author: CAVANAUGH, Judge:

text:
    539 A.2d 858
    Joseph R. DAUGHEN, Joan Daughen and Joan Patrice Daughen, a Minor by Joseph R. Daughen, Her Guardian, Appellants, v. Stuart A. FOX, D.V.M., F. Sawires, D.V.M., and Hospital, Inc., D/B/A Rau Animal Hospital, Appellees.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1987.
    Filed March 30, 1988.

      Randi J. Vladimer, Philadelphia, for appellants.
    Ralph L. Hose, Ardmore, for Hosp., Inc., appellees.
    Before CAVANAUGH, BECK and HESTER, JJ.
   CAVANAUGH, Judge:

The first issue raised in this appeal is whether a cause of action exists for intentional infliction of emotional distress arising from the death of one’s dog. In this case the appellants, Joseph R. Daughen, Joan Daughen and their minor daughter, Joan Patrice Daughen, commenced an action in trespass and assumpsit against the appellees. Count I was in trespass and alleged that the appellees, Stuart A. Fox, D.V.M., F. Sawires, D.V.M., and Hospital, Inc., trading and doing business as Rau Animal Hospital, who were the defendants below, intentionally or with reckless disregard of the consequences of their actions, caused the appellants to suffer severe emotional distress. The second count was also in trespass and alleged that the misconduct of the appellants resulted in the loss of appellees’ pet dog, a unique chattel and caused them to suffer the loss of their dog’s companionship and comfort. The third count was in assumpsit and alleged breach of express and implied warranties by the negligent and reckless conduct of the appellees. The appellees filed a motion for summary judgment which was granted by order of the court through Corso, J. on February 20, 1987. An appeal has been taken to this court.

Pa.R.C.P. 1035(b) provides in part that summary judgment “... shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law ...” A motion for summary judgment should be granted where the pleadings, discovery and affidavits reflect no genuine issue of material fact. Loyal Christian Benefit Association v. Bender, 342 Pa.Super. 614, 493 A.2d 760 (1985). A summary judgment should be entered only in those cases which are clear and free from doubt. Weiss v. Keystone Mack Sales, Inc., 310 Pa.Super. 425, 456 A.2d 1009 (1983). The court must accept as true all well-pleaded facts in the non-moving party’s pleadings, and give the non-moving party the benefit of all reasonable inferences to be drawn therefrom. Spain v. Vicente, 315 Pa.Super. 135, 461 A.2d 833 (1983); Metal Bank of America v. Insurance Company of North America, 360 Pa.Super. 350, 520 A.2d 493 (1987); Mowery v. Prudential Property & Casualty Insurance Company, 369 Pa.Super. 494, 535 A.2d 658 (1988).

Applying these rules, the facts may be summarized as follows. The appellants were the owners of an eight year old mongrel dog called Cindy which had been a family pet since it was born. In June, 1980, Mr. and Mrs. Daughen took their dog to Rau Animal Hospital for examination as she had been vomiting her food for some two days. Dr. Fox, who is a veterinarian, examined the dog and prescribed medication. The next day the dog’s condition worsened and the appellants returned to the veterinary hospital where the animal was examined and catherized by Dr. Sawires. Medicine was also administered to the animal. The dog was returned to the hospital the next day for an x-ray in accordance with Dr. Sawires’ instructions. The x-ray was taken and the same day Dr. Sawires told the appellants that the x-rays showed a needle was in the animal’s intestine and that surgery was essential to save the dog’s life. The Daughen’s authorized the surgery. After the surgery, the appellants were advised that the needle was not found during the operation, but additional x-rays indicated that there was an object referred to in the complaint as a “bullet” in or near the animal’s liver. Dr. Sawires admittedly had mixed up two x-rays of similar dogs and the first x-ray showing the needle was not an x-ray of the appellant’s dog. Dr. Sawires told the appellants that there had been signs of lead poisoning and that the personnel at Rau Animal Hospital were not qualified to remove the bullet by medical procedures. He advised that only personnel at the University of Pennsylvania were so qualified. Dr. Fox told the appellants that their dog was too weak for such surgical procedure. The dog died on June 29, 1980 and had been at Rau Animal Hospital since June 25, 1980. According to the complaint, Dr. Fox and Dr. Sawires intended to conceal from the appellants the fact that they had operated on their dog on the basis of an x-ray of another dog.

The thrust of Count I is the intentional or reckless infliction of emotional distress as set forth in Restatement (Second) of Torts, § 46 which provides in part:

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

Our court has stated that § 46 of the Restatement (Second) of Torts has been adopted in Pennsylvania. Stoddard v. Davidson, 355 Pa.Super. 262, 513 A.2d 419 (1986) citing Bartanus v. Lis, 332 Pa.Super. 48, 480 A.2d 1178 (1984); Banyas v. Lower Bucks Hospital, 293 Pa.Super. 122, 437 A.2d 1236 (1986); D’Ambrosio v. Pennsylvania National Mutual Casualty Company, 262 Pa.Super. 331, 396 A.2d 780 (1978). We pointed out in Bartanus v. Lis, 332 Pa.Super. at 61, 480 A.2d at 1185 (1984); "... the intentional infliction of emotional distress is an evolving tort and its scope has not yet been clearly defined.” Citing Papieves v. Lawrence, 437 Pa. 373, 263 A.2d 118 (1970). However, our Supreme Court recently stated in Kazatsky v. King David Memorial Park, 515 Pa. 183, 527 A.2d 988, (1987): “Previously this Court has acknowledged but has never had occasion to specifically adopt section b6 as the law of Pennsylvania." (Emphasis added) The Supreme Court pointed out in footnote 1, 515 Pa. 185, 527 A.2d 988-989:

1. Reference was made to section 46 in Papieves v. Kelly, 437 Pa. 373, 378, 263 A.2d 118 (1970). The principle adopted in that case, however, was derived from Restatement (First) of Torts § 868 (1939), which provides for liability to a decedent’s family member for the wanton mistreatment or intentional withholding of that decedent’s corpse. In Forster v. Manchester, 410 Pa. 192, 189. A.2d 147 (1963), we rejected a claim which sought to invoke Restatement (First) of Torts § 46 (rev. 1948), which required intent to cause severe emotional distress, because there had been no showing of such intent. We also concluded that the conduct complained of was not “outrageous.” Thus it was unnecessary to consider the adoption of section 46, as then written, as the law in Pennsylvania. Various other courts have incorrectly taken the view that this Court has adopted section 46. See, e.g. Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265 (3d Cir.1979); Banyas v. Lower Bucks Hospital, 293 Pa.Super. 122, 437 A.2d 1236 (1981). (Emphasis added.)

The court stated that it would “again leave to another day the viability of section 46 in this Commonwealth.” 515 Pa. 185, 527 A.2d at 989. The court also stated in footnote 5 in Kazatsky at 515 Pa. 194-195, 527 A.2d at 993:

5. It is interesting to note that this tort is not truly a judicial development simply “restated by the American Law Institute. Although it relies on prior cases, the Restatement in this area has generated the law more than it has restated it.” ... “Academics, rather than courts, were the prime movers in the development of the tort of intentional infliction of severe emotional distress by outrageous conduct: the modern tort was introduced in the pages of law reviews, and then refined and finally defined by the American Law Institute in its Restatements.”

In Kazatsky, supra, a dispute arose over payment for a grave marker between the purchasers of the marker and the cemetery company and insistence by the company that perpetual care be purchased for the grave in question. The claim of emotional distress was based on the defendant’s alleged use of threats to coerce the plaintiffs into purchasing a perpetual care contract for their deceased children’s grave. The court did not reach a determination as to whether the defendant’s conduct fell within the ambit of § 46 as the plaintiffs presented no expert testimony concerning their alleged injuries. The court held that: "... if section 46 of the Restatement is to be accepted in this Commonwealth, at the very least, existence of the alleged emotional distress must be supported by competent medical evidence.” 515 Pa. 197, 527 A.2d 995.

The court further pointed out that “The species of tort created by section 46 provides only the most nebulous definition of ‘outrageous’ conduct.” 515 Pa. 194, 527 A.2d 993. The court quoted extensively from Givelber, The Right to Minimum Social Decency and the Limits of Evenhandedness: Intentional Infliction of Emotional Distress by Outrageous Conduct, 82 Colum.L.Rev. 42, 52-53 (1982) including the statement that:

The outrageousness test presents the related difficulty that recovery often depends, at least in the first instance, upon a court’s determination that the defendant behaved in an immoral and uncivilized fashion. Yet, despite claims that they serve as “society’s conscience,” courts may have no particular wisdom with respect to what is socially intolerable. The court’s gatekeeping task is hardly aided by the Restatement’s glib assurance that the tort covers only those cases that are so extreme that people are literally aroused to proclaim “outrageous.”

In view of the Supreme Court’s recent comments concerning § 46, we would be hesitant to find that a case had been made out under this theory. However, we need not give recognition to the cause of action since we agree that in any event this case does not present a § 46 claim.

