author: CIRILLO, President Judge:

text:
    530 A.2d 487
    James ROMANO, Jr., a minor, by his P/N/G Lisa and James ROMANO, and Lisa and James Romano in their own right v. Simon M. LUBIN, D.O., and Saul Jeck, D.O., and Peter A. Molle, D.O., and Lester A. Ruppersberger, D.O., and Delaware Valley Medical Center. Appeal of BEASLEY, HEWSON, CASEY, COLLERAN, ERBSTEIN AND THISTLE.
    Superior Court of Pennsylvania.
    Argued June 24, 1987.
    Filed Aug. 28, 1987.

      James E. Beasley, Philadelphia, for appellant.
    Donald L. Toner, Doylestown, for Romano, appellees.
    Before CIRILLO, President Judge, and TAMILIA and HOFFMAN, JJ.
   CIRILLO, President Judge:

This case concerns whether the trial court abused its discretion in reducing an attorney's fee from $363,034.52 or 21% of a $1.75 million settlement in a medical malpractice case to $227,500.00 or 13% of the settlement, pursuant to Pa.R.C.P. 2039, which requires court approval of any settlement of a claim brought by a minor. The case is before this court on appeal from the order of the Court of Common Pleas of Bucks County.

Appellant, Beasley, Hewson, Casey, Colleran, Erbstein and Thistle represented a minor and his mother in a medical malpractice action seeking to recover for permanent brain damage they each suffered when an anesthetic was improperly administered to the mother during the birth of the child. The firm accepted both cases pursuant to contingent fee agreements, whereby the attorneys would receive a specified percentage of any settlement or verdict. A settlement of $1.75 million dollars was agreed to before trial on the minor’s claim. After a review of the law firm’s records, the trial court awarded approximately $227,000.00 in counsel fees, though the settlement agreement called for the firm to receive approximately $363,000.00.

The court stated that its decision was based upon the considerations enunciated in LaRocca Estate, 431 Pa. 542, 246 A.2d 337 (1968), which include: the amount of work performed; the character of the services rendered; the difficulty of the problems involved; the importance of the litigation; the amount of money involved; the skill and standing of the attorney; and the client’s ability to pay. Id., 431 Pa. at 546, 246 A.2d at 339. The trial court calculated that counsel spent 182 hours working on the minor’s claim. The firm’s requested fee would thus have been $1,994 per hour. The fee awarded by the court resulted in an hourly rate of $1,250. The court was guided by the fee schedule in § 602 of the Health Care Services Malpractice Act of 1975, Act 15, P.L. 390, No. 111, declared unconstitutional on other grounds in Heller v. Frankston, 504 Pa. 528, 533, 475 A.2d 1291, 1294 (1984). In its opinion, the trial court stated that it weighed the interests of the brain damaged child against the interests of his law firm. The court stated that it was required to “scrupulously [protect]” the rights of the child and therefore, felt duty bound to reduce the attorneys’ fee so as to increase the minor-client’s share of the settlement.

The trial court and appellee guardian ad litem claim that under the Pennsylvania Rules of Civil Procedure, the trial court has broad discretion in setting counsel fees in cases involving minors.

Pa.R.C.P. 2039 provides that:

(a) No action to which a minor is a party shall be compromised, settled or discontinued except after approval by the court pursuant to a petition presented by the guardian of the minor.
(b) When a compromise or settlement has been so approved by the court, or when a judgment has been entered upon a verdict or by agreement, the court upon petition by the guardian or any party to the action, shall make an order approving or disapproving any agreement entered into by the guardian for payment out of the fund created by the compromise; or the court may make such order as it deems proper fixing counsel fees and other proper expenses ...

We agree with appellee that we may reverse the trial court’s decision in this matter only if that honorable court abused its discretion or committed an error of law. Though the court identified the proper factors which it need examine, those factors were misapplied. We thus find that the trial court did abuse its discretion in drastically reducing the appellant’s fee.

The trial court stated that it weighed the interests of the minor child against those of the law firm in making its decision. Setting these mutually compatible interests against each other misconstrues the very nature of a contingent fee agreement.

The contingent fee, though much maligned and misunderstood, has been termed “the poor man’s key to the courthouse.” An automobile company may decide that it values profits over people and manufacture a car with an inexpensive but hazardous design. That car then blows up, leaving the driver nothing more than charred flesh and his grieving family numb with shock and facing possible financial ruin. Could that poor family afford the per hour rate of the high-priced, Wall Street legal talent which the automobile company will employ to defend any suit they might bring? The answer is searingly obvious. A contingent fee agreement will enable that family to file suit and receive the compensation which they deserve. Any person whose heart stirs with the barest twinge of compassion must praise such a just result.

