author: CIRILLO, President Judge: FORD ELLIOTT, Judge,

text:
    584 A.2d 956
    COMMONWEALTH of Pennsylvania v. James E. HYATT, Appellant.
    Superior Court of Pennsylvania.
    Argued March 14, 1990.
    Filed Dec. 14, 1990.
    Reargument Denied Jan. 28, 1991.

      Mariann E. Jarvis-Luksik, Pittsburgh, for appellant.
    Edward M. Clark, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before CIRILLO, President Judge, and FORD ELLIOTT and BROSKY, JJ.
   CIRILLO, President Judge:

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Allegheny County against appellant, James E. Hyatt. Following a jury trial, Hyatt was convicted of one count of rape. He filed timely post-trial motions which were denied and thereafter the court imposed sentence. In this appeal, Hyatt raises ten issues for our consideration:

1. Did the trial court err in failing to suppress evidence seized from defendant’s vehicle without a search warrant?
2. Did the trial court err in failing to suppress evidence seized from defendant’s person, without a warrant and without defendant’s voluntary consent?
3. Did the trial court err in sua sponte giving a jury instruction on evidence of flight by defendant?
4. Did the trial court err in failing to instruct the jury on evidence of other crimes or improper conduct by defendant?
5. Did the trial court err in quashing defendant’s subpoena duces tecum to Pittsburgh Action Against Rape?
6. Did the trial court err in denying a new trial where the verdict was inconsistent?
7. Did the trial court err in disallowing defense cross examination of the alleged victim concerning surgery which she underwent prior to the alleged crime?
8. Did the trial court err in denying examination of alleged victim regarding bias or motivation?
9. Did the trial court err in refusing to grant defendant’s request for jury voir dire?
10. Did the trial court err in failing to grant defendant’s demurrer to Commonwealth’s case in chief?

Upon review, we conclude that Hyatt’s fifth claim is meritorious and requires vacatur of his judgment of sentence. Therefore, we address only that issue.

Hyatt claims that the trial court erroneously quashed his subpoena duces tecum which he served upon Pittsburgh Action Against Rape (“PAAR”), the rape crisis center where the rape victim received counselling. The subpoena directed PAAR to produce its file concerning the rape victim. Hyatt claims that he served the subpoena so that PAAR would produce in court “any and all of its records in its possession for examination by the court to discern if any exculpatory material may have been contained therein.” PAAR refused to accept the subpoena and made an oral motion to quash the subpoena at a hearing before the Honorable Jeffrey A. Manning. At the hearing, Hyatt was permitted to question Molly Knox, the director of PAAR, only about the type of information usually maintained in PAAR file; he was not permitted to question Knox with respect to any specific information contained in the victim’s records. Subsequently, the trial court granted PAAR’s motion to quash.

In its opinion in support of its decision to grant the motion to quash, the trial court stated that it had heard testimony from Knox regarding the information routinely developed by PAAR during its counselling sessions. The court stated, “no substantially verbatim statements by the victim exist or are maintained by PAAR; nor does any material exist which could be considered as such; nor does the victim adopt as her own, any information written or recorded by PAAR’s sexual assault counselors.” The trial court concluded that the information contained in the files could not be deemed material evidence under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Therefore, the trial court reasoned, it was unnecessary to conduct an in camera review of the victim’s PAAR records.

Hyatt claims that it was erroneous for the trial court to refuse to conduct an in camera review of the file and for the trial court to preclude him from reviewing, or questioning Knox about, the victim’s file. Hyatt contends that the trial court’s actions contravene the mandates of Commonwealth v. Wilson, 375 Pa.Super. 580, 544 A.2d 1381 (1988), alloc. granted, 525 Pa. 582, 575 A.2d 113 (1990). We agree.

The facts in Wilson are remarkably similar to those in the case at bar. Wilson was convicted of the rape and indecent assault of a woman. The day after the assault the victim went to Alice Paul House (“APH”), a rape crisis center, and was interviewed by staff members. Prior to trial, Wilson served a subpoena duces tecum on the director of APH, requesting production of their records. APH filed a petition to quash the subpoena, stating that the records were confidential pursuant to 42 Pa.C.S. § 5945.1. The trial court granted APH’s motion.

On appeal, Wilson claimed that section 5945.1 was inapplicable and, in the alternative, if it was applicable it was unconstitutional. We examined our supreme court’s decision in In the Matter of Pittsburgh Action Against Rape, 494 Pa. 15, 428 A.2d 126 (1981), a case decided prior to the enactment of section 5945.1, in which the court refused to create an absolute privilege of confidentiality for communications between a rape counselor and victims seeking aid. Id., 494 Pa. at 26, 428 A.2d at 131. The court, in In the Matter of Pittsburgh, stated that

upon defense request a court should authorize defense inspection of only those statements of the complainant contained in the file which bear upon the facts of the alleged offense. The court, however, must not permit defense inspection of statements having no bearing on the facts of the counselling services PAAR provides. The trial court shall not permit defense review of any other aspect of the file.

In the Matter of Pittsburgh, 494 Pa. at 19, 428 A.2d at 127-28 (emphasis added). We noted that our supreme court in In the Matter of Pittsburgh also required the trial court conduct its review of the PAAR file in camera so that “... only those statements of the complainant, and not interpretations or recollections of the PAAR counsellor, are to be made available.” Id., 494 Pa. at 28, 428 A.2d at 132. The court limited the term “statements” to include only “verbatim accounts of the complainant’s declarations and notes that the complainant has approved as accurately reflecting what she said.” Id., 494 Pa. at 28, 428 A.2d at 132.

In Wilson, we further cautioned that only statements having a direct bearing to the facts of the alleged offense may be released, and not those relating to counselling services. Wilson, 375 Pa.Super. at 583, 544 A.2d at 1383. Prior to reaching our conclusion in Wilson, we noted that section 5945.1 grants sexual assault counselors a privilege “not to be examined as a witness in any civil or criminal proceeding without prior written consent of the victim being counselled.” Id., 375 Pa.Superior Ct. at 583, 544 A.2d at 1383; see 42 Pa.S.C. § 5945.1. We then concluded that section 5945.1 was inapplicable to the facts in Wilson because defense counsel had sought only the pretrial examination of certain materials in the possession of the rape crisis center and never sought to examine any counselor as a witness. Id., 375 Pa.Superior Ct. at 584, 544 A.2d at 1383 (emphasis added). See also Commonwealth v. Samuels, 354 Pa.Super. 128, 511 A.2d 221 (1986) (when defense counsel does not seek to examine a rape crisis counselor as a witness section 5945.1 is inapplicable). Accordingly, we found the principles set forth in In the Matter of Pittsburgh, supra, to be controlling. As a result we vacated Wilson’s judgment of sentence and remanded the case to the trial court for an in camera hearing. We stated:

If the court concludes that any or all of the materials released to it by APH are statements of the complainant that should have been disclosed to appellant and heard by the jury, then a new trial shall be granted. If, however, the court concludes that the materials are not statements of the complainant or are statements relating only to counselling services, and thus outside the scope of defense review, the court shall reimpose sentence.

Id., 375 Pa.Superior Ct. at 585, 544 A.2d at 1384.

Most recently, in Commonwealth v. Aultman, 387 Pa.Super. 113, 563 A.2d 1210 (1989), alloc. granted, 525 Pa. 575, 575 A.2d 107 (1990), this court followed Wilson and concluded that it was reversible error for the trial court to quash the portion of a subpoena, served by Aultman upon Women Against Rape (“WAR”) personnel, directing a WAR employee to bring to trial all the records pertaining to the victim. Id., 387 Pa.Superior Ct. at 122, 563 A.2d at 1215.

Aultman claimed that section 5945.1 was inapplicable because he was not seeking to examine a counselor but only attempting to obtain records. We agreed, and noted that in Samuels, supra, we had stated that section 5945.1 is inapplicable when defense counsel is not seeking to examine a counselor as a witness. Id., 387 Pa.Superior Ct. at 122, 563 A.2d at 1215. Further, we noted that Samuels held that because the trial court, in its review of appellant’s post-trial motions, had examined the PAAR records and found that they contained no statements made by the victim, appellant was not prejudiced by the trial court’s improper quashal of the subpoena. In Aultman, we distinguished Samuels and concluded that because the trial court in Aultman never conducted an in camera review of the records, it, like the trial court in Wilson, had committed reversible error. Id., 387 Pa.Superior Ct. at 124, 563 A.2d 1216.