Assuming that § 46 of the Restatement (Second) of Torts were to become the law of Pennsylvania, essential elements under § 46 are the extreme and outrageous conduct towards the plaintiff. Jones v. Nissenbaum, Rudolph & Seidner, 244 Pa.Super. 377, 368 A.2d 770 (1976); Reimer v. Tien, 356 Pa.Super. 192, 514 A.2d 566 (1986). It is for the court to determine in the first instance whether the defendants’ conduct can reasonably be regarded as so extreme and outrageous as to permit recovery. Dawson v. Zayre Department Stores, 346 Pa.Super. 357, 499 A.2d 648 (1985). See also Restatement of Torts (Second) § 46 Comment (h). In the Dawson case, supra, an employee of the defendant used a racial slur towards the plaintiff. We upheld the grant of a demurrer as the conduct outlined in the complaint did not possess the degree of severity necessary to establish a cause of action. Comment (d) to section 46 discusses extreme and outrageous conduct:

d. Extreme and outrageous conduct. The cases thus far decided have found liability only where the defendant’s conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by “malice,” or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim,

“Outrageous!.”

The essential outrageous conduct required has been referred to in Lazor v. Milne, 346 Pa.Super. 177, 180, 499 A.2d 369, 370, 371 (1985) as “major outrage” which would appear to require conduct beyond merely outrageous. In Lazor, supra, a letter was sent to the plaintiff by the officers of a club telling her that it had been brought to their attention that she had been harrassing employees, bringing her own food to the club and conducting herself in the presence of new members in a way prejudicial to the welfare of the club. The letter also stated that if her action continued, the board would take disciplinary action. We sustained the grant of preliminary objections on the grounds that a cause of action had not been set forth as the conduct did not constitute a major outrage.

In Jones v. P.M.A. Insurance Company, 343 Pa.Super. 411, 413, 495 A.2d 203, 204 (1985), we again sustained the dismissal of preliminary objections to a complaint alleging intentional infliction of emotional distress. The alleged outrageous conduct occurred when the defendant’s attorney told the plaintiff’s lawyer who represented him in a claim for workmen’s compensation benefits “we would pay him if he wasn’t represented by you.” Allegedly, this statement caused the plaintiff a great deal of distress. A further example of noncompensatory conduct in connection with matters of a legal nature is Jones v. Nissenbaum, Rudolph & Seidner, supra, where a law firm wrote to the plaintiffs and stated that their house was to be sold at sheriffs sale. Also, an agent of the law firm’s client came to the plaintiffs’ house and told them that the house was going to be sold and that they had 30 days to get their junk out. The plaintiffs went to the law firm and again were told that their house was to be sold. The plaintiffs allege that this caused severe emotional distress resulting in the death of one of the plaintiffs. We stated in Jones v. Nissenbaum, Rudolph and Seidner, supra, apparently erroneously, that the Supreme Court recognized the tort of intentional infliction of emotional distress in Forster v. Manchester, 410 Pa. 192, 189 A.2d 147 (1963). However, we ruled that the conduct must be “extreme or outrageous.” 244 Pa.Super. 383, 368 A.2d at 773 and the defendants’ conduct did not rise to that level. In Thompson v. Sikov, 340 Pa.Super. 382, 490 A.2d 472 (1985) we affirmed the grant of a demurrer to a complaint alleging emotional distress. The husband plaintiff had received a verdict in a trespass action in the amount of $500,000.00 and the wife plaintiff in the amount of $150,000.00. After the verdict had been entered, counsel for the insurance carrier of one of the defendants told the plaintiff husband that they were not going to see any of the money and he was going to appeal. When this message was relayed to his wife, it caused her extreme emotional distress and she became almost paralyzed. We held that the remarks were privileged and in addition they could not form the basis of a cause of action under § 46 of the Restatement (Second) of Torts. Buczek v. First National Bank, 366 Pa.Super. 551, 531 A.2d 1122 (1987) is another case related to the pursuit of legal remedies. The plaintiff claimed emotional distress resulting from the defendant bank’s attempt to collect overdue loans and to purchase their property in satisfaction of the obligations owed to the bank by the plaintiffs. The plaintiffs contended that the bank harassed them and engaged in self-dealing in violation of its fiduciary duties. This court, through Beck, J., agreed that as a matter of law the complaint did not set forth a cause of action under § 46 and sustained preliminary objections in the nature of a demurrer.

In Hoffman v. Memorial Osteopathic Hospital, 342 Pa. Super. 375, 492 A.2d 1382 (1985) we set aside a jury verdict in favor of the plaintiff and granted a new trial. The facts established that the plaintiff tripped and sprained his back at work. After visiting his family doctor he was still having trouble with his legs. Finally, he was taken to the defendant hospital complaining about pain in his legs. After being examined by a doctor, the plaintiff was told he could leave. However, he could not get out of a chair and fell on the floor. The doctor told the plaintiff he could get up and go home, but he could not do so and began to cry. The doctor then told him that he had sick patients to care for and he walked out of the room. The plaintiff remained on the floor, continuing to cry and stating that his legs hurt. He did not have on a shirt, socks or shoes and the floor was cold. The plaintiff remained on the floor for one and one-half to two hours and was not provided with a pillow or a blanket. At one point, while the plaintiff was lying in the doorway of the emergency room, the doctor, who had returned, stepped over him and informed him again that there was nothing wrong and that he could go home. The doctor gave orders to the hospital staff not to assist the plaintiff up from the floor. We granted a new trial because the trial court did not give an explanation to the jury of the word “intentional.” It was stated at 342 Pa.Super. 382, 492 A.2d 1386: “The requisite ‘intention’ which one must display for liability to be imposed under the tort of outrage is ‘knowledge on the part of the actor that severe emotional distress is substantially certain to be produced by his conduct’ Forster v. Manchester, 410 Pa. 192, 199, 189 A.2d 147, 151 (1963) (emphasis in original).”

In Pierce v. Penman, 357 Pa.Super. 225, 515 A.2d 948 (1986) we held that reckless conduct causing emotional distress renders an actor as liable as if he acted intentionally, citing Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265 (3rd Cir.1979).

In Jackson v. Sun Oil Company, 361 Pa.Super. 54, 521 A.2d 469 (1987) we affirmed the grant of summary judgment in favor of the defendants. The plaintiff claimed intentional infliction of emotional distress. The plaintiff was employed by Sun Oil Company as an oilburner service mechanic. After repairing a furnace in a private home, the owner’s daughter complained to Sun Oil that he had made sexual advances to her. The plaintiff was told that pending an investigation, he would not be allowed to make service calls. He took and passed a lie detector test and was then permitted to return to his duties servicing heating equipment. Some years later, the plaintiff’s service manager told him in the presence of witnesses that the complainant had lied. The complaint filed by the plaintiff alleged emotional distress from Sun Oil’s failure to tell the plaintiff that he had passed the lie detector test and its failure to tell his fellow employees that the complainant had recanted her allegations. We held that “There is no cognizable claim under Section 46 where the failure to act, i.e. negligence of a party, forms the basis of the claim ... Further, there is no indication here that Sun intended to cause distress to Jackson or knew with substantial certainty that such a result would occur.” 361 Pa.Super. 59, 521 A.2d at 471.

The appellants cite the case of Banasczek v. Kowalski, 10 Pa.D. & C. 3rd 94 (Luzerne County 1979) in support of their argument that the existence of the tort of intentional infliction of emotional distress relating to the right of a dog owner to recover for mental suffering caused by the destruction of the owner’s dog, is well settled in Pennsylvania. In Banasczek v. Kowalski, supra, the complaint for emotional distress alleged that the defendant intentionally shot two of the plaintiff’s dogs. The court dismissed the defendant’s preliminary objections in the nature of a demurrer “since we think the more enlightened view is to allow recovery for emotional distress in the instance of malicious destruction of a pet ...” 10 Pa.D. & C. 3rd at 97. Even if we were to agree with this expression of the law, it does not compel the conclusion that the complaint in this case has set forth a cause of action.

In the instant case, the appellants allege that the defendants seriously erred in performing an operation to remove a needle from their dog’s intestine, when the basis for their diagnosis was the x-ray of another dog. They also allege that Dr. Sawires’ statement that the dog would die without surgery to remove the needle, caused them “severe emotional distress, anxiety and concern for the survival of Cindy” (Complaint paragraph 17(J)). The appellants also contend that distress was caused by “cropping” the x-ray which incorrectly showed a needle in their dog’s intestine. The appellees admitted cropping the x-ray, but only to delete the name of the owners of the dog whose x-ray it was.

Under the admitted facts of the case, we agree with the court below that as a matter of law, the complaint does not set forth a cause of action. The principal misconduct alleged was directed to the appellants’ dog, and consisted in performing an operation based on another animal’s x-ray. Further, it was alleged that the proper medical treatment was not obtained for the dog after the appellees realized their mistake. This is an allegation of incompetence which led to the animal’s death. It is not extreme and outrageous conduct directed at the appellants, although they undoubtedly suffered grief at what they feel was the untimely and unnecessary death of their pet dog.