It is possible, though pointless, to elaborate as to countless, similar examples. The minority group member fired because of race; the deformed or paralyzed victim of a doctor’s careless error; the employee whose employer knowingly exposes him to a deadly substance because it is less expensive than a substitute product. Without the contingent fee, could any of these persons obtain justice? Surely, large corporations and insurance companies will always be able to afford teams of high priced attorneys. Pity the poor injured plaintiff who must finance such a contest from his own resources.

It must also be noted that attorneys often accept cases on a contingent fee basis which result in no recovery. The lawyer not only does not get paid, he will lose the money he has advanced the client to pay for the costs of the suit. When the court calculates the fee of a plaintiff’s attorney, it must consider that the very same attorney may have spent thousands of uncompensated hours working on other cases. A single recovery may constitute the better portion of his yearly income.

Furthermore, the interests of an attorney and his client should never be set against each other. Those interests are complementary, not antagonistic. It is the incentive of a large award which motivates the attorney to vigorously pursue the case and demand the best possible settlement for the client. For every extra dollar the attorney receives, the client must necessarily receive three or four.

Based on the foregoing, we believe the trial court abused its discretion in this case. Its analysis pitted the attorney against the client, fundamentally misinterpreting the nature of a contingent fee agreement. The initial attorneys fee agreed upon was less than 25% of the settlement. Considering the skill of the practitioners involved, that was hardly an unreasonable figure. See Heller v. Frankston, 504 Pa. 528, 541, 475 A.2d 1291, 1293 (1984) (attorneys awarded 33% of one million dollar settlement of minor’s claim).

Based on the foregoing, the order of the Court of Common Pleas of Bucks County is reversed and this matter is remanded for that court to enter an order awarding appellants attorney fees in the amount of $363,034.52. Jurisdiction relinquished.


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    530 A.2d 489
    EINHORN YAFFEE PRESCOTT KROUNER, P.C., Appellant, v. The DRESSLER CORPORATION and Fritz R.S. Dressler, Individual, Appellees.
    Superior Court of Pennsylvania.
    Argued April 29, 1987.
    Filed Aug. 31, 1987.
    Stephen A. Durham, Media, for appellees.
    Before OLSZEWSKI, DEL SOLE and BECK, JJ.
   OLSZEWSKI, Judge:

Challenged in this appeal is the trial court’s denial of appellant’s motion requesting reconsideration and modification of an order entered January 21, 1985, which struck a foreign judgment appellant had filed in Pennsylvania. Appellant filed the motion for reconsideration nineteen months after the entry of the January 21, 1985, order. For the reasons which follow, we conclude that this appeal must be quashed.

This matter arose when appellant, Einhorn Yaffee Prescott Krouner, P.C., obtained a judgment against appellees, the Dressier Corporation and Fritz R.S. Dressier, individually, in the courts of the state of New York. Subsequently, on July 5, 1983, appellant transferred the New York judgment to Delaware County, Pennsylvania, pursuant to the Uniform Enforcement of Foreign Judgments Act, 42 Pa. C.S. Sec. 4306. Appellant next initiated discovery proceedings in aid of execution on the July 5, 1983, judgment. Following Mr. Dressler’s failure to appear for a deposition, appellant filed a petition and rule to show cause why Mr. Dressier should not be held in contempt. Mr. Dressier and the appellee corporation filed an answer in response, along with a petition to open and/or strike the July 5, 1983, judgment. Appellees argued that the judgment should be stricken due to appellant’s failure to include a copy of the docket entries required by 42 Pa.C.S. Sec. 4306(b). The trial court, by memorandum opinion and order dated January 21, 1985, held for appellees, concluding that appellants did not comply with the docket entry requirement of 42 Pa.C.S. Sec. 4306(b) and directing that the judgment should therefore be stricken and the contempt petition dismissed. Appellant did not appeal from this order.

Nineteen months later, on August 22, 1986, appellant filed a motion requesting the trial court to reconsider and modify its January 21, 1985, order. On October 3,1986, the trial court denied appellant’s motion as being untimely filed and beyond its jurisdiction, and it is that order from which appellant has appealed.

Appellant argues to this Court that the trial court had jurisdiction to reconsider and modify its January 21, 1985, order to comply with this Court’s holding in Nobel Well Service, Inc. v. Penn Energy, 348 Pa.Super. 267, 502 A.2d 200 (1985), a decision filed eleven months after that order. The holding in Nobel Well Service purportedly supports appellant’s contention that the judgment of July 5, 1983, was appropriately entered and should not have been stricken.

We do not reach the merits of appellant’s claim, however, because we conclude that we are without jurisdiction to entertain this appeal. Pursuant to Pa,.R.A.P. 903(a), a notice of appeal to this Court “shall be filed within 30 days after the entry of the order from which the appeal is taken.” Our courts have strictly construed this limitation on the time for filing an appeal, see Hesson v. Weinrebe, 288 Pa.Super. 216, 431 A.2d 1015 (1981), and absent fraud or some breakdown in the court’s operation, we are without authority to extend it. Pa.R.A.P. 105(b); Provident National Bank v. Rooklin, 250 Pa.Super. 194, 378 A.2d 893 (1977).