In this case, Hyatt has sought only the victim’s PAAR records and we conclude, therefore, that section 5945.1 is inapplicable. Accordingly, we find that the supreme court’s decision in In the Matter of Pittsburgh is dispositive. Pursuant to In the Matter of Pittsburgh we vacate the judgment of sentence and remand the case so that the trial court may conduct an in camera review to determine if there are any statements of the victim in the PAAR records which “bear upon the facts of the alleged offense.” Wilson, 375 Pa.Super. at 583, 544 A.2d at 1383. If the court concludes that any or all of the materials released to it by PAAR contain statements of the victim that should have been disclosed to Hyatt and heard by the jury, then a new trial shall be granted. If, on the other hand, the trial court determines that the materials do not contain statements of the complainant or contain statements relating only to counselling services, and thus are outside the scope of defense review, then the court shall reimpose sentence.

Judgment of sentence vacated and case remanded.

FORD ELLIOTT, J., files a concurring opinion.

FORD ELLIOTT, Judge,

concurring:

As I agree that the issue on which the majority reverses is controlled by this Court’s decisions in Commonwealth v. Wilson, supra, and Commonwealth v. Aultman, supra, I concur in the result reached by the majority. But I do so under protest and with strong reservations about the absurdity of such a result.

As set out by the majority, In the Matter of Pittsburgh Action Against Rape, supra, the supreme court declined to find a common law privilege for communications between PAAR personnel and persons seeking PAAR’s assistance. The court recognized the important interests involved—society’s interest in promoting such communications and its concurrent interest in the truth-seeking function of the criminal justice system. The court then tipped the balance in favor of the rights of the accused thereby creating only a qualified privilege which allowed that statements by the complainant that bear on the facts of the alleged offense, which are contained in the rape crisis counselor’s file, are subject to disclosure to the defendant. The remainder of the file was to remain confidential. Implicit in this decision was a recognition that because only a qualified privilege of confidentiality was recognized, it was subject to being balanced against a defendant’s confrontation rights. However, also implicit in this decision, although not specifically recognized, was that the privilege itself effectively is destroyed by any in camera review by the trial court in making its determination of whether such statements exist. As noted by Justice Larsen, in dissent, in PAAR:

A breach of this right of privacy occurs when the information is transmitted to another, whether or not that person (recipient) promises not to further transmit the information to others. It is knowledge of private and personal matters by another that is offensive—not that the knowledge may or may not continue on a course of travel to yet another eager ear.’ In re June 1979 Allegheny County Investigating Grand Jury, 490 Pa. 143, 415 A.2d 73, 79 (1980) (from dissenting opinion of Justice Rolf Larsen). This breach is no less severe because an inspection of the confidential communication has been made in camera. Under the procedure required by the majority, the confidential disclosures would be made available to the trial court, and at that moment, the confidence is broken, the trust in the relationship is shattered. And, the more sensitive the nature of the communication, the greater the need for protection.

In re PAAR, supra, 494 Pa. at 60-61, 428 A.2d at 149 (emphasis added).

It was in response to the PAAR holding, that the legislature that same year established an absolute privilege concerning confidential communications between a rape victim and a sexual assault counselor by enacting 42 Pa.C.S. § 5945.1:

§ 5945.1 Confidential communications to sexual assault counselors
(a) Definition.—As used in this section the following words and phrases shall have the meanings given to them in this subsection:
“Rape crisis center.” Any office, institution or center offering assistance to victims of sexual assault and their families through crisis intervention, medical and legal accompaniment and follow-up counselling. “Sexual assault counselor.” A person who is engaged in any office, institution or center defined as a rape crisis center under this section, who has undergone 40 hours of training and is under the control of a direct services supervisor of a rape crisis center, whose primary purpose is the rendering of advice, counseling or assistance to victims of sexual assault.
“Victim.” A person who consults a sexual assault counselor for the purpose of securing advice, counseling or assistance concerning a mental, physical or emotional condition caused by a sexual assault.
(b) Privilege.—A sexual assault counselor has a privilege not to be examined as a witness in any civil or criminal proceeding without the prior written consent of the victim to the counselor or as to any advice, report or working paper given or made in the course of the consultation.

The purpose of the privilege enunciated in § 5945.1 is to protect the rape victim’s privacy interests, promote the societal interest in rehabilitating victims, encourage the reporting of the crime of rape, and monitor the institutions with which rape victims must deal. See New Privilege for Communications made to a Rape Crisis Center Counselor, 55 Temple L.Q. 1124 (1982).

Now some nine years later, this court has limited this legislatively created privilege by deciding, as we do today, that § 5945.1(b) only grants a sexual assault counselor a privilege not to be called to testify in a court proceeding without the consent of the victim, and that this privilege does not extend to the file, working papers or records specifically generated as a result of the confidential relationship between counselor and victim. The incongruity of this interpretation was reflected upon by the trial court herein when it read the plain meaning of § 5945.1 to indicate that “it makes little sense that a statute designed to grant a privilege of confidentiality for any communication between a rape victim and a counselor would not further protect the records or reports made by that counselor in the course of his or her counselling efforts.” Trial court opinion, 7/10/89 at 16. The issue as decided by this court effectively allows a defendant to obtain through the back door what is barred by the front. To hold that § 5945.1 is only testimonial in nature, we have usurped the purpose and function of the statute. The irony of this interpretation, is that as a practical matter, and strategically, it may be far more beneficial to a defendant to make use of cold statements, reports, and written impressions of the victim without being required to receive the testimony of a live witness-counselor whose version and interpretation of these statements, reports and impressions would be skewed in favor of the victim. In point, why would you want the counselor, if you can have the records.

Our majority holding today, like those that came before it, renders the relationship between the rape victim and the counselor “ineffective either because a person is deterred from entering into it or because the person is frightened into non-disclosure during its course.” In Re PAAR, supra, 494 Pa. at 36-37, 428 A.2d at 136-37 (Larsen, J. dissenting). Rape crisis counseling often acts as the trauma center for rape victims where counselors must react quickly to treat the physical and emotional injuries of rape, so that long term treatment may take place. The compelling public interest in allowing the rape crisis counseling to occur is not to build a case for the prosecution, but rather to deal with the trauma of violent assault and begin the healing process. In fact, this treatment is quite often anything but a search for the truth. Of necessity, the nature of the counselling will be at times torturous, self accusatory and even self destructive—such is the nature of the healing process. In enacting an absolute privilege of confidentiality to shield this healing process the legislature recognized that the interest being served was the rehabilitation of the victim and not the vindication of the interests of society which is the aim of prosecution. Put in this context, these are not competing interests, but rather mutually exclusive ones. To say that they can be balanced is to deny they are mutually exclusive.

The current state of the law is reflective of the inadequate legal response to a rape victim’s needs and interests. It seems ironic at this moment in time, some nine years after PAAR was decided, to be harkening back to Justice Larsen’s dissent, joined in by Justice Flaherty, which advocated the need for a broad interpretation of the privilege between counselor and victim. The rationale presented in that dissent could not be elaborated more eloquently on herein, and therefore, I incorporate it by reference. In re Paar, supra, 494 Pa. at 34, 428 A.2d at 135 (Larsen, J. dissenting).

In sum, the dissent noted that in the not too distant past, rape was treated very differently than other crimes in society in that focus was placed not just on the defendant but on the victim, as well. Rape victims were very often stigmatized in our society. In order to circumvent a false accusation of rape, the law of this Commonwealth at one time referred to the rape complainant as the “prosecutrix”, required corroborating evidence, and special jury instructions concerning the victim’s emotional vulnerability. Id. Moreover, the laws of this state had required prompt reporting of a rape, reasonable resistance by the victim, and even though it was not permissible to scrutinize a rape victim’s prior sexual history, a learned defense counsel was always permitted to raise a question of the victim’s reputation in the mind of the jury. Id. Such laws were premised on the myth surrounding rape that the victim got what she wanted. Accordingly, often times the legal structure degraded the victim all over again, in the courtroom, in responding to the initial assault. After having evolved socially and legislatively to the point of codifying an absolute privilege concerning confidential communications between a rape victim and a sexual assault counselor, to now take a step back in time is not only offensive, but should be repugnant to an enlightened society.

I see no sufficient reason, and no decision of this court has provided a policy basis, for distinguishing between the records of a rape crisis counselor and those of a psychiatrist or psychologist. In this court’s decision in Commonwealth v. Kyle, supra, relied upon by the trial court, we held that the file of a psychologist was privileged absolutely from disclosure to the defendant in a rape case. The wording of the privilege addressed in Kyle read very much the same as 42 Pa.C.S. § 5945.1.

42 Pa.C.S. § 5944. Confidential Communications to licensed psychologists.

No person who has been licensed under the act of March 23, 1972 (P.L. 136, No. 52), to practice psychology shall be, without the written consent of his client, examined in any civil or criminal matter as to any information acquired in the course of his professional services in behalf of such client. The confidential relations and communications between a psychologist and his client shall be on the same basis as those provided or prescribed by law between an attorney and client.