The thrust of section 46 is conduct on the part of the defendant which causes emotional distress. In the appellants’ complaint there is emphasis not so much on what the appellees did to their pet dog, but what they did not do. For example, the appellants complain that after the dog was operated on, Dr. Sawires “evaded answering further questions” paragraph 21 of the complaint. In paragraph 22, they complain that Dr. Sawires failed to advise the appellants that further medical treatment was required for their dog and in the alternative that nothing could be done by anyone for the dog and that she was likely to die of lead poisoning. This goes to alleged improper medical advice and none of the conduct rises to the level of outrageous conduct required under section 46. It is evident that our Supreme Court does not look benevolently upon section 46 and it waits until another day to determine its viability as part of Pennsylvania law. Even if section 46 becomes firmly entrenched in our jurisprudence, the facts in this case do not constitute the outrageous conduct that is an essential element of the tort.

The second issue for our consideration is whether the court below properly granted summary judgment in favor of the appellees as to Count II of the complaint which sought damages for the loss of a unique chattel and for loss of the dog’s companionship and comfort. The court below properly entered summary judgment as to this count. Under Pennsylvania law, a dog is personal property. The fundamental purpose of damages for an injury to or destruction of property by tortious conduct of another is to compensate the injured party for actual loss suffered. Commonwealth of Pennsylvania, Department of Transportation v. Crea Estate, 92 Pa.Cmwlth.Ct. 242, 483 A.2d 996 (1977). As in this case, where the property has been destroyed, the measure of damages would be the value of the property prior to its destruction. See Miller v. C.P. Centers, Inc., 334 Pa.Super. 623, 483 A.2d 912 (1984). Appellants, however, claim that their dog was a unique chattel whose value to them exceeded the monetary value of a mongrel dog. While the appellants undoubtedly had a sentimental attachment to their dog, this would not make it unique chattel under the law.

The appellants also contend in Count II that they would be entitled to damages for loss of companionship due to their dog’s death. This assertion is clearly without merit. Companionship is included in the concept of consortium, which is a right growing out of a marriage relationship giving to each spouse the right to the companionship, society and affection of each other in their life together. Burns v. Pepsi-Cola Metropolitan Bottling Company, 353 Pa.Super. 571, 510 A.2d 810 (1986). Under no circumstances, under the law of Pennsylvania, may there be recovery for loss of companionship due to the death of an animal.

Finally, we come to the issue of grant of summary judgment as to Count III of the complaint. This Count sounded in assumpsit and alleged breach of express and implied warranties. While the court by its order of February 20, 1987 granted the appellees’ motion for summary judgment as to all counts, it is clear from its opinion of May 4, 1987, filed after an appeal was taken to this court, that it did not intend to include Count III within the ambit of summary judgment and Count III remains a viable cause of action. Accordingly, the court below entered an order on June 17, 1987 vacating the order of February 20, 1987 and granting the motion for summary judgment only as to Counts I and II. On October 1, 1987, we determined that the court below was without jurisdiction to enter the order of June 17, 1987. See Pa.R.A.P. 1701. We now reverse the order of February 20, 1987 of the court below as to Count III and affirm the order as to the grant of summary judgment as to Counts I and II. The action shall continue in the court below only as to Count III dealing with breach of express and implied warranties.

Summary judgment affirmed as to Counts I and II and these Counts are dismissed. Order granting summary judgment as to Count III reversed.

      . In his concurring opinion Justice Hutchinson stated at 515 Pa. 200-201, 527 A.2d 996:
      I do not believe the new intentional tort proposed by Section 46 of Restatement of Torts 2d, with its undefined parameters, has any place in either Pennsylvania precedent or policy.

      . Parenthetically, we note our decision in Halliday v. Beltz, 356 Pa.Super. 375, 514 A.2d 906 (1986) which involved an action for negligent infliction of emotional distress in a medical malpractice suit. Preliminary objections were sustained. The plaintiffs wife was operated on and complications arose following the surgery which resulted in her death. We found no cause of action existed as the plaintiff did not witness the specific negligent actions which is required to recover for negligent infliction of emotional distress. We recognize that Halliday involved a claim for negligent infliction of emotional distress while the case before us involves intentional or reckless infliction and the applicable law is not the same. However, where a husband is denied recovery because he did not actually observe the operation performed upon his spouse, it would indeed appear incongruous to allow a cause of action for intentional infliction of emotional distress where the alleged wrongful acts committed against the appellants’ dog were not observed.

      . We must recall that the Supreme Court in Kazatsky v. King David Memorial Park, supra, cited the Chuy case as one of the cases which incorrectly took the view that the Supreme Court had adopted Section 46.

      . The “Dog Law” 3 Pa.C.S. § 459-102 defines a dog as "The genus and species known as Canis familiaris”. 3 Pa.C.S. § 459-601(a) states inter alia, “All dogs'are hereby declared to be personal property ...”

      . The appellants cast their second issue on appeal in terms of "negligence and/or malpractice.” In the court below in their “Memorandum of Law in Support of Answer to Defendants’ Motion for Summary Judgment” the only reference to Count II is “Count II [claims] damages for the loss of a unique chattel, a valuable and cherished pet, due to defendants’ treatment of Cindy, as well as defendants’ intentional coverup.” This does not go to the question of loss of companionship, but that claim was presented in the complaint.


source: Caselaw Access Project

author: CIRILLO, President Judge:

license: Public Domain

text:
    539 A.2d 865
    Frank DiBONAVENTURA, Appellant, v. CONSOLIDATED RAIL CORPORATION.
    Superior Court of Pennsylvania.
    Submitted Feb. 9, 1988.
    Filed March 31, 1988.

      Dennis J. Muir, Media, for appellant.
    John R. Jenchura, Philadelphia, for appellee.
    Before CIRILLO, President Judge, and TAMILIA and HESTER, JJ.
   CIRILLO, President Judge:

This is an appeal from an order of the Court of Common Pleas of Delaware County granting Consolidated Rail Corporation’s (Conrail) motion for summary judgment. We affirm.

Frank DiBonaventura was an employee of Conrail from its inception in 1976 until he was terminated by the company on May 25,1982. DiBonaventura had begun his employment in the railroad industry in 1946 working as a clerk for the Pennsylvania Railroad Company. Upon the merger of that company with New York Central, DiBonaventura continued as an employee of the Penn Central Transportation Company. Conrail acquired Penn Central’s assets in 1976, and appellant continued as an employee there for the next six years. At the time of his discharge, he was employed as the assistant manager of a Conrail real estate office in King of Prussia, Pennsylvania.

In his complaint, DiBonaventura alleged that Conrail discharged him because he refused to agree to certain real estate sales in Washington, D.C., which involved selling property there for less than the highest bid made. Conrail contends that DiBonaventura was discharged for allowing H.J. Heintz, a representative of H.G. Heintz, Inc., a past buyer of Conrail property, to pay for repair work done to his house, and that such actions were grossly improper and violated the company’s conflict of interest policies. DiBonaventura maintains that the contractor he used was recommended to him by Heintz but that he had no knowledge that Heintz had agreed to pay the contractor.

DiBonaventura brought suit against Conrail in federal court, alleging that he had entered into an implied contract of employment with Conrail, and had been wrongfully discharged. That action was dismissed without prejudice by the Honorable Edward N. Cahn for lack of subject-matter jurisdiction, and transferred to the Delaware County Court of Common Pleas. Conrail filed a motion for summary judgment; the court deferred disposition of that motion upon DiBonaventura’s request for discovery. After discovery, DiBonaventura amended his complaint to include allegations concerning a written document entitled, “Management Performance Appraisal Agreement,” and an accompanying manual. DiBonaventura argued to the trial court in a memorandum of law that these documents represented a contract of employment between himself and Conrail. On March 18, 1987, the Honorable Clement J. McGovern granted Conrail’s motion for summary judgment. DiBonaventura filed a petition for reconsideration which the court denied. He then appealed to this court.

DiBonaventura raises four arguments on appeal, all of which center around the question of whether or not an implied contract of employment existed between himself and Conrail. He argues firstly that the trial court failed to properly apply the standard of review in its grant of summary judgment. He then argues that the Management Performance Appraisal Agreement was an implied contract which would have removed him from the at-will presumption. Thirdly, he contends that contract terms of duration and just cause may be implied from the evidence presented. Lastly, he claims that a covenant of good faith and fair dealing may also be implied from the record and the evidence. After reviewing the pleadings, we find that no genuine issue of material fact exists, and that Conrail is entitled to the judgment in its favor as a matter of law.

In reviewing a motion for summary judgment, the appellate court must review the record in the light most favorable to the nonmoving party. Any doubt must be resolved against the moving party; Garcia v. Community Legal Services Corp., 362 Pa.Super. 484, 494, 524 A.2d 980, 985 (1987). 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. Summary judgment may be entered only in a case that is clear and free from doubt. Rossi v. Pennsylvania State Univ., 340 Pa.Super. 39, 45, 489 A.2d 828, 831 (1985).