Instantly, appellant would have us extend the applicable appeal period by its filing of a motion for reconsideration nineteen months after entry of the January 21, 1985, order. Appellant does so by challenging the merits of the January 1985 order through an appeal from the trial court’s denial of reconsideration. The January 1985 order, however, which struck the judgment and dismissed appellant’s contempt petition, is the order from which appellant should have appealed within thirty days. Significantly, as an order striking off a judgment, the January 1985 order was immediately appealable under Pa.R.A.P. 311, the rule governing interlocutory appeals as of right. More importantly, the mere filing of a motion for reconsideration nineteen months after the entry of the order in no way extended nor reinstated the running of the appeal period.

Supporting this conclusion is our decision in Scoumiou v. United States Steel Corporation, 293 Pa.Super. 254, 438 A.2d 981 (1981), in which we addressed a situation procedurally similar to the case at bar. In Scoumiou, the matter was automatically dismissed pursuant to a local rule of court governing termination of inactive cases. On May 12, 1980, appellee presented a petition to reactivate the case. After a hearing, the court issued an order on May 29, 1980, reactivating the matter and directing appellant to file a complaint. On June 6, 1980, appellant separately filed a petition for reconsideration and exceptions to the order of May 29, 1980. Each set forth identical reasons. A court en banc subsequently issued an order dated November 7, 1980, dismissing the exceptions and the petition for reconsideration. Appellant then filed an appeal on December 2, 1980, within thirty days of the dismissal order of November 7, 1980, but more than six months after the order of May 24, 1980, which reactivated the case.

Although appellant had filed an appeal within thirty days of the order dismissing the exceptions and the petition for reconsideration, we concluded that that order was not properly before us and quashed the appeal as untimely filed. Scoumiou v. United States Steel Corporation, supra, 293 Pa.Super. at 259, 438 A.2d at 983. As in the case sub judice, Scoumiou involved an appeal interlocutory as of right under Pa.R.A.P. 311. We found that appellant could have appealed the order of May 29, 1980, immediately upon its entry and within thirty days thereafter. Commenting, however, on the appellant’s right to file an appeal after the exceptions and petition for reconsideration were dismissed, we stated:

“... absent a stay or order granting reconsideration issued by the lower court, a petition for reconsideration does not toll the statutorily mandated appeal time. To hold otherwise would permit a party to employ dilatory tactics as a strategy.” Provident National Bank v. Rooklin, 250 Pa.Super. 194, 201, 378 A.2d 893, 896 (1977). (Emphasis added)

Id,., 293 Pa.Super. at 259, 438 A.2d at 983. We then observed:

Obviously, if that were the correct appellate procedure, then every litigant aggrieved by an appealable interlocutory order could unilaterally extend the appeal period merely by filing exceptions, and that, of course, would amount to an impermissible assault on orderly appellate procedure. Provident National Bank v. Rooklin, supra.

Id., 293 Pa.Super. at 259, 438 A.2d at 983.

For these reasons, appellant’s challenge to the merits of the trial court’s order of January 21, 1985, is untimely and must therefore be quashed.

Appeal quashed.

      . We note that where an interlocutory order is immediately appeal-able under Pa.R.A.P. 311, a failure to appeal under subdivision (a) of that rule does not constitute a waiver of the objection to the order and the objection may be raised on any subsequent appeal in the matter from a determination on the merits. Pa.R.A.P. 311(d)(1)(i). This provision does not save appellant’s appeal, however, because, an appeal from the denial of a motion for reconsideration is not a "subsequent appeal ... from a determination on the merits.”

      . The fact that appellant’s motion for reconsideration was based upon subsequent case law which may have overruled case law relied upon by the trial court does not alter our decision that this appeal is untimely. In In re Estate of Merrick, 432 Pa. 450, 247 A.2d 786 (1968), the United States, fifteen months after entry of a final decree, filed a petition asking the Orphan's Court to reconsider such decree, averring that the case law upon which the decree was based had been overruled. Our Supreme Court held that the trial court’s refusal to reconsider the final decree was not reviewable and observed with respect to timeliness that,
      ... even if the Government had requested such reconsideration within the period permitted for filing an appeal from the final decree, such action would not have had the effect of tolling the appeal statute where no stay of proceedings has been asked and granted.

        Id, 432 Pa. at 454, 247 A.2d at 788. (Emphasis added.)


author: DEL SOLE, Judge:

text:
    530 A.2d 491
    Howard W. MARSH, Appellant, v. Patrick C. BOYLE, An Individual, Western Pennsylvania Newspaper, Co., Appellee.
    Superior Court of Pennsylvania.
    Argued June 2, 1987.
    Filed Aug. 27, 1987.

      Thomas M. Torquato, Lewistown, for appellant.

