safety and Health Act, see Sorge v. Wright’s Knitwear Corp., supra; Kilpatrick v. Delaware County S.P.C.A., supra, and Pennsylvania’s Unemployment Compensation Law, see Raykovitz v. K Mart Corp., supra; Highhouse v. Avery Transportation, supra.

      . I cannot agree with the alternative basis for the majority’s holding, namely that appellant's wrongful discharge claim must fail because there were other reasonable grounds for his discharge. Although our Supreme Court in Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974) held that a claim for wrongful discharge may be defeated if “the complaint itself discloses a plausible and legitimate reason for terminating an at-will employment relationship,” id. at 184-85, 319 A.2d at 180, I cannot agree that the pleadings in this case make out such a plausible and legitimate reason for appellant’s discharge.
      The majority approves the trial court’s finding that
      [Tjhe complaint itself leaves open for implication separate, plausible and legitimate reasons for the plaintiff’s termination. An employer, under the facts presented, may wish his safety director to treat a potential violation of waste management laws differently.
      Trial Court Opinion at 16 (emphasis added). It was clearly improper at this stage of the proceedings for the trial court to draw inferences against appellant, the non-moving party. The only factual averment of the parties' pleadings which bears upon an alternative reason for discharge is appellees’ allegation in its new matter that the discharge was based upon appellant’s failure to perform his employment duties as required and expected by his employers. This averment is not supported by specific facts sufficient to permit the court to determine as a matter of law that a legitimate basis existed for appellant's termination. I must thus conclude that summary judgment could not be granted in this case based upon the existence of a plausible, legitimate reason for appellees’ discharge of appellant.

      . I cannot agree with the majority’s further statement that judgment for defendants was proper because appellant failed to substantiate that he actually suffered the claimed emotional distress with expert medical confirmation. Had the case gone to trial, objective proof of the claimed harm by competent medical evidence would clearly have been a part of appellant's burden. Kazatsky v. King David Memorial Park, supra. However, at this stage of the proceedings, appellant was not required to prove his allegations. Because appellees’ motion for summary judgment was not properly supported by documents, depositions or affidavits, appellant was not required to submit such evidence in response, but was entitled to rely on the allegations of his complaint. Pa.R.C.P. 1035(d) ("When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest on the mere allegations or denials of his pleading.” [emphasis added]) In the absence of supporting materials as permitted by Rule 1035, appellees’ request for judgment could be based only on the pleadings. In order to overcome appellees’ claim for judgment based on the pleadings, appellant was required only to show that his complaint alleged facts sufficient to make out the cause of action. His allegation of "emotional and physical harm, depression, humiliation, mental anguish, embarrassment and damage to his career,” Complaint, ¶ 27 [R.R. 5a], was sufficient to meet this burden.


author: POPOVICH, Judge: OLSZEWSKI, Judge,

text:
    670 A.2d 183
    COMMONWEALTH of Pennsylvania, Appellee, v. Herman EDMONDSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 10, 1995.
    Filed Jan. 19, 1996.

      Joseph P. Burt, Erie, for appellant.
    Robert A. Sambroak, Jr., Assistant District Attorney, Erie, for Commonwealth, appellee.
    Before CIRILLO, POPOVICH and OLSZEWSKI, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Erie County on June 23, 1994, following appellant’s conviction on charges of possession of a controlled substance, possession of a controlled substance with the intent to deliver, aggravated assault and resisting arrest. Appellant was sentenced consecutively to forty-two (42) months to ten (10) years for possession with intent to distribute a controlled substance and eighteen (18) months to ten (10) years for the aggravated assault charge. Appellant herein questions whether he was denied a fair trial because the trial court improperly instructed the jury. Upon review, we find the trial judge’s instruction to be coercive thereby denying appellant his right to a fair trial. Appellant also argued that the evidence presented was insufficient to sustain the verdict. We disagree that the evidence was insufficient and adopt the trial court opinion which correctly and thoroughly disposed of this issue. [Trial Court Opinion, pp. 5-7] Accordingly, we reverse the judgment of sentence and remand for a new trial.