Amended February 20, 1990, to include psychiatrists, 42 Pa.C.S. § 5944, Confidential communications to Psychiatrists or Licensed Psychologists. Recognizing that this privilege was testimonial in nature, the court in Kyle, reasoned that the real interest sought to be protected by the privilege was the confidential communications between the client and psychologist; therefore, the psychologist’s records which memorialized such communications were subject to the privilege as well.

The Kyle court also rejected the defendant’s request for in camera review of the file by the trial court and reaffirmed that an absolute privilege by definition may not be subject to a balancing test.

Finally, appellant argues that without even an in camera inspection of the file by the court, it cannot be determined whether any statements made by the victim would be helpful to the defense. We decline to compromise what we have determined is an absolute privilege from disclosure. As we noted above, the purpose of the psychologist-client privilege is to aid in the effective treatment of the client by encouraging the patient to disclose information fully and freely without fear of public disclosure. We deem this purpose and the underlying considerations to be of paramount concern. Subjecting the confidential file to in camera review by the trial court (as well as the appellate courts and staff members) would jeopardize the treatment process and undermine the public interests supporting the privilege. Simply stated, an absolute privilege of this type and in these circumstances requires absolute confidentiality.

Commonwealth v. Kyle, supra, 367 Pa.Super. at 505, 533 A.2d at 131. I would submit that this same cogent reasoning applies to the privilege enacted to protect the confidential communications to sexual assault counselors.

I could, I think, make a persuasive argument on solid grounds of statutory interpretation that the language of § 5945.1 is at the very least, ambiguous, and that we must therefore look to the intent of the legislature; (1 Pa.C.S. § 1921) and in so doing we must accept that the legislature did not intend a result that is absurd. (1 Pa.C.S. § 1922). A resulting interpretation would posit that the privilege exercised by the counselor is twofold: not to be examined as a witness in any civil or criminal proceeding without the prior written consent of the victim; and, a privilege as to any advice, report or working paper given or made in the course of consultation. This reading would of course bring the records in question in this case within the purview of the privilege and also would speak in a more rationale way to the intent of the legislature in designing the privilege in the first instance. After all, in PAAR the rape crisis counselor was found in contempt not for refusing to testify—but for failing to release her records to the court.

As the statute already has been subject to a different interpretation by this court, I recognize that I am bound by that reading. However, a statute defining an absolute privilege should not be ambiguous; therefore, I call upon the legislature to set about to clarify the statute and to reaffirm its recognition of the needs and interests of the rape victim in our society. For at present, the privilege it sought to establish through 42 Pa.C.S. § 5945.1 as a safe haven for the healing process of victims of violence has now become an island unto itself to which no victim dare return.

As of this writing, the supreme court has accepted review in both the Wilson and Aultman cases relied upon by this court. It is hoped that these cases may provide a vehicle for our highest court to reinstate the intent of our legislature, and to once again create a healing environment in our Commonwealth for victims of violence. However, until such time as this should occur, sexual assault counselors would be wise to advise their clients that anything they say can and will be used against them in a court of law.

      . The trial court stated that the holding in Wilson is in conflict with our earlier decision in Commonwealth v. Kyle, 367 Pa.Super. 484, 533 A.2d 120 (1987). In Kyle, this court upheld the trial court’s decision denying defense counsel access to the file prepared on the victim by a psychologist. The court held that pursuant to 42 Pa.C.S. § 5944 the psychologist’s records were privileged communications. Id., 367 Pa. Superior Ct. at 504, 533 A.2d at 130. In the instant case, Judge Manning stated that "in view of Kyle as well as the plain meaning of section 5945.1(b), it makes little sense that a statute designed to grant a privilege of confidentiality for any communication between a rape victim and a counselor would not further protect the records or reports made by that counselor in the course of his or her counselling efforts.”

      . Following In the Matter of Pittsburgh, our legislature enacted 42 Pa.C.S. § 5945.1 which grants a testimonial privilege to sexual assault counselors. Section 5945.1 states the following:
      § 5945.1 Confidential communications to sexual assault counselors (a) Definition.—As used in this section the following words and phrases shall have the meanings given to them in this subsection:

        “Rape crisis center." Any office, institution or center offering assistance to victims of sexual assault and their families through crisis intervention, medical and legal accompaniment and follow-up counselling.

        "Sexual assault counselor." A person who is engaged in any office, institution or center defined as a rape crisis center under this section, who has undergone 40 hours of training, and is under the control of a direct services supervisor of a rape crisis center, whose primary purpose is the rendering of advice, counseling or assistance to victims of sexual assault.

        ‘‘Victim.” A person who consults a sexual assault counselor for the purpose of securing advice, counseling or assistance concerning a mental, physical or emotional condition caused by a sexual assault.

        “Confidential communication.” Information transmitted between a victim of sexual assault and a sexual assault counselor in the course of that relationship and in confidence by a means which, so far as the victim is aware, does not disclose the information to a third person other than those who are present to further the interests of the victim in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or an accomplishment of the purposes for which the sexual assault counselor is consulted. The term includes all information received by the sexual assault counselor in the course of that relationship.
      (b) Privilege.—A sexual assault counselor has a privilege not to be examined as a witness in any civil or criminal proceeding without the prior written consent of the victim to the counselor or as to any advice, report or working paper given or made in the course of the consultation.

      . In the event that a counselor would reveal confidential information to a prosecutor or in any active way use the relationship with the alleged victim to further the aims of the prosecution, then the privilege is breached and the defendant is entitled to take advantage of that breach.

      . But see Commonwealth v. Lloyd, 523 Pa. 427, 567 A.2d 1357 (1989), wherein, the supreme court held that psychotheraputic records of a minor victim of sexual assault in the possession of a hospital were subject to review by the defendant under the rights of confrontation and compulsory process as defined in Article 1, § 9 of the Pennsylvania Constitution. However, these records already had been subject to in camera review by the trial court and therefore presumably were no longer subject to any privilege. The issue of the privileged nature of the records was raised by the dissenting opinion, however, this issue was never addressed by the majority.

      . The reasoning in Kyle also is applicable as to any number of other statutory privileges, which are testimonial in nature, and provide protection from disclosure of confidential information. See 42 Pa. C.S. § 5929, Physicians not to disclose information, 42 Pa.C.S. § 5943, Confidential communications to clergymen, and 42 Pa.C.S. § 5945, Confidential communications to school personnel.


source: Caselaw Access Project

author: ROWLEY, Judge:

license: Public Domain

text:
    584 A.2d 964
    Edward F. DROHAN, Appellant, v. SORBUS, INC., Bell Atlantic Corporation, Louis Ross, Joseph Molnar, John T. Valentino, Thomas Nolan, and Michael Chamberlain.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1990.
    Filed Dec. 17, 1990.

      Edward J. O’Malley, Wayne, for appellant.
    Jon A. Baughman, Philadelphia, for appellees.
    Before ROWLEY, McEWEN and CERCONE, JJ.
   ROWLEY, Judge:

After his employment with appellee Sorbus, Inc. (“Sorbus”), ended, appellant Edward F. Drohan filed a six-count complaint against Sorbus and the additional defendants/appellees named herein, alleging interference with contract, intentional infliction of emotional harm, breach of contract, wrongful discharge, and violations of the Racketeer Influenced and Corrupt Organizations (RICO) Act, 18 U.S.C. §§ 1961-1968. In its order of December 20, 1989, the trial court sustained appellees’ preliminary objections to appellant’s claims of RICO violations and wrongful discharge. In this timely appeal, appellant contends that the trial court erred in doing so. For the reasons set forth below, we affirm the order of the trial court.

The well-pleaded facts of the case, as set forth in appellant’s amended complaint and summarized by the trial court, are as follows: In 1983 appellant began working for Sorbus, a computer maintenance firm, as vice president of marketing. Defendant/appellee Bell Atlantic Corporation (“Bell”) acquired Sorbus in 1985. Either Bell or Sorbus then executed an employment agreement with appellant.

Appellant began questioning and attempting to reform Sorbus’ commission programs, which were controlled by defendants/appellees Thomas Nolan, Michael Chamberlain, and Joseph Molnar. Appellant also requested that Sorbus’ business practices involving Jacom, a New York company, be investigated. Defendants/appellees Joseph Molnar, John Valentino, and Louis Ross repeatedly rejected appellant’s requests.

As a result of appellant’s efforts, the individual appellees began trying to force appellant to leave Sorbus. Appellant was eventually forced to choose between a demotion, in the form of a transfer to a position that was slated for elimination, or the termination of his employment with Sorbus. This “transfer or terminate” choice was also presented to other Sorbus employees who challenged appellees’ methods. Appellant’s employment with Sorbus terminated on February 28, 1988. Although Bell had acquired knowledge of these events by February 1988, it took no action against the individual appellees.