      Keith M. Pemrick, Franklin, for appellees.
    Before DEL SOLE, POPOVICH and MONTGOMERY, JJ.
   DEL SOLE, Judge:

The instant appeal follows a trial court order granting summary judgment against Appellant who sought to recover for his alleged wrongful discharge.

The review of a grant of a summary judgment is based upon a well established standard:

Summary judgment may be granted if the pleadings, depositions, answers to interrogatories and admissions on file, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Williams v. Pilgrim Life Insurance Co., 306 Pa.Super. 170, 452 A.2d 269 (1982); Scheetz v. Borough of Lansdale, 64 Pa.Cmwlth.Ct. 24, 438 A.2d 1048 (1982). It is basic that summary judgment may be entered only in a case that is clear and free from doubt. Dunn v. Teti, 280 Pa.Super. 399, 421 A.2d 782 (1980); Tom Morello Construction Co. v. Bridgeport Federal Savings & Loan Association, 280 Pa.Super. 329, 421 A.2d 747 (1980).

Martin v. Capital Cities Media, Inc., 354 Pa.Super. 199, 207, 511 A.2d 830, 834 (1986) quoting Rossi v. Pennsylvania State University, 340 Pa.Super. 39, 45, 489 A.2d 828, 831 (1985). It is further recognized that “in reviewing the record on appeal from the trial court’s grant of summary judgment, this Court must accept as true all well-pleaded facts in the nonmoving party’s pleadings, giving the non-moving party the benefit of all reasonable inferences to be drawn therefrom”. Johnson v. Baker, 346 Pa.Super. 183, 186, 499 A.2d 372, 374 (1985).

The complaint and amended complaint filed by Appellant set forth two counts of wrongful discharged Count One sought to establish that Appellant had been discharged by his employer without just cause contrary to the parties implied long-term contract. Appellant’s second theory of recovery was grounded on Appellant’s claim that his dismissal was a violation of public policy. These pleadings along with depositions and answers to interrogatories establish the following.

Appellant left his employment as circulation manager of the Lewistown Sentinel to begin working at an increased salary for Appellees as publisher of the Clarion News. It was Appellant’s understanding that he would be working for a period of time along with the current publisher, who was about to retire. The date of the current publisher’s retirement was never established. Appellant was informed at the time of hiring that he would work in Clarion as publisher for “at least two years” and thereafter would become general manager in Oil City, a position Appellant desired because it would result in a pay increase and because Oil City was Appellant’s childhood home. Appellant placed his house in Lewistown for sale and relocated to Clarion to commence his employment on October 28, 1985. Appellant’s family remained in Lewistown and his home there was not sold prior to his dismissal at the Clarion News on January 29, 1986.

In Pennsylvania, an employment relationship is generally considered to be at-will and absent a specific statutory or contractual provision it is terminable by either party at any time. Betts v. Stroehmann Bros., 355 Pa.Super. 195, 197, 512 A.2d 1280, 1281 (1986), citing Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974). “[I]f there is a dispute over the discharge of an employee, the threshold inquiry is whether or not the employment was at-will.” Veno v. Meredith, 357 Pa.Super. 85, 97, 515 A.2d 571, 577 (1986). Where an employment arrangement does not contain a definite term, it will be presumed that the employment at-will rule applies. Bañas v. Matthews Intern. Corp., 348 Pa.Super. 464, 502 A.2d 637 (1985). “[Gjenerally an employment contract for a broad, unspecified duration does not overcome the presumption of at will employment. ... Definiteness is required____” Murphy v. Publicker Industries, Inc., 357 Pa.Super. 409, 416-419, 516 A.2d 47, 51-52 (1986) citing Darlington v. General Electric, 350 Pa.Super. 183, 195-196, 504 A.2d 306, 312 (1986). An oral agreement which promises employment “for life” or “permanently” is not sufficiently definite to permit an employee to recover if he is discharged without cause. Id. Likewise, “[t]he law does not attach binding significance to comments which merely evince an employer’s hope that the employee will remain in his employ until retirement.” Veno v. Meredith, supra, 357 Pa.Super. at 101, 515 A.2d at 579. However, parties’ intentions regarding the agreement, gleaned by examining the surrounding circumstances, may enable an agreement to “rise to the requisite level of clarity”. Greene v. Oliver Realty, Inc., 363 Pa.Super. 534, 554, 526 A.2d 1192, 1201 (1987).

To ascertain the parties’ intent an important factor to consider is the presence of additional consideration. Id., 363 Pa.Superior Ct. at 555, 526 A.2d at 1202. In discussing the role additional consideration plays in construing an employment contract, the court in Darlington v. General Electric, supra, summarized:

[I]f sufficient additional consideration is present, the law presumes this to be sufficient to rebut the at-will presumption. Such a contract could not be rightfully terminated at-will but would continue for a reasonable length of time. 56 C.J.S. Master and Servant § 31. However, the presumption created by the additional consideration rule could itself be rebutted by evidence that the parties specifically contracted for employment at-will.