In this Commonwealth, we have long recognized that an employer has the right to discharge an employee who has no definite contract of employment at any time and for any reason. Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974); Henry v. Pittsburgh & L.E.R.R., 139 Pa. 289, 21 A. 157 (1891). We have recognized, however, that certain limited exceptions to the at-will doctrine exist. An employee handbook that explicitly indicates that discharge will be for just cause only may create an implied contract of employment. See, e.g., Greene v. Oliver Realty Co., 363 Pa.Super. 534, 526 A.2d 1192 (1987); Banas v. Matthews International Corp., 348 Pa.Super. 464, 502 A.2d 637 (1985); Richardson v. Cole Memorial Hosp., 320 Pa.Super. 106, 466 A.2d 1084 (1983). This, of course, would remove the employee from at-will status. Evidence of additional consideration given the employer by the employee also removes the case from the at-will doctrine. See Veno v. Meredith, 357 Pa.Super. 85, 515 A.2d 571 (1986). We have also recognized a very limited public policy exception in this Commonwealth where the employee’s discharge would violate a discrete public policy. See Hunter v. Port Auth., 277 Pa.Super. 4, 419 A.2d 631 (1980); Reuther v. Fowler & Williams, Inc., 255 Pa.Super. 28, 386 A.2d 119 (1978). Courts of some states have implied just cause requirements in all terminations, see Comment, The Role of Federal Courts in Changing State Law. The Employment At-Will Doctrine in Pennsylvania, 133 U.Pa.L.Rev. 227 (1984), Pennsylvania is not among these.

DiBonaventura argues that an implied contract existed between himself and his employer. In support of this contention, he points to the Management Performance Appraisal Agreement, the manual used to utilize that Agreement, and a policy and procedure manual developed by Conrail. The at-will employment presumption will be overcome only if the employee can show with clarity and specificity that the parties contracted for a definite period. Greene, 363 Pa.Super. at 555, 526 A.2d at 1202. In order for an employee to carry his burden of proving that the at-will employment contract has been modified into employment for a specified term, he must show from the circumstances surrounding the undertaking of employment that the parties did not intend the employment to be at-will. Veno, 357 Pa.Super. at 96-97, 515 A.2d at 577; Darlington v. General Elec. Corp., 350 Pa.Super. 183, 193, 504 A.2d 306, 311 (1986). The burden of proof here is very great: “[Modification of an ‘at-will’ relationship to one that can never be severed without ‘just cause’ is such a substantial modification that a very clear statement of an intention to so modify is required.” Veno, 357 Pa.Super. at 99, 515 A.2d at 578. The courts will not unheedingly infer such an intention. Id. Darlington, 350 Pa.Super. at 197, 504 A.2d at 313. Generally, the question of intent of the parties is a question for the jury. If, however, the resolution of the issue is so clear that reasonable minds would not differ on its outcome, the court may decide. Greene, 363 Pa.Super. at 556, 526 A.2d at 1202. In cases involving implied contracts of employment, the litigant will be able to reach the jury only if he can clearly show that he and the employer intended to form a contract. Id., 363 Pa.Superior Ct. at 551, 526 A.2d at 1200.

We have stated that sufficient additional consideration is one factor which could imply an intention to change the at-will relationship. Greene, 363 Pa.Super. at 555, 526 A.2d at 1202. The argument also has been made that employee handbooks and policy manuals may evidence such an intent. See Banas, supra; Richardson, supra. That is what DiBonaventura’s arguments in this case amount to. The recent cases in which we have discussed this topic are worth examining before we consider the evidence that he has placed before us.

At one point, the unilateral nature of the handbook and policy played an important role in our decisions. In Richardson v. Cole Memorial Hospital, an employee handbook stated that it was the policy of the employer to provide employment to an employee as long as his work proved satisfactory. Richardson, 320 Pa.Super. at 108, 466 A.2d at 1085. We held there that no meeting of the minds had occurred between employer and employee since the handbook and policies had been implemented unilaterally. Id. Since then, we have come to realize that this approach to the issue leads to no resolution. In Greene, we noted that “[mjutuality of obligation is a thoroughly discredited notion. As previously discussed, it is inapplicable to unilateral contracts. Any rule which purportedly derives its legitimacy from this principle is a rule deserving of rapid interment.” Greene, 363 Pa.Super. at 552, 526 A.2d at 1200.

In Martin v. Capitol Cities Media, Inc., 354 Pa.Super. 199, 511 A.2d 830 (1986), we quoted Richardson with approval, but stated that it was unnecessary to analyze the existence of consideration for the handbook, preferring rather to discuss whether or not a reasonable employee in the position of the appellant would understand the employer to be reasonably bound by its representations in the handbook. Martin, 354 Pa.Super. at 212, 511 A.2d at 838; see also Reilly v. Stroehmann Bros., 367 Pa.Super. 411, 420, 532 A.2d 1212, 1217 (1987) (Cirillo, P.J., concurring). Because the issue of whether or not handbooks are bargained for appears to us to be one based upon the mutuality of obligation, and therefore ripe for interment, we see no need to consider the fact that the policies were unilaterally implemented here. Our inquiry will consider the issue of whether or not a reasonable employee in DiBonaventura’s position would have expected the Agreement, policies, and manual that he cites in his amended complaint to provide him with a specific term of employment.

Further, we must consider this court’s en banc decision in Banas v. Matthews International Corp. In that case, an employee handbook was distributed to employees, and ostensibly gave employees permission to make items for personal use. Banas, however, was terminated for making a gravemarker for a relative. Banas, 348 Pa.Super. at 485, 502 A.2d at 648. We held that “if the handbook had contained, if not expressly, at least by clear implication a just cause provision, then appellee’s claim might have merit.” Id., 348 Pa.Superior Ct. at 484-85, 502 A.2d at 648 (emphasis in original deleted). This comports with our holdings in other implied contract cases. We must be extremely reluctant to find that a contract existed when it is based upon anything less than express or at the least clearly implied indications of intent:

This court, however, has repeatedly refused to recognize contractual modification of the at-will rule absent a clear expression of the parties’ intent____ The need for clarity is not unique to the at-will employment cases. A party who wishes to enforce a contract must plead every element of that contract specifically, and clarity is particularly important when the alleged contract is oral____ We cannot give legal significance to vague promises or to statements that reflect only the aspirations or hopes of the employer, whether written or spoken. The ordinary language of friendship and collegiality should not usually bind the speaker or writer as an enforceable obligation.

Clay v. Advanced Computer Applications, Inc., 370 Pa.Super. 497, 511, 536 A.2d 1375, 1383 (1988) (en banc).

DiBonaventura argues that because the employees were to sit down with their supervisors and discuss techniques by which they could better their own performance, and because the appraisals were to be carried out at least once a year on the individual’s employment date, the employer had contracted not to discharge employees except for just cause. DiBonaventura cites to us the following passages from the Agreement and its implementing manual:

The Management Performance Agreement specifies the personal performance standards of each non-agreement employee in the Finance and Administration Department. It is in a sense a contract between the superior and the subordinate as to what will constitute the responsibility areas and expected performance levels of the employee’s job. As such, the terms of this agreement need to be discussed by the two parties until its terms and limits are acceptable to each.
This alignment of personal needs to corporate needs and personal plans to corporate plans is the very nature of commitment, and is, therefore, the surest way to better management performance.
... We expect that Management Performance Agreements will occur regularly at each employee’s anniversary date or at each change in his job status.

DiBonaventura would have us infer from this language that a contract of employment existed between Conrail and himself, and that the duration of that employment could be interpreted in two ways. He argues that the employment period could be determined to be for a one-year period, that is, until the anniversary date of employment, because the employer has implicitly agreed not to terminate the employee unless for cause during that period. He also argues that the period could be until he retires. He bases this argument upon his thirty-six years as a railroad employee, his seven years with the same job status, and what he refers to as a “five year plan” mentioned by his supervisor in a deposition. That “plan” involved forecasting his revenues for the next five years, and was intended to aid the company in projecting its profits.

We find the language of the manual to be vague, and more in the nature of a suggestion of how to implement the Agreement. It in no way supports an inference that a contract was meant to be formed here. It states, “This brochure contains guidelines and general instructions for the Performance Appraisal System____” Examining the language of the manual and the purpose of the Agreement, we cannot infer that the purpose of Conrail in developing the appraisal system was the provision of contractual terms of employment for its non-agreement employees:

Our goal in taking this step is to make the appraisal process more versatile and useful for all non-agreement personnel____ It places more emphasis on planning and control and on management objectives, but it also enables you to control the extent of your participation in the objective-setting process____ [This new form] is designed to help you clarify your goals and what it will take to achieve them.

We further find that the Management Performance Appraisal Agreement is at the most aspirational and indicative of management’s attempt to define goals and improve productivity and efficiency rather than to create an employment contract:

The new Performance Appraisal System emphasizes the need for each of us to set our goals and develop our own plans in light of these corporate objectives and to base our ratings as to the quality of our performance on our ability to successfully achieve them.
In subsequent years, the corporate goal setting process should contribute heavily to the terms of each performance agreement, even if this yearly corporate effort necessitates major adjustments in those terms. The key to this system is the accurate communication of the company’s goals, and the department’s or the unit’s goals to each of us, and the consequent discussed alignment of these with our own personal goals. This is the very nature of “Commitment” and is, therefore, the surest way to better management performance.