In his amended complaint appellant stated the following counts:

Count I: RICO violations based on 18 U.S.C. § 1962(c), against all defendants
Count II: RICO violations based on 18 U.S.C. § 1962(d), against all defendants
Count III: interference with contract, against Nolan, Molnar, Valentino, and Chamberlain
Count IV: intentional infliction of emotional harm, against all defendants
Count V: breach of contract, against Sorbus
Count VI: wrongful discharge, against Sorbus

In its order of December 20, 1989, the trial court sustained the preliminary objections in the nature of demurrers filed by all defendants to Counts I, II, and IV; sustained, as to the claim for breach of an oral contract, the preliminary objection in the nature of a demurrer filed to Count III by the defendants named therein, but overruled the same with respect to the claim for breach of a written contract; sustained the motion of the same defendants to strike Count III for failure to attach copies of writings as required by Pa.R.C.P. 1019(h); sustained the preliminary objections in the nature of demurrers to Counts V and VI filed by defendant Sorbus; dismissed all causes of action against Bell and against Louis Ross; and granted plaintiff, appellant herein, leave to replead Counts III, IV, and V within twenty (20) days. The effect of the court’s order was to preclude appellant from proceeding with his claims based on allegations of RICO violations (Counts I and II) and wrongful discharge (Count VI). Appellant then filed this timely appeal.

I. APPEALABILITY

Because the question of appealability concerns the jurisdiction of the appellate court, a non-waivable matter, we may raise such an issue sua sponte even where, as in the present case, the parties have not done so. Fried v. Fried, 509 Pa. 89, 91, 501 A.2d 211, 212 (1985). As a general rule, where, as here, an order dismisses some but not all counts of a multi-count complaint, the order is interlocutory and not appealable. Praisner v. Stocker, 313 Pa.Super. 332, 337, 459 A.2d 1255, 1258 (1983) (en banc). Such an order is final, however, if the dismissed counts do not merely state alternate theories for recovery, but instead state causes of action that are separate and distinct from the remaining counts. Id., 313 Pa.Superior Ct. at 341-42, 459 A.2d at 1260.

In determining whether an order is final and appealable, “[a] pivotal consideration ... is whether the plaintiff aggrieved by [the order] has, for purposes of the particular action, been put ‘out of court’ on all theories of recovery asserted against a given defendant for a given loss.” Sweener v. First Baptist Church of Emporium, 516 Pa. 534, 539, 533 A.2d 998, 1000 (1987). Put differently, we consider whether the claims that have been dismissed and the claims that remain “request different relief for different harms....” Daywalt v. Montgomery Hospital, 393 Pa.Super. 118, 122, 573 A.2d 1116, 1118 (1990). Consideration of the relief requested will resolve the question of finality in many cases; in other cases additional factors will have to be considered.

In order to determine whether the portions of the order at issue are final and appealable, therefore, we look first to the relief requested by appellant. In Counts I and II appellant alleges that he “has been injured in his business by reason of Defendants’ [RICO] violations,” and in each of those counts he demands a sum “in excess of $20,000.00 trebled as allowed by RICO, plus interest, costs, and attorney’s fees.” This measure of relief, which includes treble damages, is sought nowhere else in the complaint. In addition, the fact that the claims stated in Counts I and II are based upon statutory law indicate that they are separate and distinct from the remaining non-statutory claims. Gatten v. Merzi, 397 Pa.Super. 148, 150, 579 A.2d 974, 975 (1990); Hardy v. Pennock Insurance Agency, 365 Pa.Super. 206, 213, 529 A.2d 471, 475 (1987). We conclude, therefore, that the trial court’s order is final and appealable insofar as it precludes appellant from proceeding with Counts I and II.

In Count VI appellant states a claim for wrongful discharge against appellee Sorbus, his employer. Count III, alleging interference with contract, does not include Sorbus among the named defendants. Therefore, in order to determine whether the trial court’s order is final and appealable insofar as it precludes appellant from proceeding with Count VI, we compare Count VI to Counts IV, alleging intentional infliction of emotional harm against all defendants, including Sorbus, and Count V, alleging breach of contract against Sorbus.

In Count IV appellant alleged that the individual appellees’ “extreme and outrageous” conduct was intended to, and did, cause him to suffer severe emotional distress, and, alternatively, that the individual appellees’ actions were within the course and scope of their employment with Sorbus. He sought “compensatory and punitive damages in an amount in excess of $20,000.00, plus interest and costs of suit.”

Count V alleges that Sorbus breached its contract with appellant by refusing to pay him a thirty percent (30%) bonus for 1987, amounting to $24,000.00, as well as additional sums for accrued vacation days “and otherwise” to which he was entitled when his employment with Sorbus ended. In this count appellant claimed damages “in the amount of $24,000.00, plus the value of all benefits to which [he] was entitled, together with interest and costs.”

The essence of appellant’s claim against Sorbus in Count VI is that his termination “was caused and motivated by his objections to, and requests for an investigation of” the alleged wrongful conduct of appellees and was therefore in violation of the express and implied public policies of the Commonwealth. He sought damages “in an amount in excess of $20,000.00, plus interest and costs of suit.”

While the sole harm for which appellant sought relief in Count VI was his allegedly wrongful termination, the harms alleged in Counts IV and V are not so limited. Count V by its own terms states a different claim for relief, and Count IV can fairly be read to encompass conduct that preceded appellant’s termination. Therefore, as the harm alleged by appellant in Count VI is different from that alleged in the remaining counts against the same defendant, we conclude that the trial court’s order is final and appeal-able insofar as it precludes appellant from proceeding with Count VI.

II. CIVIL RICO

To understand the issues concerning Counts I and II of appellant’s complaint, it is necessary that we examine several provisions of the RICO Act. As the basis for his right to bring a civil action pursuant to the Act, appellant relies on § 1964(c):

Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney’s fee.

18 U.S.C. § 1964(c). 18 U.S.C. § 1962, “Prohibited activities,” a violation of which must underlie a civil action pursuant to § 1964(c), states in pertinent part as follows:

(a) It shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity or through collection of an unlawful debt in which such person has participated as a principal ... to use or invest, directly or indirectly, any part of such income, or the proceeds of such income, in acquisition of any interest in, or the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce ____
(b) It shall be unlawful for any person through a pattern of racketeering activity or through collection of an unlawful debt to acquire or maintain, directly or indirectly, any interest in or control of any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce.
(c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt.
(d) It shall be unlawful for any person to conspire to violate any of the provisions of subsections (a), (b), or (c) of this section.

Although § 1964(c) refers only to federal courts, state and federal courts exercise concurrent jurisdiction over civil actions brought under the Act. Tafflin v. Levitt, 493 U.S. 455,-, 110 S.Ct. 792, 799, 107 L.Ed.2d 887 (1990), reh’g denied, — U.S. -, 110 S.Ct. 1942, 109 L.Ed.2d 305 (1990).

The relationship between § 1962 and § 1964(c) is crucial. To recover under § 1964(c), a plaintiff is required to plead 1) that the defendants committed a violation of § 1962 and 2) that he or she suffered an injury to business or property by reason of such violation. The second of these pleading requirements is commonly referred to as “RICO standing.” Shearin v. E.F. Hutton Group, Inc., 885 F.2d 1162, 1164 (3d Cir.1989). As the United States Supreme Court has explained,

[a] plaintiff only has standing if, and can only recover to the extent that, he has been injured in his business or property by the conduct constituting the violation____ “A defendant who violates section 1962 is not liable for treble damages to everyone he might have injured by other conduct, nor is the defendant liable to those who have not been injured.”

Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496-97, 105 S.Ct. 3275, 3285, 87 L.Ed.2d 346 (1985) (citation omitted), quoted in Shearin v. E.F. Hutton, 885 F.2d at 1167. Nevertheless, § 1964 is to be liberally construed. Id. at 491 n. 10, 105 S.Ct. at 3282-83 n. 10.

In Count I of his amended complaint appellant alleged that appellees committed acts which constitute violations of § 1962(c). The alleged violations consisted of mail fraud, 18 U.S.C. § 1341, securities fraud, 15 U.S.C. § 78ff, violation of the Travel Act, 18 U.S.C. § 1952, and failing to withhold and remit sums to the federal and state governments, 26 U.S.C. § 7201 et seq. and 72 P.S. § 7353. The trial court found that because the harm suffered by appellant did not flow directly from these alleged “predicate acts” (Trial Court Opinion at 8), but instead resulted from Sorbus’ decision to fire or constructively discharge him, appellant lacked standing to recover on the basis of § 1962(c).