Darlington v. General Electric, supra, 350 Pa.Super. at 200, 504 A.2d at 314.

The court in Darlington also examined what constitutes sufficient additional consideration and remarked:

Thus, a court will find “additional consideration” when an employee affords his employer a substantial benefit other than the service which the employee is hired to perform, or when the employee undergoes a substantial hardship other than the services which he is hired to perform. “If the circumstances are such that a termination of the relation by one party will result in great hardship or loss to the other, as they must have known it would when they made the contract, this is a factor of great weight in inducing a holding that the parties agreed upon a specific period.” 3 A. Corbin, Corbin on Contracts § 684 (1960).

Id., 350 Pa.Superior Ct. at 201-202, 504 A.2d at 315. When sufficient additional consideration is present, an employee should not be subject to discharge without just cause for the length of the contract. See: Veno v. Meredith, supra, 357 Pa.Super. at 101-102, 515 A.2d at 580; Greene v. Oliver Realty, Inc., supra, 363 Pa.Super. at 555-556, 526 A.2d at 1202-1203. When the exact period for which the parties intended to contract is unable to be determined, an agreement for a “reasonable time” will be inferred. Id. ■ “The length of time during which it would be unreasonable to terminate, without just cause, an employee who has given additional consideration should be commensurate with the hardship the employee has endured or the benefit he has. bestowed.” Veno v. Meredith, supra, 357 Pa.Super. at 102, 515 A.2d at 580. Citing Lucacher v. Kerson, 158 Pa.Super. 437, 45 A.2d 245 (1946), the Darlington court noted that a substantial hardship such as moving one’s family to take a new position would be regarded as sufficient additional consideration to overcome the at-will presumption. Darlington v. General Electric, supra, 350 Pa.Super. at 201, 504 A.2d at 315.

In Lucacher v. Kerson, supra, an employee was promised permanent employment in his new job. In reliance on this promise he moved from New York to Philadelphia. The employee, who was abruptly discharged from his new position just three days into his employment, was allowed recovery. In contrast is the situation present in Veno v. Meredith, supra. Therein, the appellant’s employer expressed hope the employee would remain in his employ until retirement. Eight years later, the employee was discharged. The appellant in Veno claimed that additional consideration took him out of the at-will employment sitúation. The consideration consisted of appellant’s resignation of a job at a different newspaper, his family’s move from Newark to Pennsylvania and his refusal of other employment opportunities throughout the years. The court ruled that appellant’s termination eight years into his employment under the facts of the case would not permit recovery. The court found that the detriments alleged by the employee were “commensurate with those incurred by all manner of salaried professionals” and that under the circumstances the appellant had not “brought to the employment so substantial a benefit, or incurred so detrimental a hardship in taking the job, that he should be accorded treatment any different from typical at-will employee”. Id. 357 Pa.Super. at 102, 515 A.2d at 580.

In the case before us, the employer’s assurances that Appellant would be working as publisher “for at least two years” was not sufficiently definite to take the agreement out of the at-will employment presumption. Appellant, nevertheless, relies on the surrounding circumstances, particularly his resignation from his position with the Lewis-town paper, his move to Clarion and his act of placing his house on the market as establishing sufficient consideration to rebut the at-will presumption. Appellant seeks to prove that the parties’ discussion as to the terms of his employment, when examined in light of these circumstances, created a contract which could not be terminated at-will but, rather, would continue for a reasonable length of time, or at least two years.

The issue as presented by Appellant is not appropriately resolved in a motion for summary judgment. In Greene v. Oliver Realty, supra, it was noted that “[t]he court must allow the jury to consider [the employee’s] alleged ‘additional consideration’ as well as all the circumstances surrounding the agreement. A jury might reasonably interpret the above cited facts so as to conclude that [the employee] has clearly rebutted the at-will presumption.” Id. 363 Pa.Super. at 556, 526 A.2d at 1202. Likewise, the court in Murphy v. Publicker Industries, Inc., supra, stated: “Of course, whether an employee has given such additional consideration as will rebut the presumption is a question of fact for the jury.” Id. 357 Pa.Super. at 417, 516 A.2d at 51.

It is necessary to remand this case to enable the jury to resolve whether Appellant presented sufficient evidence to rebut the at-will presumption.

Even if it were to be determined that the agreement at issue was an at-will employment contract, the discharge would “be reviewable in a judicial forum when there is sufficient evidence to suggest that it was against public policy or made with the specific intent to harm the employee”. Veno v. Meredith, supra, 357 Pa.Super. at 97, 515 A.2d at 577. In Count Two Appellant sets forth a claim that his discharge was contrary to the public policy of the Commonwealth. Appellant describes the following as the basis for this claim; “The Plaintiff has alleged that the public policy of the Commonwealth is that every person has a right to earn a living in a job that he chooses and that an employer cannot act in an arbitrary, capricious and abusive manner in dealing with his employee.”