The clear inference is that the manual and agreement were meant to increase productivity, better working relations, define expectations for employee achievement, and aid the company in forecasting its revenue for the following years. Donald Weis, one of DiBonaventura’s superiors, stated in deposition that “[the Agreement] was simply a means of sitting down and setting goals in hopes and anticipation that they will be met. We had to do this so that my superiors knew what we set for goals for the department and this was done with all the employees.” This explanation is further supported by the testimony of Gary Calega, who was connected with the Office of Administration and Performance at that time. “The terminology was used to encourage a dialogue between the supervisor and a subordinate with respect to the objectives for the upcoming year____” The inference to be drawn here is that the intention was to create better management within the company, not to provide continual employment for employees.

DiBonaventura also argues that the depositions of supervisory employees, specifically of Samuel Seeman, indicate that Conrail had a policy of discharging its employees only for cause. The federal courts of the Third Circuit have held that if an employee can allege specific facts to show that a custom and policy of discharging an employee only for cause have existed within a company, this may remove an employee from at-will status. Novosel v. Nationwide Ins. Co., 721 F.2d 894, 902-03 (3d Cir.1983); Adams v. Budd Co., 583 F.Supp. 711, 713 (E.D.Pa.1984). DiBonaventura contends that although there was no writing or evidence of a contract in the Budd case, and also no evidence of a custom or policy, all those things are present here, and therefore, summary judgment was improperly granted. We disagree. DiBonaventura has failed to show that any implied contract existed. Seeman’s acquiescence to counsel’s statement that “Conrail won’t just terminate someone without good reasons for doing so” cannot provide the specificity and clarity necessary to show a custom or policy, or needed to modify the at-will employment situation.

After considering all the record evidence placed before us in the light most favorable to DiBonaventura, we cannot hold that it was the intention of Conrail to form a contract with its non-agreement employees. Further, we cannot see that any employee reading the handbooks and policies could reasonably believe that a contract did exist. The intent of the parties is not clear enough from the evidence to allow any court to imply a contract here. For us so to hold would be to turn every appraisal system utilized by management into an employment contract. We are not prepared to so vitiate the at-will doctrine. That is a matter for the legislature.

We hold that DiBonaventura was unable to show with sufficient clarity that the parties intended to modify the at-will employment situation. The trial court did not err in granting summary judgment. Because we find that no contract existed between Conrail and DiBonaventura to alter his at-will employee status, we do not need to consider the question of whether a convenant of good faith and fair dealing can be implied from the record. See Bruffett v. Warner Communications, Inc., 692 F.2d 910 (3rd Cir. 1982).

Order of the trial court is affirmed.


text:
    539 A.2d 871
    Louis GIOVANETTI, Appellant, v. JOHNS-MANVILLE CORPORATION, Amatex Corporation, H.K. Porter Company, Southern Asbestos Company, Eagle-Pitcher Industries, Celotex Corporation, Owens-Corning Fiberglas, Inc., General Refractories Company, GAF Corporation, Unarco Industries, Inc., Fibreboard Corporation, Forty-Eight Insulations, Certainteed Corporation, Keene Corporation and Pacor Corporation. Louis J. GIOVANETTI, Appellant, v. JOHNS-MANVILLE CORPORATION, Amatex Corporation, H.K. Porter Company, Southern Asbestos Company, Eagle-Pitcher Industries, Celotex Corporation, Owens-Corning Fiberglas, Inc., General Refractories Company, GAF Corporation, Unarco Industries, Inc., Fibreboard Corporation, Forty-Eight Insulations, Certainteed Corporation, Keene Corporation and Pacor Corporation.
    Superior Court of Pennsylvania.
    Argued Jan. 20, 1988.
    Filed March 31, 1988.

      John W. Haigis, III, Philadelphia, for appellant.
    John P. Kelly, Philadelphia, for appellees.
    Before CIRILLO, President Judge, and McEWEN and MONTEMURO, JJ.
   CIRILLO, President Judge:

This is an appeal from the Court of Common Pleas of Philadelphia County in which a jury relieved various corporations of liability to Louis Giovanetti for injuries allegedly resulting from his exposure to asbestos. We affirm.

Louis Giovanetti, a New Jersey resident, initiated this action in the Philadelphia Court of Common Pleas to recover for injuries allegedly sustained as a result of exposure to asbestos. The exposure allegedly occurred during his employment as a tinsmith and a welder in both New Jersey and Pennsylvania over the course of nearly thirty years. Giovanetti named various manufacturers and distributors of the asbestos products as defendants. The trial was conducted in reverse bifurcated form, with the questions of damages and causation being determined before liability.

On the second day of trial, the defendants indicated for the first time that they were seeking the application of New Jersey law to the facts of the case. The court complied, and the jury was told to disregard any of counsel’s opening arguments that were based on the application of Pennsylvania law. The jury determined that Giovanetti suffered no compensable injury as a result of his exposure to asbestos, thereby obviating the need to proceed to the second phase of the trial. Giovanetti filed for post-trial relief, which was denied. This appeal followed.

Giovanetti contends that he should be granted a new trial for the following reasons: (1) the inherently prejudicial effect of the court’s application of New Jersey law at the appellee’s behest when both parties had completed a portion of the trial with the tacit understanding that Pennsylvania law would apply; (2) the internally inconsistent nature of the jury’s verdict, as evidenced by their answers to special interrogatories; and (3) the impropriety of the verdict as against the weight of the evidence.

Giovanetti first contends that he was prejudiced by the application of New Jersey law to the facts of his case. Although he does not suggest that the choice of New Jersey law was invalid, he maintains that Pennsylvania law should have been chosen in light of the tacit agreement among the parties that Pennsylvania law would apply. This agreement, according to Giovanetti, was evidenced by the fact that before the conflict of law issue was raised, twenty-three of the twenty-nine points for binding instruction submitted to the court by the appellees referred to Pennsylvania cases, and none referred to New Jersey law. Additionally, counsel for both parties based their opening statements on Pennsylvania law and Giovanetti had already presented his first witness, whose testimony was based on Pennsylvania law.

When faced with choice of law questions, Pennsylvania courts have abandoned the rule of lex loci delicti in favor of a less restrictive approach combining the methodologies of a “government interest analysis” and the “significant relationship” approach of the Restatement (Second) of Conflicts § 145 (1971). See also Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964). The paramount consideration under this analysis is:

the extent to which one state rather than another has demonstrated, by reason of its policies and their connection and relevance to the matter in dispute, a priority of interest in the application of its rule of law.

McSwain v. McSwain, 420 Pa. 86, 94, 215 A.2d 677, 682 (1966). Furthermore, in reviewing the relative interests of each jurisdiction in a cause of action, Pennsylvania courts will weigh their respective contacts qualitatively, rather than quantitatively. See Cipolla v. Shaposka, 439 Pa. 563, 267 A.2d 854 (1970).

In weighing the relative interests of Pennsylvania and New Jersey in this particular litigation, we conclude that New Jersey law is more appropriately applied. Because six of the appellee corporations are Pennsylvania-based, Pennsylvania can certainly be viewed as possessing a legitimate interest in ensuring that Pennsylvania companies do not manufacture or distribute hazardous products which cause injury. That interest, however, is clearly eclipsed by the numerous contacts between New Jersey and the present cause of action. Giovanetti, a resident of New Jersey, spent twenty-seven of his working years in New Jersey, as opposed to only two years working in Pennsylvania. Any relationship he had with the manufacturers and distributors of the asbestos products was centered in New Jersey. Considering the fact that asbestos-related disease is proportionally related to the extent and duration of exposure, it is not unreasonable to assume that any injury he may have suffered as a result of exposure to asbestos occurred primarily in New Jersey. Furthermore, all of the appellees were doing business in New Jersey at the time of his alleged exposure. New Jersey, then, has a compelling interest in seeing that its citizens are compensated for injuries which occurred within its borders, allegedly as a result of the appellees’ business there.

In light of the quality and number of contacts between New Jersey and Giovanetti’s exposure to asbestos, it is clear that the trial court properly applied New Jersey law. In so holding, we reject Giovanetti’s initial contention that either New Jersey or Pennsylvania law could have been applied under a Griffith analysis. Giovanetti further argues, however, that his case was prejudiced by the timing of the appellees’ request. Specifically, he suggests that the defense’s belated request that New Jersey law be applied confused the jury, hampered him in the presentation of his case, and prejudiced his right to recover.

Regardless of the theorized effect of the appellees’ mid-trial request that New Jersey law should apply, Giovanetti’s claim must fail for the simple reason that the application of New Jersey law to the facts of the case put him in no worse a position than he would have been in had Pennsylvania law been applied. In fact, an analysis of the respective laws of the two states reveals that Giovanetti actually benefits from the application of New Jersey law.

The primary difference between the laws of Pennsylvania and New Jersey with respect to the litigation of asbestos-related suits is fundamental. Pennsylvania treats all injuries arising from the same tortious conduct of a defendant as one cause of action subject to the standard limitations period. See Cathcart v. Keene Industrial Insulations, 324 Pa.Super. 123, 471 A.2d 493 (1984). Because of the constraints such an approach imposes on a plaintiff’s ability to obtain compensation for foreséeable, but distant injuries arising from the same tortious conduct, Pennsylvania courts allow an injured plaintiff to produce expert testimony as to the possible future effects of that conduct. See Schwegel v. Goldberg, 209 Pa.Super. 280, 228 A.2d 405 (1967). Thus, if Pennsylvania law is applied, Giovanetti would be able to recover for any injuries he could presently prove as well as for the increased risk of cancer. On the other hand, New Jersey recognizes cancer as an injury separate and distinct from asbestosis and considers the cause of action for such an injury to accrue only when the individual has discovered, or should have discovered, that he has cancer. See, e.g., Herber v. Johns-Manville Corp., 785 F.2d 79 (3rd Cir.1986).