The facts of this case are as follows: On April 8, 1993, at approximately 3:30 a.m., Erie Police Officer Tom Eberlein was on patrol when he observed a car which was traveling west on 23rd Street make a right turn and head north on State Street at a high rate of speed. The car then went through a red light while turning left at 21st and State Streets. At this time, Officer Eberlein turned on his lights, pursued the vehicle and called for backup. The officer chased the vehicle for three blocks at a rate of sixty to seventy miles per hour in an area' with a speed limit of twenty-five miles per hour. The vehicle ran two more red lights before jumping a curb and coming to a stop among a tree, a telephone pole and a stop sign. Four of the five occupants exited the car and ran. Officer Eberlein chased the closest passenger, appellant, initially by vehicle and then by foot. During the pursuit, Officer Eberlein observed appellant reach into his pocket and pull out something. Appellant ran with the object in his hand before dropping it in the vicinity of 20th and Myrtle. The officer continued to chase appellant and eventually tackled him' and wrestled him to the ground. While twisting to get away from the officer, appellant threw his arm back and struck the officer in the nose. Shortly thereafter, additional officers arrived and handcuffed appellant. Officer Eberlein showed them the area where the object was dropped, and a prescription pill vial was found. The contents of the vial were determined to be thirty-two rocks of crack cocaine. Appellant had $743.00 in his possession at the time of arrest.

At trial, the jury began their deliberations at 4:45 p.m. and returned to the courtroom with a question at 6:00 p.m. The jury asked the judge if the injury to the officer was more accidental than intentional, was it still aggravated assault. The judge responded by rereading the legal definition of aggravated assault on a police officer. The jury continued its deliberations until 6:20 p.m. when it returned with another question. The jurors wanted to know what would happen to the other three charges if they could not reach a verdict on one of them. Learning upon which charge they could not agree, the judge stated the following:

The aggravated assault. If you cannot reach a verdict, you mean you would be a hung jury. I am the one who declares whether you’re a hung jury or not. This case is about as straight-forward as you can ever gel. I am not going to hang this jury. So you’ll deliberate until I feel that you can’t deliberate anymore. Now, please do what I’ve instructed you to do. Find the facts from the evidence and apply them to the law, just the facts. Not theory, ifs ands or buts. This has been a short trial, the evidence is quite clear, you have one or two people to believe basically. I’m not going to hang you on that charge. Let’s go back, do your job as responsible jurors.

Following the judge’s order, the jury deliberated for approximately one hour more before finding appellant guilty on all charges.

The question presented to this court is whether the above instruction to the jury was coercive, resulting in an unfair trial for appellant. Upon review, we find that the trial judge abused his discretion by issuing a coercive instruction to the jury.

Initially, we note that our standard for reviewing the propriety of statements made by the trial court in its jury charge “is limited to a determination of whether the court committed a clear abuse of discretion or an error of law which controlled the outcome of the case.” Commonwealth v. Cook, 383 Pa.Super. 615, 557 A.2d 421, 424 (1989) (quoting Cucchi v. Rollins Protective Services, 377 Pa.Super. 9, 546 A.2d 1131, 1136 (1988)).

The law regarding judicial coercion was defined by the United States Supreme Court in the landmark case Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). In Allen, the Supreme Court stated that “[w]hile, undoubtedly, the verdict of the jury should represent the opinion of each individual juror, it by no means follows that opinions may not be changed by conference in the jury room. The very object of the jury system is to secure unanimity by a comparison of views, and by arguments among the jurors themselves.” Id (emphasis added). Furthermore, it is within the trial judge’s discretion to determine the length of time a jury deliberates. Commonwealth v. Chester, 526 Pa. 578, 587 A.2d 1367, 1380 (1991). However, “[i]t is well established that a verdict brought about by judicial coercion is a legal nullity.” Id.