The trial court reached the same result with regard to Count II. Appellant alleged in Count II that the individual appellees conspired to, and did, engage in a pattern of racketeering activity in violation of § 1962(d), that, as a part of and in furtherance of that conspiracy, they committed certain specified acts “in order to conceal their activities, remove those who questioned those activities, and enable the conspiracy to continue,” and that as a result of appellees’ violation of § 1962(d) appellant was injured in his business, having suffered the loss of his position with Sorbus and impairment of his future earning ability. The trial court, however, cited federal case law to show that where a plaintiff failed to make a viable claim under § 1962(a), (b), or (c), a claim could not be made under § 1962(d). Therefore, the court held, appellant lacked RICO standing for Count II as well as Count I. The court acknowledged that in Williams v. Hall, 683 F.Supp. 639, 642 (E.D.Ky.1988), it was held that plaintiffs who had been discharged had standing if they could prove that their terminations were overt acts done in furtherance of a RICO conspiracy, but the court evidently found the contrary line of case law to be more persuasive.

Appellant contends in this appeal that the decision of the Third Circuit Court of Appeals in Shearin v. E.F. Hutton, supra, which was handed down after the submission of memoranda and oral argument in the trial court, mandates reversal of the court’s order with regard to Counts I and II. The plaintiff in Shearin contended that she was hired by Hutton Trust as “window dressing” in order to perpetuate the fraud that the firm was legitimate and that she was fired to preserve the same fraud after she refused to participate. While acknowledging that the U.S. Supreme Court in Sedima, supra, had discussed RICO standing only in terms of violations of §§ 1962(a) through (c), the Third Circuit nevertheless held that “[njothing in Sedima forecloses the possibility that harm arising from an act predicate to conspiracy, yet distinct from the racketeering acts listed in section 1961(1), might yet confer standing so long as the plaintiff has alleged a violation of section 1962(d).” Id. at 1169. In other words, “classic overt conspiracy acts” could qualify as predicate acts for § 1962(d) even if those acts did not in themselves constitute racketeering activity. Id. at 1169. The Court concluded that the plaintiff’s “hiring and firing plausibly constitute overt acts that not only would establish a conspiracy, but in this case were allegedly essential to it.” Id. at 1168. Although the Court went on to hold that plaintiffs hiring did not constitute an injury, it also held that the plaintiffs firing was an injury and that the injury had occurred “by reason of” the defendants’ violation of § 1962(d). Id. at 1168-70. Accordingly, the Court held that the plaintiff’s allegation that she had been fired in furtherance of a conspiracy in violation of 18 U.S.C. § 1962(d) stated a claim for relief under § 1964(c). Id. at 1170.

Appellant maintains that, like the plaintiff in Shearin, he was fired in furtherance of a conspiracy in violation of § 1962(d). As appellant makes no other argument on appeal, we conclude that he has abandoned any attempt to gain a reversal of the trial court’s ruling with regard to his claim based on alleged violations of § 1962(c). Appellees contend that the Third Circuit Court of Appeals erred in interpreting Sedima and that in any event appellant has failed to allege that the termination of his employment was caused by an overt act in furtherance of a RICO conspiracy.

To determine whether appellees’ latter claim is correct, we turn to the factual allegations stated in appellant’s amended complaint. First, appellant alleged in paragraphs 16-23 that from the start of his employment with Sorbus he questioned and attempted to reform the company’s commission programs, which he considered excessive and unfair. His position on commissions was opposed by appellees Nolan, Molnar, and Chamberlain, who benefited from the existing policies. As a result, they tried to undermine appellant by denying him information concerning sales activities and policies, directing field personnel to resist significant marketing programs, and interfering with subcontractor relationships. When appellant continued to oppose commission policies, appellee Ross, who was then president of Sorbus, implemented a reorganization the effect of which was to reduce appellant’s access to information concerning field activities, particularly the payment of commissions. Appellant was subsequently offered yet another position, which would have reduced his involvement with commission policies even further. Despite these changes, appellant was orally informed by appellee Ross, both privately and publicly, “that he had done an excellent job, that his new position was a promotion, and that there would be no adverse financial consequences to [him] as a result of that change.”

Second, appellant stated that he “is informed, believes and therefore avers that for a substantial period of time during his employment with Sorbus from at least April of 1985 through January of 1987, field personnel ... at the direction of Defendant Molnar, and with the knowledge and consent of Defendants Ross and Chamberlain, and later Valentino, paid cash bonuses to sales personnel on a regular and continuing basis from their personal funds, and then fraudulently inflated their expense accounts in an equal, offsetting amount.” According to appellant’s allegations in paragraphs 24-27, Sorbus claimed the fraudulent expense payments as deductions for federal and state income tax purposes and did not make the required withholding from the cash bonuses.

In a third group of allegations, set forth in paragraphs 28-31, appellant asserts that during the same period of time he repeatedly challenged and unsuccessfully requested an investigation into Sorbus’ practices with respect to Jacom, a New York-based company. Appellant objected to many of Jacom’s business practices on the ground that they improperly deprived Sorbus of revenues to which it was entitled, and he also objected to the preferential treatment of Jacom over another firm. Appellant alleged that his transfer was intended to reduce his access to information concerning, and his authority over, the situation involving fraudulent expense vouchers and the company’s dealings with Jacom.

Appellant then averred in paragraphs 32-38 that as part of “an ongoing effort to embarrass and harass [him] and force his departure from Sorbus,” he was made the subject of crude, humiliating, and defamatory remarks at two company events, he was advised in the fall of 1987 that he would not be paid the thirty percent (30%) annual bonus which had been orally promised to him when he joined Sorbus and which had been paid in previous years, and in December of 1987 he received an unfair evaluation based on “intentional and knowingly inaccurate statements made by [appellees] Valentino, Nolan and Molnar____” The cam-

paign against him, appellant asserts, culminated in the following manner:

39. [Appellant] was thereafter informed that his only alternatives were to accept a further demotion in the form of a transfer to a position which would be phased out in the near future, or terminate his employment with Sorbus.
40. On February 28,1988, [appellant’s] employment with Sorbus terminated.[]

In paragraphs 41-46 appellant asserts that his treatment “was a part of the practice employed by [appellees] of transferring or eliminating Sorbus officers or employees who challenged their fraudulent and unlawful practices.” As an example he offers the case of J. Burr Daly, the chief financial officer of Sorbus, who allegedly informed appellee Ross that the company’s Denver district had, with appellee Nolan’s consent, improperly manipulated the transfer of inventory on the company’s books so as to enable appellees to receive compensation to which they were not entitled. As a result, appellant alleged, appellee Ross procured Daly’s transfer to a position that was slated for elimination. In paragraph 47, appellant averred that by February of 1988 at the latest Bell had learned, from appellant and others, of the matters set forth in the preceding paragraphs, yet Bell refused to take action against the individual appellees and instead concurred in appellant’s termination.

With these allegations, appellant seeks to demonstrate that he, like the appellants in Shearin v. E.F. Hutton and Williams v. Hall, was discharged because he “questioned, opposed and refused to join in ... illegal activities” (Brief for Appellant at 13). However, nowhere in his amended complaint does appellant assert that he was asked to participate in illegal activities, nor does he state that he, like the appellant in Shearin v. E.F. Hutton, threatened to expose such activity to the appropriate authorities. In fact, appellant does not aver that he challenged any aspect of corporate practice because he considered it to be illegal. He objected to Sorbus’ commission program because he considered the commissions excessive and unfair, and he objected to Sorbus’ relationship with Jacom in the belief that Jacom’s business practices improperly deprived Sorbus of revenue and that Jacom should not have been preferred over another firm. Although appellant alleged in Count I of his amended complaint that appellees utilized the mails and traveled in interstate commerce for the purpose of facilitating Jacom's business practices, and that they committed securities fraud by filing financial statements that were false and misleading as to revenues properly owed by Jacom, appellant did not aver that illegality played any part in his objection to the Jacom relationship, or indeed that he knew of any illegality when he objected to the Jacom relationship on other grounds.

Appellant’s allegations concerning fraudulent expense payments obviously involve illegal activity, but these allegations do not indicate that appellant challenged the scheme or even that he was aware of it at the time that it occurred. Similarly, appellant does not aver that he was involved in the situation involving J. Burr Daly, whose employment allegedly was terminated after he uncovered illegal activity within the firm.

Even accepting as true all well-pleaded material facts set forth in the complaint and all reasonable inferences deducible therefrom, as we are required to do in reviewing an order sustaining preliminary objections in the nature of a demurrer, Field v. Philadelphia Electric Company, 388 Pa.Super. 400, 405, 565 A.2d 1170, 1172 (1989), we conclude that appellant lacks standing to pursue his claim. He has stated that he was constructively discharged after he persisted in challenging practices that he considered unwise and injurious to Sorbus. He has also stated that appellees engaged in illegal practices and that J. Burr Daly and others were fired for challenging those practices. Appellant does not aver, however, that he challenged Sorbus’ practices because he considered them to be illegal. At most, we can infer from appellant’s amended complaint that his employment was constructively terminated in order to prevent him from discovering, challenging, and/or disclosing illegal practices in the future.