To determine whether a discharged employee can recover damages for wrongful discharge, a two part test is utilized. Initially, it must be determined whether any public policy is threatened. Even if an important public policy is involved, the court must recognize the discharge as lawful if the employer has a separate, plausible and legitimate reason for doing so. Betts v. Stroehmann Bros., supra, 355 Pa.Super. at 197-99, 512 A.2d at 1281 citing Cisco v. United Parcel Services, Inc., 328 Pa.Super. 300, 476 A.2d 1340 (1984). The public policy exception to the at-will employment relationship is “quite narrow”. Householder v. Kensington Mfg. Co., 360 Pa.Super. 290, 296, 520 A.2d 461, 464 (1987). It will be found only where a clearly mandated public policy which “ ‘strikes at the heart of a citizen’s social right, duties and responsibilities’ ” is violated. Id., 360 Pa.Superior Ct. at 296, 520 A.2d at 465, citing Turner v. Letterkenny Federal Credit Union, 351 Pa.Super. 51, 55, 505 A.2d 259, 261 (1985); Novosel v. Nationwide Insurance Company, 721 F.2d 894, 899 (3d Cir.1983).

We agree with the trial court that Appellant herein has not alleged that any “cognizable public policy” was violated by his discharge. In Betts v. Stroehmann Bros., supra, the employee maintained that public policy was violated when he was discharged although he had performed his job well. Similar to Appellant, the employee in Betts argued that he had a right to be employed with the defendant-company unless he failed to discharge his duties with care and skill or unless he performed on the job in a manner detrimental to the interests of the employer. The court in Betts ruled that the employee did not assert a violation of a “sufficiently specific mandated public policy as to make out a valid claim for relief”. Id. 355 Pa.Super. at 199, 512 A.2d at 1282. It found no cognizable public policy protecting against termination of employees who have performed their duties properly.

Appellant has, likewise, not made out a claim for wrongful discharge involving an infringement of a recognized public policy. The trial court’s action granting summary judgment in favor of Appellees on Count Two of Appellant’s Complaint was clearly proper and is affirmed.

Judgment affirmed in part, reversed in part. Case remanded for proceedings consistent with this Opinion.


author: CERCONE, Judge:

text:
    530 A.2d 496
    In re G.B., A Juvenile. Appeal of BUCKS COUNTY CHILDREN AND YOUTH SERVICES AGENCY.
    Superior Court of Pennsylvania.
    Argued June 17, 1987.
    Decided Aug. 27, 1987.

      Cynthia M. Weaver, Newtown, for appellant.
    Malcolm J. Gross, Allentown, for appellee.
    Before MONTEMURO, KELLY and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from a determination of the Lehigh County Court of Common Pleas that Lehigh County would not accept, by transfer from Bucks County, the case of G.B., a dependent child, under the Juvenile Act, 42 Pa.C. 5. A. §§ 6301-6365.

In January 1978, G.B. was adjudicated dependent by the Bucks County Court of Common Pleas and placed in the custody of the Bucks County Children and Youth Services Agency. (Bucks County agency) In January 1985, the Bucks County Court of Common Pleas determined, at a six-month judicial review hearing, that the case should be transferred to Lehigh County because the mother resided in Lehigh County. Thereafter, the Lehigh County Office of Children and Youth Services (Lehigh County agency) indicated that it would not agree to the transfer of G.B.’s case to its agent.

On petition of the Bucks County agency, a hearing was conducted on May 13, 1986, before the Honorable Isaac S. Garb of the Bucks County Court of Common Pleas. That petition contained the following request: “Therefore, it is requested that the Court again review this case and, after a full hearing, order the legality and merits of transfer of legal custody of [G.B.] to Lehigh County Children and Youth Services.” The Lehigh County Agency was given notice of the hearing and appeared, with counsel, for the limited purpose of objecting to the jurisdiction of the Bucks County court over the matter. On May 15, 1986, Judge Garb issued the following order:

AND NOW, this 15th day of May, 1986, after hearing in the above-captioned matter, it is hereby ORDERED and DIRECTED that this proceeding be transferred to the Court of Common Pleas of Lehigh County, Juvenile Division. This Order is based on this Court’s findings after hearing on May 13, 1986, that the minor child, [G.B.] resides in Lehigh County for these purposes, that County being the County of residence of his only known parent at the present time and having existed for some significant period of time.

No appeal was taken from this order.

On October 9, 1986, the Bucks County agency petitioned the Lehigh County Court of Common Pleas for an Emergency Order and hearing because the Lehigh County agency had done nothing to provide for the welfare of G.B. After a hearing on the aforementioned petition, the Honorable David E. Mellenberg issued the order of December 1, 1986 which states, “It is ordered the custody of the said minor, [G.B.], cannot be accepted in Lehigh County and that custody shall remain in the Bucks County Children and Youth Social Services Agency.” It is from this order which the herein appeal lies.