Although the principles of Allen remain intact, our Supreme Court found the charge given to the jury in Allen to be coercive. Commonwealth v. Spencer, 442 Pa. 328, 275 A.2d 299 (1971). In Spencer, our Supreme Court saw two possible implications of the Allen charge: “(1) a minority juror should yield to the majority; and (2) those with no reasonable doubt, i.e., the majority, need not re-examine their position despite the existence of a reasonable doubt in the mind of a minority juror.” Id at 303-304. These notions were seen to be contrary to both the federal and state constitutional right to trial by jury. Id. (referring to U.S. Const, art. Ill, § 2 and amend. VI; Pa. Const, art. I, § 6, P.S.). It is quite clear that a conviction will be reversed upon the finding that a jury charge had the coercive effect of Allen. Spencer, 275 A.2d at 303.

In Commonwealth v. Hammond, 350 Pa.Super. 477, 504 A.2d 940, 941 (1986), the appellant alleged judicial coercion based on the following three sentences of the trial judge’s instruction: ‘You cannot be discharged from your duties until you have reached a unanimous verdict; ... each juror should not hesitate to re-examine his or her own view; ... come back with a verdict.” The reviewing court responded that if these three sentences were the sum total of the judge’s instructions, it might find coerciveness. Id. However, the court did not find coerciveness because, in addition to the above three sentences, the trial judge repeatedly told the jurors that they should not give in to their peers for the sake of ending the trial. Id.

More recent cases illustrate judicial action which does not rise to the level of judicial coercion. In Commonwealth v. Chester, the jury indicated difficulty in reaching a decision two times during thirteen hours of deliberation. Each time, the judge returned the jurors to the jury room for further deliberation. The court found no abuse of the trial judge’s discretion because at each break in deliberation, the judge expressly told the jury that if it found agreement to be hopeless, it was free to return. Chester, 526 Pa. 578, 587 A.2d 1367. Similarly, in Commonwealth v. Bazabe, 404 Pa.Super. 408, 590 A.2d 1298, 1300 (1991), the court dismissed an allegation of judicial coercion where the trial judge encouraged the jury to reach a verdict, yet told the jurors that “you are not required to relinquish your position if you think you are right in whatever results you in your own mind have reached.”

. As noted in Hammond, “we cannot base a finding of error on isolated sentences that are without context; it is the effect of the jury charge of a whole that is controlling.” Hammond, 504 A.2d at 941. In the present case, the judge’s instruction, viewed in its totality, had the same effect as the three sentences in Hammond. The distinction being that, in this case, the judge did not give the accompanying instruction that jurors need not abandon their opinion. By explicitly forbidding a “hung” jury and saying, “you’ll deliberate until I feel that you can’t deliberate anymore”, the trial judge gave dissenting jurors the option to accept the opinion of the majority or remain in deliberation indefinitely. This implication is coercive for precisely the same reasons that Spencer criticized the Allen charge. The judge’s instruction could have coerced a minority juror to abandon his or her reasonable doubt and yield to the majority for the sake of concluding the trial.

Perhaps even more improper, the judge expressed his displeasure with the jury’s indecision on the aggravated assault charge when he told them that “this case is about as straightforward as you can ever get ... this has been a short trial, the evidence is quite clear, you have one or two people to believe basically ... I’m not going to hang you on that charge.” Through this statement, the judge virtually conveyed his own opinion that appellant should be found guilty of aggravated assault. Moreover, as previously stated by this court, “individual jurors might have concluded ... that the court was threatening them with the wrath of God should they bring in a verdict of not guilty.” Fowler, 393 A.2d at 852 (quoting Commonwealth v. Wilmer, 434 Pa. 397, 254 A.2d 24 (1969).

It is difficult to imagine a clearer display of judicial coercion than occurred in the present case. It is the jury’s duty to consider all of the evidence and reach a unanimous verdict. This verdict should reflect the opinion of each juror and should not be tainted by the judge’s refusal to “hang” the jury nor his own opinion of the case. When reviewing the trial court’s charge as a whole, we conclude that the trial court abused its discretion when it improperly demanded a verdict and implicitly conveyed its own opinion of the case.