In support of his claim that he has standing to pursue a § 1962(d) claim, appellant cites the following passage from the opinion of the U.S. District Court for the Eastern District of Kentucky in Williams v. Hall, supra:

I think the basis for the ruling will become clear if we consider the application of the principals [sic] applied here to a different fact situation.
Suppose several racketeers were to decide to take over a construction company. Suppose they said, “Let’s agree to operate this company in violation of the law. Let’s rig bids, bribe officials, intimidate and threaten competitors not to bid on jobs and travel in interstate commerce to accomplish all of this. And, oh yes, let’s fire all of the honest employees in the company, so you won’t have any opposition in accomplishing our scheme.”
Although the fact pattern is different here, the causal relationships are similar. The Court believes that Congress intended to afford discharged employees a civil remedy in such a situation and that the Supreme Court following Sedima would so interpret the RICO statute.

Id. at 644. As the Court itself indicated, however, the fact pattern just described was not that of the case itself. The plaintiffs in Williams v. Hall did not allege that they had been fired merely for being “honest employees,” but rather that they had been fired for refusing to participate in illegal bribery schemes and the resulting coverup. The observation just quoted is therefore dictum, and it does not persuade us that appellant has sufficiently alleged a nexus between his constructive discharge and a conspiracy on the part of appellees to violate 18 U.S.C. § 1962(a), (b), or (c). Accordingly, we affirm the order of December 20, 1989, insofar as it dismisses Counts I and II of appellant’s amended complaint.

III. WRONGFUL DISCHARGE

In Count VI of his amended complaint, appellant averred that his discharge “was in breach of the express and implied public policies of the Commonwealth of Pennsylvania.” In dismissing Count VI, the trial court, citing Geary v. United States Steel Corporation, 456 Pa. 171, 319 A.2d 174 (1974), and Tourville v. Inter-Ocean Insurance Company, 353 Pa.Super. 53, 508 A.2d 1263 (1986), alloc. denied, 514 Pa. 619, 521 A.2d 933 (1987), stated that there are only two exceptions to the rule that an at-will employee may be discharged for any or no reason: 1) where the discharge was contrary to public policy, and 2) where there was a specific intent to harm the employee. Appellant had not alleged the latter exception, the trial court held, and his discharge did not threaten any clearly discernible public policy.

Appellant contends on appeal that he raised both exceptions, public policy and specific intent to harm, in the trial court. According to appellant, he claimed that the individual appellees are liable for tortious interference with his contractual relationship with Sorbus (Count III), or, alternatively, that Sorbus is liable for his wrongful discharge if the actions of the individual appellees were undertaken in the course and scope of their employment (Count VI). Since the trial court allowed him to amend Count III, appellant argues, he should also have been permitted to pursue the “alternative” claim stated in Count VI. Having reviewed appellant’s claim, we accept the trial court’s interpretation of the issues raised before it. We hold, therefore, that appellant’s claim of wrongful discharge based on a specific intent to harm has been waived. Commonwealth v. National Federation of the Blind, 471 Pa. 529, 536, 370 A.2d 732, 736 (1977); Kovach v. General Telephone Company of Pennsylvania, 340 Pa.Super. 144, 149, 489 A.2d 883, 885 (1985).

As to his claim that his discharge implicated a fundamental public policy, appellant notes that in Village at Camelback Property Owners Association, Inc. v. Carr, 371 Pa.Super. 452, 538 A.2d 528 (1988), aff'd, 524 Pa. 330, 572 A.2d 1 (1990), this Court held that “the policy that underlies RICO, namely the elimination of crime in the marketplace, is ... a fundamental policy of this Commonwealth----” Id., 371 Pa.Super. at 477, 538 A.2d at 541. The case did not involve a claim of wrongful discharge, however. More importantly, even if we were to recognize “the elimination of crime in the marketplace” as a fundamental public policy in the context of exceptions to the employment-at-will rule, appellant’s claim nevertheless fails. As we held in Part II of this Opinion, appellant has not alleged that he was discharged because he refused to participate in or intended to reveal practices that were illegal. Therefore, as appellant’s discharge did not implicate a public policy against crime in the marketplace, assuming for the sake of argument that such a policy exists in the present context, we affirm the trial court’s order insofar as it dismisses Count VI of appellant’s amended complaint.

Order affirmed.

      . Counsel for appellant acknowledged at oral argument that this Court is not bound by the opinion of the Third Circuit Court of Appeals in Shearin v. E.F. Hutton. We note also that the Second Circuit Court of Appeals "cannot agree ... with cases [such as Shearin v. E.F. Hutton and Williams v. Hall ] that find standing on the basis of any overt act in furtherance of the conspiracy, even if it is not a predicate racketeering act." Hecht v. Commerce Clearing House, Inc., 897 F.2d 21, 25 (2d Cir.1990) (emphasis added).

      . The amended complaint implies but does not definitely state that appellant accepted the position.

      . For the purpose of ruling upon appellees' preliminary objections, the trial court inferred from appellant’s averments that he had either been fired or constructively discharged.

      . In its summary of the well-pleaded facts of the case, the trial court assumes that appellant’s objections to the commission program were based upon the existence of the fraudulent expense account scheme.

        The amended complaint does not so indicate, however. Although appellant expressed the belief that the fraudulent expense account scheme had been in existence "from at least April of 1985," he also stated that he questioned the commission program from the beginning of his employment with Sorbus, which was in November of 1983.

      . Having disposed of appellant’s claim on this ground, we decline to address appellees’ argument that Pennsylvania does not recognize a cause of action for wrongful discharge.


author: CAVANAUGH, Judge:

text:
    584 A.2d 973
    Gary M. RIZZO and Colleen P. Rizzo, H/W v. Andrianna Becker MICHENER and J.C. Ehrlich Co., Inc. d/b/a Taylor Exterminating. Appeal of J.C. EHRLICH CO., INC. d/b/a Taylor Exterminating. Gary M. RIZZO and Colleen P. Rizzo, H/W, Appellants, v. Andrianna Becker MICHENER and J.C. Ehrlich Co., Inc., d/b/a Taylor Exterminating.
    Superior Court of Pennsylvania.
    Argued Oct. 28, 1990.
    Filed Dec. 28, 1990.

      Randolph A. Scott, Warrington, for Ehrlich, appellants (at 1464) and appellees (at 1558).
    Peter M. Hileman, Doylestown, for Rizzo, appellants (at 1558) and appellees (at 1464).
    Stephen G. Maliszewski, Quakertown, for Michner, appellees (at 1464 and 1558).
    Before CAVANAUGH, TAMILIA and HESTER, JJ.
   CAVANAUGH, Judge:

Gary M. Rizzo and his wife, Colleen P. Rizzo, purchased real estate in Bucks County, Pennsylvania. The Agreement of Sale was signed in January, 1987 and settlement took place in April, 1987, at which time the buyers were represented by an attorney. The purchase price of the real estate was $115,000.00 and it included a one-story ranch house and four and one-half acres of land. The Agreement of Sale had a termite inspection clause, and the seller, Andrianna Becker Michener, hired J.C. Ehrlich Company, Inc., which did business as the Taylor Exterminating Company, to perform the termite inspection. The report stated “no visible evidence of infestation from wood destroying insects was observed.” It also noted that areas of the property were “obstructed or inaccessible” and the “rear crawlspace was inaccessible.” Shortly after settlement, Mr. Rizzo, who worked as a carpenter, was about to embark on extensive renovations to the property when he noticed flying insects. Subsequent investigation disclosed extensive termite damage to the house. The damage was so great that the Rizzos decided to demolish the house and build a new structure.

The Rizzos commenced an action against Andrianna Becker Michener and J.C. Ehrlich Company, Inc., d/b/a Taylor Exterminating Company. The action against J.C. Ehrlich Company set forth four causes of action for negligence, breach of contract, violation of the Unfair Trade Practices and Consumer Protection Law, and interference with the possession of real estate. The action against Ms. Michener alleged interference with the possession of real estate, fraud, and intentional infliction of emotional distress.

The matter was tried before Kelton, J. and a jury in September, 1989. At the conclusion of the plaintiffs case, J.C. Ehrlich Company moved for a nonsuit as to three of the four causes of action against it. The motion for nonsuit on the theory of breach of contract and violation of the Consumer Protection Act was denied but the court refused to charge the jury on alleged violations of the Consumer Protection Law. A nonsuit was granted as to the count claiming interference with the possession of real estate. A nonsuit was also entered in favor of Ms. Michener on the counts alleging interference with the possession of real estate and intentional infliction of emotional distress. A verdict was entered in favor of the Rizzos against J.C. Ehrlich Company, only, in the amount of $100,696.00.