1. Jurisdiction.

Before addressing the merits of appellant’s claim that the Lehigh County Court improperly refused to place custody of G.B. with the Lehigh County agency, we must first determine whether this appeal is properly before us.

Appellant, Bucks County agency, claims that because the Lehigh County agency failed to appeal the May 15, 1986 order transferring the case to the Lehigh County court system, the issue of transfer had been finally decided and the Lehigh County Court of Common Pleas had no power to retransfer the case to Bucks County. Citing Pa.R.A.P. 311(c), appellant argues that matters of transfer of venue are final, appealable orders and that failure to appeal an order transferring a matter to a court of coordinate jurisdiction constitutes waiver of all objections to the transfer. See Pa.R.A.P. 311(d)(l)(ii); Krasnov v. Dinan, 56 D. & C.2d 710, 712 (1972).

While appellant’s analysis appears facially correct, a closer review of the facts and procedure in this case reveals its fallacy. In the petition which spurred this dispute, the Bucks County agency requested the Bucks County court to transfer legal custody of G.B. to the Lehigh County agency. Counsel for the Lehigh County agency appeared at the May, 1986 hearing for the limited purpose of objecting to the jurisdiction of that court over the Lehigh County agency. See Pa.R.Civ.P. 2103(b) (“Except when the Commonwealth is the plaintiff or when otherwise provided by an Act of Assembly, an action against a political subdivision may be brought only in the county in which the political subdivision is located.”). The term “political subdivision” is defined as “any county, city, ... or county institution district.” See Pa.R.Civ.P. 76. A county’s children and youth services agency is a “county institution district” for purposes of venue. Therefore, the Bucks County Court of Common Pleas had no jurisdiction to order the Lehigh County agency to act.

The May 15 order merely transferred the “proceeding” to the Court of Common Pleas of Lehigh County. That order did not order the Lehigh County agency to accept custody of G.B. as the Bucks County court had no jurisdiction to make such an order. Only the Lehigh County Court of Common Pleas could order the Lehigh County agency to accept custody of G.B. Accordingly, we find that the December 1, 1986 order of the Lehigh County Court of Common Pleas is the final appealable order in this case and this appeal is now properly before this court.

2. Residence of G.B.

Having resolved the jurisdictional question, we now address the primary question of this case. That is, whether the Lehigh County Court of Common Pleas erred in concluding that G.B.’s residence was in Bucks County rather than Lehigh County. This determination is fundamental as it relates to which county agency should bear the responsibility of providing for G.B.’s welfare.

Following a lengthy hearing on the issue, the Lehigh court concluded that Bucks County is G.B.’s county of residence for these purposes and, therefore, the court refused to order the Lehigh County agency to accept custody of G.B. The Lehigh court relied, without analysis, on a recently filed opinion of this court, In Interest of 356 Pa.Super. 360, 514 A.2d 899 (1986) (Cercone, J.), to support it’s legal conclusion that G.B.’s residence is in Bucks County.

In In Interest of under a procedural scenario similar to the instant case, this court was called on to interpret the effect of section 2 of the Juvenile Act, 42 Pa.C.S.A. § 6321(c)(1), which reads:

(c) Transfer to another court within this Commonwealth.—
(1) If the child resides in a county of this Commonwealth and the proceeding is commenced in a court of another county, the court, on motion of a party or on its own motion made after the adjudicatory hearing or at any time prior to final disposition, may transfer the proceeding to the county of the residence of the child for further action. Like transfers may be made if the residence of the child changes during the proceeding. The proceeding may be transferred if the child has been adjudicated delinquent and other proceedings involving the child are pending in the court of the county of his residence.

While section 6321(c)(1) facially refers only to venue and jurisdiction of a court, it has also been applied in cases where, as here, two county agencies are engaged in a dispute as to which county should bear responsibility for a dependent child.

In Interest of we discussed the concept of residence, as used in section 6321(c). However, Interest of J.S.M. should not be read to mean that the dependent child’s “residence” is the only factor in determining which county should bear responsibility for the child. The case at hand is a perfect example of how a determination of “residence”, as defined in Interest of J.S.M., may be meaningless. In this case, G.B. lived with his parents in Bucks County at the time he was adjudged dependent in 1978. Since that time, the Bucks County agency has contracted with Pinebrook Services, of Lehigh County, to provide appropriate foster homes for G.B. Since placement within Pinebrook Services, G.B. has lived in foster homes in Berks County, Northampton County and Lebanon County, never in Lehigh County. G.B.’s mother currently lives in Lehigh County and his father has been out of contact with the family for several years. G.B. is a semi-autistic child with special educational and social needs. His natural mother is unable to cope with him or to provide appropriate care. His “residence” is controlled by the Bucks County agency, through Pinebrook Services. It is doubtful that G.B. has the mental capacity to form an “intent” or “purpose” to reside in any particular place. Therefore, a determination of which county should retain legal custody of G.B. must depend on factors other than mere “residence” and must, ultimately, depend on a determination of how to serve the best interests of the dependent child.