Thus, the application of New Jersey law can be viewed as actually benefiting Giovanetti rather than hindering his cause of action. Because the jury determined that he suffered no compensable present injury as a result of his exposure to asbestos, it is unlikely that they would have awarded him damages based on an increased risk of cancer under Pennsylvania law. This is especially true when Giovanetti himself testified that he was advised that the risk of cancer was “damn near none.” Should that risk ever become realized, Giovanetti would be free to pursue a future action in his home state and would not be barred by either a statute of limitations period or res judicata, because New Jersey recognizes asbestosis and asbestos-related cancer as two distinct actions.

With respect to the “timing” issue, we find no merit in Giovanetti’s claim that, in requesting that New Jersey law be applied, the appellees violated a tacit agreement that Pennsylvania law would apply. This agreement, as envisioned by Giovanetti, was based primarily on the defense’s submission of points for binding instructions which cited Pennsylvania cases almost exclusively. Although the numerous and substantial contacts between New Jersey and the present litigation would lead us to believe that both parties should have recognized the possible application of New Jersey law to the case, we recognize that points for instruction are often submitted to the court in a prefabricated or “canned” form. Thus, although defense counsel committed some degree of error in submitting instructions based on Pennsylvania law, we are not prepared to find that they did so with the intent to mislead Giovanetti.

Furthermore, as a result of the jury’s finding that Giovanetti suffered no compensable present injury as a result of his asbestos exposure, it was unlikely that he could have proven a compensable risk of future injury under Pennsylvania law. Therefore, we fail to see how he was prejudiced by the adoption of New Jersey law after he had elicited testimony as to that risk, especially when New Jersey law permits a later suit if that risk becomes realized. As to Giovanetti’s claim that the mid-trial shift in law unduly confused the jury, we are satisfied that the trial judge’s exhaustive instructions that they should disregard only those arguments made pursuant to Pennsylvania law were sufficiently clear to safeguard against any possible prejudice. In light of the foregoing, we reject Giovanetti’s claim that the application of New Jersey law was prejudicial to his cause of action.

Giovanetti next maintains that the jury’s answers to the special interrogatories are inherently contradictory and are based upon some mistake or misapprehension on their part. At the close of the evidence in the first phase of the trial, the jury was charged and sent out to deliberate with special interrogatories. The first interrogatory asked, “Did Louis Giovanetti sustain personal injuries as a result of exposure to asbestos?” The jury responded affirmatively. The second question asked, “Was asbestos a substantial factor in causing the injuries alleged by Louis Giovanetti?” to which the jury responded, “no.” Because of the allegedly contradictory answers, Giovanetti contends that the verdict should have been stricken and he should be granted a new trial.

Giovanetti’s claim with respect to these two questions arises as a result of his mistaken interpretation that they ask the same thing. That is, he considers both questions to revolve around the same quantum of injury. A close examination of both questions reveals that the second question was specifically designed to encompass the broader range of alleged injuries, while the first question deals only with injuries actually sustained. The logical inference presented by these questions is that, although Giovanetti may have suffered some form of injury from his exposure to asbestos, that exposure may not have been the substantial cause of the broader range of injuries for which he is seeking compensation. Thus, in order for us to entertain Giovanetti’s interpretation of the two questions, we would first be forced to conclude that in phrasing the question, counsel intended to be redundant. On the other hand, if we were to accept that the second question was designed to introduce a relevant concept of causation independent of the existence of injury alone, both questions and answers could be seen to be consistent.

It is well established law in Pennsylvania that there is a presumption of consistency with respect to a jury’s findings which can only be defeated when there is no reasonable theory to support the jury’s verdict. See Hornak v. Pittsburgh Ry. Co., 433 Pa. 169. 249 A.2d 312 (1969). As demonstrated, the two interrogatories are not only consistent, they also reflect a clarification of a fundamental question of causation. Furthermore, if Giovanetti had entertained any dispute as to the form or content of the questions, he has waived it by failing to object to the interrogatories at trial. See Dilliplaine v. Lehigh Valley Trust Company, 457 Pa. 255, 322 A.2d 114 (1974). Consequently, we dismiss Giovanetti’s second claim as meritless.

Giovanetti’s final contention is that the jury’s verdict was against the weight of the evidence. In support of this claim, Giovanetti recounts the testimony of both medical experts who concluded that he had contracted pleural fibrosis as a result of the inhalation of asbestos fibers and, consequently, that he suffered from a greater risk of cancer. In light of this testimony, Giovanetti maintains that the jury should have concluded that his physical problems must also have been caused by asbestos.

In dealing with issues involving the weight of the evidence, Pennsylvania courts will not grant a new trial unless the verdict is so contrary to the evidence as to shock the court’s sense of justice. See Morgan v. Philadelphia Electric Co., 299 Pa.Super. 545, 445 A.2d 1263 (1982). The evidence presented by Giovanetti disclosed that he was victim to a variety of significant medical problems, the most prominent of which was pleural thickening. He also complained of pain upon walking distances, the inability to lift heavy objects, and occasional sleeping trouble. The simple presence of pleural thickening, however, does not mandate a jury finding of compensable injury for an otherwise healthy plaintiff. See Herber v. Johns-Manville, 785 F.2d 79 (3d Cir.1986). In determining whether damages should be awarded, it was incumbent upon the jury to determine whether such symptoms as pleural thickening, in conjunction with Giovanetti’s other complaints, constituted an injury substantially caused by exposure to asbestos.

At trial, the defense presented a significant amount of evidence suggesting that Giovanetti’s medical complaints actually stemmed from sources other than asbestos. For example, evidence was presented that Giovanetti suffered from a previous heart condition, shoulder problems, exposure to coke dust, hernia, and ulcers. Apart from his claim of posterior chest pain, Giovanetti produced no evidence on the record linking these multiple conditions with asbestos. In fact, Giovanetti’s own expert testified that, other than pain, Giovanetti exhibited no other symptoms of pleural disease. In response to this testimony, the defense presented a medical expert who testified that pleural thickening such as that exhibited by Giovanetti was not consistent with the pain he described. In light of the verdict reached, it is clear that the jury either believed the defense expert who denied a link to asbestos, or disbelieved Giovanetti’s claim of chest pain. When the jury is faced with a contradiction in testimony, it is their duty to resolve the issue against one party and in favor of another, and a new trial should not be granted on a mere conflict in testimony. See Baldino v. Castagna, 505 Pa. 239, 478 A.2d 807 (1984). Accordingly, we reject Giovanetti’s final issue on appeal.

Order affirmed.


author: BECK, Judge:

text:
    539 A.2d 876
    Joseph J. LOEFFLER and Margaret A. Loeffler v. Edward J. McSHANE and Rosemary McShane, H/W and Eastern Abstract, Inc. and First American Title Insurance Company and Charles J. Zone and Erma Moore and Stephen McShane and Freida McShane, Co-Partners T/A McShane Realty. Appeal of Charles J. ZONE.
    Superior Court of Pennsylvania.
    Argued Oct. 28, 1987.
    Filed March 31, 1988.

      Joseph P. Caracappa, Fairless Hills, for appellant.
    William T. Renz, Doylestown, for Loeffler, appellees.
    Before CAVANAUGH, BECK, and HESTER, JJ.
   BECK, Judge:

This is an appeal by Charles J. Zone, the principal corporate officer and part owner of Eastern Abstract, Inc., a title insurance company. The issue is whether a corporate officer who supervises a settlement on the refinancing of a mortgage may be held personally liable for the loss suffered by the mortgagors when he negligently authorized the payment of the mortgagors’ settlement funds to the wrong party. The Court of Common Pleas of Bucks County determined that appellant Zone was liable in his individual capacity to the mortgagors, Edward and Rosemary McShane. We affirm the order of the trial court.

The facts of this case are not in dispute. We incorporate the following statement of facts which appeared in the excellent opinion of Judge George T. Kelton.

This action of mortgage foreclosure was filed after a series of events in which original defendants and mortgagors, Edward and Rosemary McShane, sought to refinance a mortgage on a property owned by them and located at 1538 Super Highway, Middletown Township, Bucks County, Pennsylvania. The original plaintiffs in this action were Joseph and Margaret Loeffler, holders of the first mortgage on the property. Joseph Loeffler has died since the commencement of this lawsuit, and his interest in the litigation has passed to his widow, Margaret Loeffler.

Intending to refinance the Loeffler mortgage, Mr. and Mrs. McShane decided to borrow $61,500.00 from Heritage Bond and Mortgage Company. These funds were to be used in part to satisfy the McShane’s mortgage to the Loefflers. The amount due thereon was approximately $49,900.00.