J.C. Ehrlich Company filed a motion for new trial. The Rizzos filed a petition to mold the jury verdict, requesting damages under Pa.R.C.P. 238, and also triple damages and attorney’s fees under the Consumer Protection Law. The court below denied the motion of J.C. Ehrlich Company, Inc. for a new trial and the Rizzos’ request for damages under the Consumer Protection Law. However, delay damages were granted under Pa.R.C.P. 238 in the amount of $13,-071.91. Cross appeals were subsequently filed by the Rizzos and J.C. Ehrlich Company with this court, and they have been consolidated.

The first issue is whether the court below erred in refusing to submit the question of contributory or comparative negligence on the part of the plaintiffs, the Rizzos, to the jury. Counsel for J.C. Ehrlich Company objected to the charge, as it did not refer to the issue of comparative or contributory negligence. The court, in its opinion, concluded that since there was no evidence of contributory negligence the trial court was not required to instruct the jury on the issues of comparative or contributory negligence.

The court properly refused to charge on the issue of comparative negligence. The Pennsylvania Comparative Negligence Act only applies to negligence resulting in death or injuries to persons or damage to property. There must be a tortious episode which causes damage to tangible real or personal property. Wescoat v. Northwest Savings Association, 378 Pa.Super. 295, 548 A.2d 619 (1988). See also, Butler v. Flo-Ron Vending Co., 383 Pa.Super. 633, 557 A.2d 730 (1989). In Wescoat, supra, we held that the comparative negligence statute did not apply to a negligence action wherein the defendant failed to procure an insurance policy for the plaintiff and failed to notify the plaintiff that the insurance was not obtained. We determined that while the plaintiff had suffered a financial loss since he could not receive reimbursement from a non-existent disability insurance policy, this was not the type of injury to property contemplated in the act. We further held in Wescoat, supra, that since the comparative negligence statute did not apply, we must revert to the doctrine of contributory negligence which completely bars the plaintiff from recovery, if his negligence contributed to the result.

In the instant case, the alleged negligence by the defendant in not discovering the termites did not in any way result in the termite damage. The damage was done prior to the inspection as the evidence pointed to long existent termite damage. The negligence complained of by J.C. Ehrlich Company was that it failed to “discover the extensive evidence of termite damage.” The failure to charge on the comparative negligence statute was proper as it was not applicable.

The error by the court below was in failing to charge on the issue of plaintiffs’ contributory negligence. The existence of negligence is usually a question to be submitted to the jury upon proper instructions and the trial court should not remove the issue unless the facts leave no room for doubt. East Texas Motor Freight, Diamond Division v. Lloyd, 335 Pa.Super. 464, 484 A.2d 797 (1984). The charge of the trial court should not exclude any theory or defense that has support in the evidence. Gallo v. Yamaha Motor Corp. USA, 363 Pa.Super. 308, 526 A.2d 359 (1987). As noted in Robinson v. City of Philadelphia, 329 Pa.Super. 139, 148, 478 A.2d 1, 5 (1984): “If there is any evidence of contributory negligence, it would be an error not to charge the jury on the issue.”

There was evidence that the plaintiffs’ own lack of care in examining the house they purchased, coupled with the fact that the termite inspector allegedly did not have access to the rear crawlspace when he made the inspection, contributed to their loss. While there was evidence of negligence on the part of the termite exterminating company, there was also evidence of negligence on the part of the purchasers.

Mr. Rasbold, the representative of J.C. Ehrlich Company who made the inspection in connection with the termite certification required in the agreement of sale, testified that on the date of the inspection Mrs. Michener, who was then known by the name of Andrianna Becker, would not allow him access to the rear crawlspace space, which had a door approximately 30" x 30". According to Mr. Rasbold, the door had a padlock on it, which was locked, and Ms. Becker did not know if she had a key. When Mr. Rasbold told her that he had to gain access for the inspection, she said, “There is no way. It is winterized. It is all sealed up.” Since Mr. Rasbold could not inspect the rear crawlspace, he noted in his report that the “rear crawlspace was inaccessible.” The report also noted that there was an area of the property that was obstructed or inaccessible. The house was a one-story building and the principal termite damage appears to have originated from a rotted tree stump located in the rear crawlspace over which the back part of the house was built.

Mr. Rasbold did not suspect that termites were present in the rear crawlspace. He testified as follows:

A. I wasn’t suspicious but what I wanted to cover was getting the inspection form to be aware that that crawlspace hadn’t been inspected. That would turn the yellow light on for them to proceed further.
(Emphasis added.)

The Rizzos made five trips to Ms. Michener’s home before the settlement. Mr. Rizzo was aware of the door to the rear crawlspace and testified at trial that although the door had padlock on it, it was not locked. He noticed the door to the crawlspace on his first visit to the property. Nothing prevented Mr. Rizzo from opening the door to the rear crawlspace and looking in. Ms. Michener stored wine in the crawlspace so that access to it would have been possible. The joists over the crawlspace were badly deteriorated. Mr. Parker, an entomologist, testified at trial as an expert on behalf of the Rizzos. He was questioned whether a layman would have discovered the presence of termites if he had looked in the crawlspace. His testimony was as follows:

Q. Did it require, in your opinion, an expert to determine that those joists were damaged pr is it something that any lay person, could have seen?
A. I believe a lay person could have seen that there was something wrong with those wooden elements of the house.

Mr. Parker testified that the rear crawlspace was about three feet high, and “it’s pretty easy to get around in there.” Mr. Rizzo observed the door to the rear crawlspace on the occasion of his first visit to the property. At that time it was covered in plastic and although there was a padlock on the door, it was not locked. He never asked Ms. Michener if he could look in the crawlspace.

Not long after moving into the house, Mr. Rizzo planned on making extensive renovations. Before commencing work, he noticed insects, which he referred to as flying ants, in the rear of the house. He was concerned and contacted J.C. Ehrlich Company. Mr. Rasbold came to the house in May, 1987 and told Mr. Rizzo that he had been there for a termite inspection a few months before. Mr. Rasbold then entered the rear crawlspace through the door and inspected the area. After making the inspection, Mr. Rasbold told Mr. Rizzo about the serious termite condition in the crawlspace and the existence of the tree stump which was located there. Mr. Rizzo testified:

I asked Mr. Rasbold why he hadn’t noticed this in his first inspection. And he gave me no legitimate answer. He just said that he hadn’t noticed it, and that the crawlspace was inaccessible. He said he had noted that on his report.

Shortly thereafter, Mr. Rizzo entered the crawlspace and testified concerning his observations:

In the same area where the window was to go, I observed several joists, almost each joist in that area to be eaten a minimum of a foot back as badly as that wood is eaten right there. Also, the center beam that runs the full length of the house from end to end was terribly eaten in that area.
There was a tree stump that was a dirt floor in the crawlspace [sic]. There was a tree stump that was left there, the house was built over, that was literally just bark. It could be removed by your hand. You could touch it, it would crumble, just as that wood will if you were to squeeze it in your hand.

Although Mr. Rizzo was a chef by training, he also worked as a carpenter and planned to make alterations on the house himself. He was familiar with construction work and if he had taken the trouble to open the door to the crawlspace and look inside, he would have seen the extensive damage to the joists. The expert witness for the Rizzos testified that a layman would have observed the termite damage.

At settlement, the Rizzos were represented by a lawyer. They had a termite inspection report which stated that the rear crawlspace had not been inspected, as it was inaccessible. While there was evidence that it was inaccessible to Mr. Rasbold on the date of his inspection in January, 1986, it was not inaccessible to Mr. Rizzo, by his own testimony.

The Rizzos were sensitive to the effect of termite damage, and if they had any suspicion that termites were present, they might not have purchased the house. While they knew that the termite inspection did not include the rear crawlspace, they made no effort to open the door and look into the area. Mr. Rizzo testified to the extensive damage he observed to the joists when he went into the crawlspace. There was sufficient evidence of negligence by the buyers, Mr. and Mrs. Rizzo, to submit the issue to the jury. Even minimal evidence of contributory evidence requires a charge on the issue. Levine v. Rosen, 394 Pa.Super. 178, 575 A.2d 579 (1990). If there was some evidence of contributory negligence produced in any of the evidence, whether offered by the plaintiff or the defendant, it is reversible error not to charge the jury on the issue. McCullough v. Monroeville Home Association, 270 Pa.Super. 428, 411 A.2d 794 (1979); Morganstein v. House, 377 Pa.Super. 512, 547 A.2d 1180 (1988). It does not matter how slight the evidence of the plaintiffs’ contributory negligence is. Binder v. Jones & Laughlin Steel Corp., 360 Pa.Super. 390, 520 A.2d 863 (1987). The court below erred in not charging on contributory negligence and a new trial is required as to the defendant, J.C. Ehrlich Company, Inc. Any contributory negligence by the plaintiffs would be a complete bar to recovery.