We note that this court is sympathetic to the judge’s discouragement of a “hung” jury due to the additional time and expense it entails. Further, it is clearly within the trial judge’s discretion to attempt to avoid such a situation by returning the jury for further deliberation. Commonwealth v. Boyles, 407 Pa.Super. 343, 595 A.2d 1180, 1185 (1991). However, it would be more proper to encourage the jury to reach a verdict than to forbid a “hung” jury. We reiterate the recommendation of our Supreme Court concerning the proper instruction to be given to a deadlocked jury. In essence, this charge would emphasize that, while a verdict is encouraged, no juror should relinquish an honest opinion based solely on the opinion of other jurors or for the purpose of returning a verdict.

In sum, we find the trial judge’s jury instruction to be coercive, thereby denying appellant his right to a fair trial. Accordingly, we reverse the judgment of sentence in totality and remand for a new trial free from the taint of judicial coercion.

Judgment of sentence reversed. Case remanded for a new trial in accordance with this opinion. Jurisdiction relinquished.

OLSZEWSKI, J., files a dissenting opinion.

OLSZEWSKI, Judge,

dissenting.

I wholeheartedly agree that a verdict which has been elicited through judicial coercion must not be allowed to stand. In finding such coercion, however, the majority states that “the ■ trial court abused its discretion when it improperly demanded a verdict and implicitly conveyed its own opinion of the case.” Majority opinion at 603. I cannot agree with either conclusion.

The majority writes that:

the judge expressed his displeasure with the jury’s indecision on the aggravated assault charge when he told them [sic] that “this case is about as straightforward as you can ever get ... this has been a short trial, the evidence is quite clear, you have one or two people to believe basically ... I’m not going to hang you on that charge.” Through this statement, the judge virtually conveyed his own opinion that appellant should be found guilty of aggravated assault. Moreover, as previously stated by this court, “individual jurors might have concluded ... that the court was threatening them with the wrath of God should they bring in a verdict of not guilty.”

Id. (citations omitted).

A plain reading of the trial judge’s remarks reveals that they were clearly neutral. In no way did the judge express an opinion as to Edmondson’s guilt. Moreover, the judge was correct in stating that the jury only had one or two people to believe concerning the aggravated assault charge. Only two people were present during the alleged assault: Edmondson and the arresting officer, Thomas Eberlein, Jr. Thus, the jury either had to believe Officer Eberlein, who testified that Edmondson had struck him in the nose, or Edmondson, who testified that he never hit the lawman. The trial judge never expressed to the jury a personal preference as to who he believed was more credible. Consequently, I cannot join the majority in concluding that the trial judge “threatened [the jurors] with the wrath of God should they bring in a verdict of not guilty.”

The majority also finds that the judge improperly forced the jury into reaching a verdict. Again, I must disagree. First, I do not believe that the trial judge’s supplemental comments, taken in isolation, require reversal of this case. My research has not revealed, nor has the majority cited to, any case in this Commonwealth in which it was held that the trial court improperly bullied the jury into reaching a verdict. In fact, historically, trial courts have been given great latitude in this area. In Commonwealth v. Tenbroeck, 265 Pa. 251, 108 A. 635 (1919), our Supreme Court stated

The jury, after 48 hours’ deliberation, came into court and reported their inability to agree upon a verdict, whereupon the trial judge explained the nature of the case and importance of reaching a verdict and said, “you must agree/’ but added
If some one of you should become physically unable to remain, the situation would be different; but as long as you are physically able to remain, it is your duty to undertake to agree.
He also expressed great sympathy for the jury, and enjoined them to continue their deliberations. Considering, as we must, all that the judge said, it did not constitute such a coercion of the jury as to invalidate the verdict.