The McShanes requested additional defendant, Eastern Abstract, Inc., an agency of additional defendant, First American Title Insurance Company, to provide title insurance. The title insurance was to be issued with First American as the insurer and the settlement to be conducted by First American’s agent, Eastern Abstract. Settlement was held on January 19, 1979 at the offices of Eastern Abstract.

At settlement, Eastern Abstract did not secure a payoff statement from the mortgagee-plaintiffs, the Loefflers; instead, it secured a statement from the defendant, Edward McShane, one of the mortgagors. Then, when the proceeds of settlement were distributed by Eastern Abstract, the check to pay off the original Loeffler mortgage, instead of being made payable to the Loefflers, was made payable to “McShane Realty, agent for Joseph and Margaret A. Loeffler.”

McShane Realty was a partnership consisting of additional defendants Stephen McShane and Frieda McShane (Edward’s brother and mother respectively). The settlement check of $49,782.47 was deposited by the realty company in its own accounts, never was paid to the Loefflers and ultimately was used to pay McShane Realty business obligations.

This check was prepared and issued by Erma Moore, the settlement clerk for Eastern Abstract, Inc. Although Ms. Moore had no distinct recollection of the settlement itself, she did testify that she would not have made the check out in such a manner unless she had either received authorization from her superior, additional defendant, Charles J. Zone, the principal corporate officer of Eastern Abstract, or had received written authorization from the Loefflers. Ms. Moore further testified that in either event, she would have made a notation as to the manner of authorization in the settlement file.[] Mrs. Loeffler testified that she gave no such authorization. Mr. Zone testified that he “might have” approved the transaction because he was aware of the fact that Stephen McShane of McShane Realty had served as agent for the Loefflers in the past. He stated that he thought he “would have” given authorization to the title clerk to change the payee.

Trial Court Op. at 1-3.

At the conclusion of a non-jury trial, the court found that Mr. Zone had in fact been the one who authorized the payment of settlement funds to McShane Realty. The trial court also concluded that Mr. Zone had conducted the settlement in a negligent manner. On October 21,1986, the court announced on the record: 1) that the original mortgage on the home of Edward and Rosemary McShane was unpaid; 2) that mortgagors Edward and Rosemary McShane were liable to mortgagee Margaret Loeffler, and 3) that Mr. Zone, Eastern Abstract, First American Title Insurance Company and Stephen and Frieda McShane of McShane Realty were each jointly and severally liable to Edward and Rosemary McShane. Following the filing of exceptions, the court confirmed its decision and entered a final order on April 20, 1987.

The sole question raised on appeal is whether Mr. Zone is immune from tort liability. Appellant Zone does not contest the trial court’s conclusion that he is a tortfeasor. Zone instead argues that the trial court erred as a matter of law by holding him personally liable for the damage caused by his negligence. This argument is without merit.

Under Pennsylvania law, the general rule is that the owners and managers of corporations may be held financially accountable for their wrongful, injury-producing conduct. See, e.g., The Village at Camelback Property Owners’ Ass’n v. Carr, 371 Pa.Super. 452, 463, 538 A.2d 528, 533-34 (1988); Moy v. Schreiber Deed Security Co., 370 Pa.Super. 97, 535 A.2d 1168 (1988); Shonberger v. Oswell, 365 Pa.Super. 481, 530 A.2d 112 (1987); Bank of Landisburg v. Burruss, 362 Pa.Super. 317, 524 A.2d 896 (1987).

In Wicks v. Milzoco Builders, Inc., the Pennsylvania Supreme Court set forth the following standard for assessing the liability of a corporate officer:

Pennsylvania law recognizes the participation theory as a basis for tort liability.
The general, if not universal, rule is that an officer of a corporation who takes part in the commission of a tort by the corporation is personally liable therefor; but that an officer of a corporation who takes no part in the commission of the tort committed by the corporation is not personally liable to third persons for such a tort, nor for the acts of other agents, officers or employees of the corporation in committing it, unless he specifically directed the particular act to be done or participated, or cooperated therein.

503 Pa. 614, 621, 470 A.2d 86, 90 (1983) (citing 3A Fletcher, Cyclopedia of the Law of Private Corporations § 1137, at 207 (perm. ed. rev. 1975)). The Court further stated that under the participation theory, a corporate officer is liable for “misfeasance”, i.e., the improper performance of an act, but not “mere nonfeasance”, i.e., the omission of an act which a person ought to do. Id., 503 Pa. at 621, 470 A.2d at 90.

We find that the trial court properly applied the participation doctrine to the facts of the case sub judice. The trier of fact found that appellant “specifically directed the particular act to be done” which resulted in the loss of the mortgagors’ settlement funds. The record clearly supports an inference that appellant, without first obtaining the permission of either the mortgagor or the mortgagee, ordered his clerk to pay the settlement check to a party who was not authorized to receive the check. This active involvement in the misallocation of funds involved both misfeasance and negligence. The combination of the two is clearly sufficient to support a finding of personal liability on the part of a corporate officer. See Malone v. Pierce, 231 Pa. 534, 80 A. 979 (1911) (president of corporation individually liable for negligently ordering change in method by which land was to be excavated); Amabile v. Auto Kleen Car Wash, 249 Pa.Super. 240, 376 A.2d 247 (1977) (engineer who acted as agent for corporation may be held individually liable for designing car wash in negligent manner).

Appellant maintains that the participation doctrine does not apply where a person is injured by a corporate officer after making an informed decision to enter into a business relationship with the corporate entity. He notes that Edward and Rosemary McShane chose Eastern Abstract to handle the refinancing of their mortgage, that the McShanes were aware that Eastern Abstract had been incorporated under the laws of Pennsylvania, and that the McShanes have a full right of action directly against Eastern Abstract. With this in mind, he cites Bala Corporation v. McGlinn, 295 Pa. 74, 79, 144 A. 823, 824 (1929) for the proposition that “one who deals with a corporation, knowing it to be such, cannot enforce an individual liability against the officers or agents who act for the corporation.” See also W.F. Meyers Co. v. Stoddard, 363 Pa.Super. 481, 526 A.2d 446 (1987).

The flaw in this reasoning is that Bala Corporation limits individual corporate liability only within the context of an action for breach of contract. See Wicks v. Milzoco Builders, Inc., 503 Pa. at 620-21, 470 A.2d at 89. Bala Corporation simply applied the familiar legal doctrine that “[w]henever a corporation makes a contract, it is the contract of the legal entity of the artificial being created by the [corporate] charter, and not the contract of the individual members.” 295 Pa. at 79, 144 A. at 824. Thus, the breach of the contract is the breach of a promise made by the corporation, and not the breach of any promise extended by the corporate officer. It follows that only the corporation may ordinarily be held liable for contract damages.

On the other hand, in a tort action, even if the plaintiff has entered into a contractual relationship with the corporation, the corporate officer is not insulated from liability. See Shonberger v. Oswell, supra (clothing supplier who entered into consignment agreement with corporation may maintain conversion action against corporate president). This is because the basis for tort liability is not the breach of the contract with the corporation but rather the breach of an independent legal obligation to avoid injury to the plaintiff. Such an obligation will often exist precisely because the law imposes special duties on parties who deal with one another in a business setting. See generally Prosser and Keeton on the Law of Torts § 92, at 657-58 (5th ed. 1984).

In the case sub judice, the trial judge concluded that as principal corporate officer of the title insurance company, appellant owed the mortgagors a duty to use reasonable care in handling their financial resources. On appeal, appellant has not denied that this duty exists or that this duty was violated. We therefore conclude that appellant was guilty of misconduct, and that he should not be permitted to shift the blame for his own affirmative misconduct to the corporation. As the Pennsylvania Supreme Court stated in the Wicks case: “The fact that an officer is acting for a corporation also may make the corporation vicariously or secondarily liable under the doctrine of respondeat superior; it does not however, relieve the individual of his responsibility.” 503 Pa. at 619 n. 5, 470 A.2d at 89 n. 5 (citing Donsco, Inc. v. Casper Corp., 587 F.2d 602, 606 (3d Cir.1978)).

The trial court’s imposition of joint and several liability was proper. Order affirmed.

      . Mr. Zone testified at trial that the settlement file could not be located.

      . We need not reach the issue of whether a corporate officer could be held strictly liable in his individual capacity in the absence of any evidence of a culpable state of mind or of a failure to observe reasonable commercial standards. See Bank of Landisburg v. Burruss, 362 Pa.Super. at 327, 524 A.2d at 901 n. 6.

      . A corporate officer is of course liable for the breach of any promises or representations which he extends not in his capacity as an officer but personally in his individual capacity. The Village at Camelback Property Owners Ass'n, supra, 371 Pa.Super. at 463, 538 A.2d at 534. Moreover, if a corporate officer is also a shareholder in the corporation, in appropriate circumstances, he may be held individually liable under the equitable doctrine of piercing the corporate veil. Id., 371 Pa.Super. at 461, 538 A.2d at 532-33. See also 8A Pennsylvania Law Encyclopedia Corporations § 281 (1971) (discussing contractual liability of corporate officers).


author: DEL SOLE, Judge:

text:
    539 A.2d 880
    Marvin G. SWEITZER, Appellant, v. DEMPSTER SYSTEMS, a DIVISION OF CARRIER CORPORATION and Becker Equipment Company and Parker Industries, Inc., Appellees.
    Superior Court of Pennsylvania.
    Argued Dec. 2, 1987.
    Filed March 31, 1988.