The court below properly entered a nonsuit as to J.C. Ehrlich Company, Inc. relating to Count IV of the Rizzos’ complaint, which alleged that the defendant interfered with possession of their real estate. A compulsory nonsuit may be entered at the close of the plaintiff’s case on liability where the plaintiff has failed to establish a right to relief. A motion for compulsory nonsuit allows a defendant to test the sufficiency of the plaintiff’s evidence. Francioni v. Gibsonia Truck Corp., 472 Pa. 362, 372 A.2d 736 (1977); Target Sportswear, Inc. v. Clearfield Foundation, 327 Pa.Super. 1, 474 A.2d 1142 (1984). It may be granted only in cases where it is clear that a cause of action has not been established and the plaintiff must be given the benefit of all favorable evidence together with all reasonable inferences of fact arising from the evidence, resolving any conflict in the evidence in favor of the plaintiff. Storm, v. Golden, 371 Pa.Super. 368, 538 A.2d 61 (1988); Leibowitz v. H.A. Winston Co., 342 Pa.Super. 456, 493 A.2d 111 (1985). If a jury, viewing the evidence in the light most favorable to the plaintiff, could not reasonably determine that all of the elements of the cause of action were established, a compulsory nonsuit is appropriate. Durkin v. Equine Clinics, Inc., 376 Pa.Super. 557, 546 A.2d 665 (1988); appeal denied 524 Pa. 608, 569 A.2d 1367 (1989).

The court properly entered a nonsuit as to this count. There was no evidence that the termite report by J.C. Ehrlich Company interfered with the Rizzos’ peaceful possession of their real estate. The termite damage existed long before the termite inspection and report, and no action or lack of action by J.C. Ehrlich Company caused the termite damage or interfered with the Rizzos’ possession of their real estate.

Nonsuit was also properly granted on the count alleging intentional infliction of emotional distress. The complaint alleged in paragraph 45 that “Becker [Michener] intended to cause emotional harm to the Rizzos.” There was no evidence whatsoever that this occurred. In order to sustain a cause of action of this type, it must be shown that the defendant engaged in extreme and outrageous conduct. Reimer v. Tien, 356 Pa.Super. 192, 514 A.2d 566 (1986). The essential outrageous conduct must amount to a “major outrage.” Lazor v. Milne, 346 Pa.Super. 177, 499 A.2d 369 (1985). It is for the court to determine in the first instance whether the defendant’s conduct can reasonably be regarded as so outrageous as to permit recovery. Daughen v. Fox, 372 Pa.Super. 405, 539 A.2d 858 (1988); appeal denied 520 Pa. 605, 553 A.2d 967 (1988). The court properly determined that there was no reasonable basis on which the issue of intentional infliction of emotional distress could be submitted to the jury.

The court also properly refused to submit the issue of punitive damages to the jury. Such damages are permitted only for conduct that is outrageous due to the defendant’s evil motive or reckless indifference to the rights of others. Hoffman v. Memorial Osteopathic Hospital, 342 Pa.Super. 375, 492 A.2d 1382 (1985). The trial judge must determine in the first instance whether the plaintiff has presented sufficient evidence to support a punitive damage claim, which requires evidence on which the jury might reasonably conclude that outrageous conduct has been established by a preponderance of the evidence. Martin v. Johns-Manville Corp., 508 Pa. 154, 494 A.2d 1088 (1985). Even where the seller of real estate minimized termite damage by misrepresenting its seriousness and the extent that it had been remedied, and there was evidence of fraud, we held that the evidence was inadequate to support an award of punitive damages. Smith v. Renaut, 387 Pa.Super. 299, 564 A.2d 188 (1989).

Finally, the court properly refused to charge on the Unfair Trade Practices and Consumer Protection Law, 73 Pa.S. § 201-1, et seq. The Act, inter alia, prohibits “engaging in ... fraudulent conduct which creates a likelihood of confusion or misunderstanding.” 73 Pa.S. § 201-2 (XVII). There was no evidence that J.C. Ehrlich Company, by its agent, Mr. Rasbold, engaged in fraudulent conduct. While there was evidence of negligence on the part of J.C. Ehrlich Co. in the termite inspection, the report unequivocally stated that the rear crawlspace, which was the principal source of the termite infestation, was not inspected as it was not accessible. The basic policy of the Consumer Protection Law is to prohibit unfair methods of competition and unfair or deceptive practices in the conduct of a trade or commerce. Pennsylvania Retailers Association, Reliable, Inc. v. Lazin, 57 Pa.Cmwlth. 232, 426 A.2d 712 (1981). The key to invoking § 201-2 (XVII) of the Consumer Protection Law is fraud, and the essential elements of fraud were lacking. Actual fraud has five elements which must coalesce. There must be (1) misrepresentation of a material fact; (2) scienter; (3) intention by the declarant to induce action; (4) justifiable reliance by the party defrauded upon the misrepresentation; and (5) damage to the party defrauded as a proximate result. Kuehner v. Parsons, 107 Pa. Cmwlth. 61, 527 A.2d 627 (1987). The necessary elements of fraud were lacking and the court properly refused to charge on the issue of alleged violation of the Consumer Protection Law.

Judgment in favor of Gary M. Rizzo and Colleen P. Rizzo and against J.C. Ehrlich Company, Inc. reversed, and new trial granted as to J.C. Ehrlich Company, Inc., only.

All other orders are affirmed.

We relinquish jurisdiction.

HESTER, J. concurs in the result.

      . About a month after the Rizzos purchased the property, they brought an action before a District Justice because of a leak in the roof.

      . While the complaint alleged breach of contract in Count II, it is clear that the verdict against J.C. Ehrlich Co. was based solely on the negligence of that company. The court below, in instructing the jury, stated:
      There is an alternative theory under which the plaintiffs are pursuing and that is what we call a contract theory, not just negligence but the failure to perform a contract but what it really boils down to is the same thing. That is, was the inspection negligent or careless, was it done in a workmanlike manner which is the contract standards what we are really talking about, the same thing. (Emphasis added.)

      . Prior to the charge, the trial court stated in discussing the issues of comparative and contributory negligence:
      THE COURT: Nobody disclosed that the damages were readily observable by a lay person. To the extent of the observation of the existence of termites there may be an inference that Mrs. Michener may have seen it because she maybe should have seen swarms and there is also testimony that if somebody jumped up and down on the floor they could have seen the bounce but I don’t think that the purchaser of the house is charged with the duty to bounce up and down on every floor in the house.
      MR. SCOTT [Counsel for J.C. Ehrlich Co., Inc.]: Mr. Rizzo had testified that if he had looked under there knowing the damage he discovered later, he would have seen the damage, would have known it was damage and I think—
      THE COURT: Mr. Hileman, if you object to my charge on comparative negligence the objection is sustained.
      MR. HILEMAN: [Counsel for the Rizzos]: I object, Your Honor.

      . The Pennsylvania Comparative Negligence Act provides at 42 Pa.C.S. § 7102(a):
      (a) General Rule.—In all actions brought to recover damages for negligence resulting in death or injury to person or property, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff or his legal representative where such negligence was not greater than the casual negligence of the defendant or defendants against whom recovery is sought, but any damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff.

      . The Rizzos were concerned about the presence of termites. Mrs. Rizzo testified:
      If there were termites, then we definitely would have looked at either not buying the house or getting further inspections made to see how bad of a problem it was, and maybe just offer less money.

      . Count IV of the complaint alleged, inter alia:

        RIZZOS v. EHRLICH AND BECKER—Interference with Possession of Real Estate

      37. The conduct of the Defendants interfered with the Plaintiffs’ peaceful possession of their real estate, entitling them to recovery of damages for the inconvenience, discomfort and related expenses which resulted from the Defendants’ conduct.

      . Restatement (Second)' of Torts § 908 defines punitive damages and that section has been adopted as the law of Pennsylvania. Martin v. Johns-Manville Corp., 508 Pa. 154, 494 A.2d 1088 (1985); Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984).
      Section 908 of the Restatement provides, inter alia:

      Punitive damages are damages ... awarded against a person to punish him for his outrageous conduct and to deter him and others like him from similar conduct in the future.
      Punitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others.
      Restatement (Second) of Torts, § 908(1), (2). Comment (b) to Section 908 provides that:
      [s]ince the purpose of punitive damages is not compensation of the plaintiff but punishment of the defendant and deterrence, these damages can be awarded only for conduct for which this remedy is appropriate—which is to say, conduct involving some element of outrage similar to that usually found in crime. (Emphasis added.)

      . The Act provides for treble damages and payment of counsel fees by one engaging in activities proscribed by the Act. The Rizzos requested the court below to mold the jury’s verdict to $432,493.53 based on treble damages and counsel fees, which the court refused to do. The Rizzos paid $115,000.00 for the house and 4lA acres of land.