265 Pa. at 256-57, 108 A. at 637 (emphasis added).

Further, in Commonwealth v. McCoy, 219 Pa.Super. 298, 279 A.2d 237 (1971), this Court affirmed appellant’s judgment of sentence where the trial court instructed the jury that “I trust that you will find your task not one of which you are hopelessly divided ... [sjhould you be unable to. agree, as disappointing and undesirable as such disagreement might be ... [vjerdicts are very important in this case.” 219 Pa.Super. at 303, 279 A.2d at 239. Finally, in Commonwealth v. Fowler, 259 Pa.Super. 314, 393 A.2d 844 (1978), the judge told an undecided jury that “I think you have to go back out again and start deliberating again. Make sure that you have this done right.” 259 Pa.Super. at 317, 393 A.2d at 845. There, six judges of this Court were equally divided and, consequently, appellant’s judgment of sentence was affirmed. The three judges who voted to affirm, however, found that “the statement of the trial judge cannot be said to have had the coercive impact on jurors in this case similar to the ‘Allen’ type charge.” Id. at 318-19, 393 A.2d at 846. In light of the above, it is clear that our state’s appellate courts have demonstrated a preference for allowing the trial court wide latitude in this area. As such, I cannot find that, in the instant case, the trial judge’s supplemental comments, when taken in isolation, require that the jury’s verdict be rendered void.

Even if the judge’s supplemental comments were alone coercive, the verdict must still stand. In Commonwealth v. Hammond, 350 Pa.Super. 477, 504 A.2d 940 (1986), this Court stated that

we cannot base a finding of error on isolated sentences that are without any context; it is tine effect of the jury charge of a whole that is controlling. When the jury instructions are read as a whole, it is clear that the dissenting jurors were not coerced into adopting a view not truly their own. The judge stated repeatedly that the jurors should not give in to their peers simply for the sake of ending the trial; “... none of you should surrender an honest conviction ... merely for the purpose of reaching a verdict.” While this might not be quite as strong as stating outright that jurors are free to disagree, such explicit language is not a necessary part of jury instructions.

350 Pa.Super. at 480, 504 A.2d at 941 (emphasis added) (citations omitted).

Instantly, prior to uttering the remarks that the majority has found offensive, the trial court originally instructed the jury as follows:

Your verdict must be unanimous. That means in order to return to this court with a verdict, each of you must agree to [that] verdict. You have a duty tti consult with each other with a view towards reaching an agreement, but only if you can do so without doing any violence to your own individual judgment. Each of you must decide this case for him or herself. But only after there has been fair and impartial deliberation with your fellow jurors.
In the course of deliberation each juror should not hesitate to reexamine his or her view or change his or her mind if convinced it is erroneous. However, no juror should surrender the weight or effect of their conviction merely because it may differ from their fellow jurors or they might be in the minority or for the mere purpose of returning a unanimous verdict.

N.T. 5/11/94, at 177-178 (emphasis added).

Incredibly, the majority totally discounts the above statements, finding instead that “the instruction in question nullified any effect the prior instruction may have had.” Majority opinion at 602. I disagree. The jury had been deliberating for only an hour and a half when the judge informed it that he would not declare it hung. In light of the proximity of the judge’s original instructions to his questioned comments, it is clearly not only proper, but also necessary, to review the former in determining the latter’s effects upon the jury. As such, in reading the jury charge as a whole, I cannot find that the trial court “committed a clear abuse of discretion or an error of law which controlled the outcome of the case.” Commonwealth v. Cook, 383 Pa.Super. 615, 620, 557 A.2d 421, 424 (1989) (quoting Cucchi v. Rollins Protective Services, 377 Pa.Super. 9, 20, 546 A.2d 1131, 1136 (1988)).

Finally, even ignoring all of the above, the majority’s decision is still flawed. Regardless of whether the trial court’s instruction was, in fact, proper, my review of the record indicates that Edmondson failed to object to the questioned statements. As such, this issue has been waived. In Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974), our Supreme Court stated

The proper functioning of our guilt determining process neither requires nor assures a defendant an errorless trial. A defendant is, however, entitled to a fair trial free of such trial errors as his trial counsel timely sought to have corrected by calling them to the court’s attention. Trial errors are made in the courtroom and it is there that the correction process should at least be initiated.
The defense may not successfully complain of trial errors for the first time only after the jury has returned a verdict of guilty, unless the errors were initially challenged at trial, and thereby preserved on appeal---- [To hold otherwise] encourages defense counsel to sit by silently without calling errors to the trial court’s attention until after the guilty verdict is returned. [Such an] approach places the appellate court in the role of a super-trial-defense counsel.