The Bucks County agency’s position is that because G.B.’s mother’s residence is in Lehigh County, the child’s residence should be there likewise. It argues that the possibility of reuniting G.B. with his mother would be best served by transferring custody and responsibility for G.B. to Lehigh County. While this is viable argument, the record is far from overwhelming in support of a finding the G.B.’s mother intends to work actively toward bringing G.B. back into her home. Her visits with him are sporadic and she had even entertained the idea of giving him up for adoption if an appropriate home could be found. Although notified of the hearing, G.B.’s mother did not attend it in order to express her desires or intentions. Based on these factors, we find no error in the lower court’s order refusing to impose custody of G.B. on the Lehigh County Office of Children and Youth Services.

Order affirmed.

      . We further note that the Lehigh County agency could not have appealed the May 15 order as it was not "aggrieved” by that order. See Pa.R.A.P. 501.

      . In Interest of J.S.M., 356 Pa.Super. 360, 514 A.2d 899 (1986), "residence” was defined as, "Personal presence at some place of abode with no present intention of definite and early removal and with purpose to remain for undetermined period, not infrequently, but not necessarily combined with design to stay permanently.” Id, 356 Pa.Superior Ct. at 363, 514 A.2d at 900 (quoting Black’s Law Dictionary 1176 (rev. 5th ed. 1979)).


author: WIEAND, Judge:

text:
    530 A. 2d 870
    Dorothy WHITE, Appellee, v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, Appellant.
    Superior Court of Pennsylvania.
    Argued May 5, 1987.
    Filed Aug. 14, 1987.
    Reargument Denied Sept. 28, 1987.

      Stephen S. Dittmann, Philadelphia, for appellant.
    Ronald B. Abrams, Philadelphia, for appellee.
    Before BROSKY, WIEAND and BECK, JJ.
   WIEAND, Judge:

The issue to be decided in this case is the appealability of an order vacating sanctions which previously had been imposed pursuant to Pa.R.C.P. 4019. We conclude that the order entered in this case is interlocutory; and, therefore, we quash the appeal.

Dorothy White commenced an action in trespass against Southeastern Pennsylvania Transportation Authority (SEPTA) to recover damages for personal injuries which she had sustained while riding a bus on February 4, 1980. SEPTA caused written interrogatories to be served on White, which White failed to answer. On December 23, 1982, the trial court entered a sanction order which precluded White from introducing at trial any evidence pertaining to matters sought to be discovered by SEPTA.

White’s counsel was disbarred on October 19, 1982. It is clear that White had notice of this disbarment no later than March, 1983. Nevertheless, she did nothing until April 3, 1986, when she acted through new counsel to file a petition requesting the trial court to vacate its sanction order of December 23, 1982. When the trial court granted the petition and vacated the prior sanction order, SEPTA appealed.

It is axiomatic that an appeal will lie only from a final order or judgment unless otherwise permitted by statute or rule. Fried v. Fried, 509 Pa. 89, 93, 501 A.2d 211, 213 (1985). White contends that an order vacating discovery sanctions does not end the litigation or dispose of the case and, therefore, is neither final nor appealable. We agree.

“[A]n order is final where it puts a litigant out of court or otherwise terminates the litigation by precluding a party from presenting the merits of a claim or defense to the trial court.” Fidelity Bank v. Duden, 361 Pa.Super. 124, 128, 521 A.2d 958, 961 (1987). The trial court’s order vacating discovery sanctions against White did not terminate or finally dispose of the action pending between the parties. On the contrary, the action remains alive; the parties are still in court; and further proceedings are necessary to determine pending issues of liability and damages.

The Supreme Court, in Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978), admonished that “whenever possible, [appellate] review must await the determination of a suit notwithstanding any resulting inconvenience to a party.” Id., 483 Pa. at 75, 394 A.2d at 546. Moreover, “[a]s a general rule, this Court will not provide interim supervision of discovery proceedings conducted in connection with litigation pending in the several trial courts. In the absence of unusual circumstances, we will not review discovery or sanction orders prior to a final judgment in the main action.” McManus v. Chubb Group of Insurance Companies, 342 Pa.Super. 405, 410, 493 A.2d 84, 87 (1985).

The order from which this appeal was taken is not an order opening a judgment. No judgment has ever been entered in this action. Indeed, it was SEPTA’s notice to White, dated February 5, 1986, that the pending action was to be assigned for trial or dismissal for lack of prosecution which appears to have prompted White to engage other counsel. Therefore, SEPTA did not acquire a right of appeal under Pa.R.App.P. 311(a)(1), which allows an interlocutory appeal from an order opening a judgment.

Because SEPTA’s appeal is improper, it must be quashed.

Appeal quashed.