458 Pa. at 420, 326 A.2d at 273 (emphasis original) (quoting Commonwealth v. Williams, 432 Pa. 557, 569-570, 248 A.2d 301, 307 (1968) (Roberts, J., dissenting)). Further, in Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974), our Supreme Court stated that

The ill-prepared advocate’s hope is that an appellate court will come to his aid after the fact and afford him relief despite his failure at trial to object to an alleged error.... Failure to interpose a timely objection at trial denies the trial court the chance to hear argument on the issue and an opportunity to correct error----
Requiring a timely specific objection to be taken in the trial, court will ensure that the trial judge has a chance to correct alleged trial errors. This opportunity to correct alleged errors at trial advances the orderly and efficient use of our judicial resources.

457 Pa. at 257-59, 322 A.2d at 116.

In light of the above, it is clear that, by failing to object to the trial court’s statements, Edmondson has waived this issue for appeal. Commonwealth v. Wallace, 475 Pa. 27, 379 A.2d 558 (1977); Commonwealth v. Russell, 459 Pa. 1, 326 A.2d 303 (1974); Clair, supra; Dilliplaine, supra; Commonwealth v. Weaver, 384 Pa.Super. 231, 558 A.2d 97 (1989), alloc. denied, 524 Pa. 627, 574 A.2d 69 (1990). The majority rewards the defendant’s dereliction by granting him a new trial. This is clearly inappropriate.

Since I am convinced that the majority’s approach is deficient on a number of grounds, I must dissent.

      . The possession of a controlled substance conviction merged with the count of possession with intent to deliver, and the resisting arrest conviction merged with the aggravated assault count.

      . Appellant also raised the following issues which we need not address: whether the verdict was against the weight of the evidence; and whether the sentence imposed was manifestly excessive.

      . In Allen, the trial judge instructed the jury substantially as follows:
      [I]n a large proportion of cases[,] absolute certainty could not be expected; that, although the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusion of his fellows, yet they should examine the question submitted with candor, and with a proper regard and deference to the opinions of each other; that it was their duty to decide the case if they could conscientiously do so; that they should listen, with a disposition to be convinced, to each other’s arguments; that, if much the larger number were for conviction, a dissenting juror should consider whether his doubt was a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself.

        Allen, supra at 501, 17 S.Ct. at 157.

      . See also, Commonwealth v. Fowler, 259 Pa.Super. 314, 393 A.2d 844 (1978) (The trial court told an undecided jury that "I think you have to go back out again and start deliberating again. Make sure that you have this done right.” Amongst a divided court, three judges voted to reverse stating that the trial court’s admonition was "tantamount to the disfavored Allen charge.” Id. at 852).

      . Although the trial court did give such an instruction prior to deliberation, we find that the instruction in question nullified any effect the prior instruction may have had.

      . The American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating To Trial By Jury, § 5.4(a) and (b) provide:
      (a) Before the jury retires for deliberation, the court may give an instruction which informs the jury:
      (i) that in order to return a verdict, each juror must agree thereto;
      (ii) that jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment;
      (iii) that each juror must decide the case for himself, but only after an impartial consideration of the evidence with his fellow jurors;
      (iv) that in the course of deliberations, a juror should not hesitate to reexamine his own views and change his opinion if convinced it is erroneous; and
      (v) that no juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors, or for the mere purpose of returning a verdict.
      (b) If it appears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give or repeat an instruction as provided in subsection (a). The court shall not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals.

        Spencer, 275 A.2d at 304; Fowler, 393 A.2d at 851-852.

      . We reverse the judgment of sentence on all charges because it is impossible to tell from the record whether the trial judge’s comments tainted the jurors’ verdict on the other charges as well.