      Bishop N. Kauffman, York, for appellant.
    Robert J. Brown, York, for Dempster, appellees.
    Before OLSZEWSKI, DEL SOLE and JOHNSON, JJ.
   DEL SOLE, Judge:

On July 17, 1980, Appellant-Marvin G. Sweitzer was employed by John G. Neiderer & Sons, a trash removal corporation. Sweitzer’s responsibilities included the collection of waste from dumpster containers after they were automatically lifted into the back of a garbage truck. On the date in question, Sweitzer’s arm was severely injured when a container fell from the rear of the truck as it was being raised from the ground. Sweitzer proceeded to trial on a product liability theory alleging that the mechanism which lifted the trash containers was defectively designed.

Appellee-Dempster Systems was the manufacturer of the “Route King I”, the emptying mechanism attached to Neiderer & Sons’ garbage truck. The “Route King I” involved in the accident had been sold to Neiderer & Sons by Becker Equipment Company several years after it had been manufactured. The “Route King I” was originally manufactured with a safety device designed to prevent the garbage containers from slipping as they were emptied into the truck. Testimony at trial indicated that this safety device, known as a container lock, had been removed prior to its sale to Neiderer & Sons by Becker.

Prior to the case going to trial, Sweitzer’s claim against Becker was settled. Yet, Becker remained in the suit as a defendant since it had participated in placing the “Route King I” in the stream of commerce. Following trial, the jury returned a verdict in Sweitzer’s favor and against Becker for $85,000. The verdict also found in Dempster’s favor and against Sweitzer. Post-trial motions were filed and later denied by the trial court. This timely appeal follows.

Sweitzer raises the following three issues on appeal:
1. Is Plaintiff, Marvin G. Sweitzer entitled to a new trial due to the refusal of the court to provide instruction or guidelines to the jury on the issue of foreseeability;
2. Is Plaintiff, Marvin G. Sweitzer entitled to a new trial on the strength of the fact that the jury’s verdict is inconsistent with both the evidence presented and with the applicable law governing strict liability and products liability; and,
3. Is Plaintiff, Marvin G. Sweitzer entitled to a new trial because of the prejudicial error arising from Defendant Dempster’s counsel’s cross examiniation [sic] of the Plaintiff on the issue of Plaintiff’s need to work?

We reverse and remand for a new trial.

Sweitzer’s initial argument is that the trial court erred in refusing to instruct the jury on foreseeability with respect to the fact that the container lock had been removed thereby causing the accident which resulted in his arm injuries. It was Sweitzer’s position during trial that, had the container lock been in place at the time of the accident, the dumpster container would not have fallen from the truck. In addition, Sweitzer averred that the “Route King I” should have been equipped with an interlock system which would have prevented the operation of the lifting mechanism when the container lock was either removed or not in place.

Our scope of review in assessing a trial court’s denial of a motion for a new trial is whether the trial court clearly and palpably abused its discretion or committed an error of law which controlled the outcome of the case. Stevenson v. General Motors Corp., 513 Pa. 411, 521 A.2d 413 (1987). Where the motion for a new trial is based upon the sufficiency of the jury charge, we must examine the charge in its entirety against the background of the evidence to determine whether error was committed. If an appellate court concludes that the charge was erroneous, a new trial will be granted only if the jury charge might have prejudiced the appellant. A new trial will be granted even though the extent to which the appellant has been prejudiced is unascertainable. Gallo v. Yamaha Motor Corporation USA, 363 Pa.Super. 308, 321-322, 526 A.2d 359, 366 (1987).

The general view espoused by this Commonwealth in product liability cases is that a manufacturer or seller of a defective product is liable for harm caused thereby where the product is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. Restatement (Second) of Torts, § 402A. See: Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966) (§ 402A adopted as the law of Pennsylvania). However, where it has been found that the product has reached the consumer with substantial change, the question then becomes whether the manufacturer could have reasonably expected or foreseen such an alteration to its product. Eck v. Powermatic Houdaille, 364 Pa.Super. 178, 527 A.2d 1012, 1018 (1987), citing, D’Antona v. Hampton Grinding Wheel Co., 225 Pa.Super. 120, 125, 310 A.2d 307, 310 (1973).

The role of foreseeability in a product liability case is consistent with the broad and sound social policy underlying § 402A; that is, as between an innocent user of a product and a manufacturer or seller who is engaged in the business of manufacturing or selling a product, risk of loss for injuries resulting from the use of a defective product shall be borne by the manufacturer and/or seller. Salvador v. Atlantic Steel Boiler Co., 457 Pa. 24, 319 A.2d 903, 907 (1974). It follows that “[i]f the manufacturer is to effectively act as the guarantor of his product’s safety, then he should be held responsible for all dangers which result from foreseeable modifications of that product.” Eck, supra, at 527 A.2d at 1019, quoting Merriweather v. E. W. Bliss Co., 636 F.2d 42 (3d Cir.1980).

Instantly, Dempster posits that a charge on foreseeability would have been inappropriate inasmuch as Sweitzer’s case was based on the allegation that its product was defectively designed. Dempster further argues that the jury verdict established that it was Becker’s removal of the container lock, and not the design of the “Route King I”, which caused Sweitzer’s injury. We disagree.

At trial, the expert testimony of Robert I. Weiner was offered by the plaintiff concerning the design of, and the problems associated with, the safety mechanism of Dempster’s product. Weiner testified as follows:

Q. Thank you, Mr. Weiner. Now, Mr. Weiner, we have heard testimony in this case from Mr. John Neiderer, Jr., that these container locks were not in place on the truck that Marvin Sweitzer was hurt on and that he, in fact, removed them from an earlier Route King I, was the removal or the nonuse of those container locks something foreseeable?
A. Yes, in my opinion.

(N.T., 174). The witness elucidated by stating that the design of the container lock was not compatible with the environment of the garbage truck. The environment was characterized as follows:

[t]he environment that the lock has to see continuously is one of heavy loads, a lot of vibrations, corrosions, a lot of the constant garbage is spilled on it, it’s out in the rain all the time, and with that environment that little bolt and the load on that container lock, if it is struck in any way by the hinge bar of the container, and it could be continuously in loading and unloading operation, can easily become bent or corroded. Eventually, that lock is going to bind.
* * * * * #
[I]f you do get any binding, you don’t have the leverage to move that lock up or down without having to use a tool like a hammer or crow bar to beat it up and down to beat it into submission that is done conclusive to a part that’s going to stay on the truck. Especially, when you have a piece of — if you have problems like that all of the time, that bar is going to be taken off the truck.

(N.T., 174-180). Finally, Weiner was asked whether he had an opinion with a reasonable degree of engineering certainty as to the cause of Sweitzer’s accident. Weiner replied:

[t]he can came off the cheeks because the container locks were not present and the container locks were improperly designed, making them inconvenient to use so that they were taken off and had an interlock been involved in this design when they took the container locks off, they wouldn’t have been able to operate the truck.
$ * 3jC * }¡C >|C
[t]he safety locks didn’t work properly and were prone not to work by design and that’s what caused people to take them off the truck. They weren’t convenient. They were a pain.

(N.T., 198-196).

We are satisfied from these excerpts of the testimony that Sweitzer indeed introduced evidence concerning the foreseeability of the removal of the “Route King I” container locks. That Sweitzer’s product liability case was characterized as one based on design defect did not foreclose the introduction of evidence that part of the inherent design defects associated with the product was that container locks were prone to breakdown and would foreseeably be removed by a consumer. Based on the above-cited testimony introduced at trial, the jury should have been instructed that foreseeability was a factor to be considered in determining whether Dempster would be held responsible for injuries resulting from postsale product modification. Accordingly, we find that the trial court erred in refusing Sweitzer’s request for a foreseeability charge thereby possibly prejudicing the plaintiffs case.

The judgment is reversed; the case is remanded for a new trial. Jurisdiction is relinquished.

      . Due to the decision we reach on Sweitzer’s first issue, we need not consider the remaining two issues.


author: OLSZEWSKI, Judge: CAVANAUGH, Judge,

text:
    539 A.2d 883
    In the Matter of the ADOPTION OF S.B.B. and E.P.R. Appeal of E.O.B. and S.L.R. Appeal of YORK COUNTY CHILDREN AND YOUTH SERVICES.
    Superior Court of Pennsylvania.
    Argued Feb. 3, 1988.
    Filed March 29, 1988.

      John J. Moran, II, York, for appellants.
    Carolyn S. Lasky, York, for appellees.
    Before CAVANAUGH, OLSZEWSKI and POPOVICH, JJ.
   OLSZEWSKI, Judge:

This is an appeal from an order of the trial court terminating the parental rights of appellants. Appellants claim that the trial court erred in (1) refusing to grant appellants’ motions for a continuance and (2) finding sufficient grounds to terminate appellants’ parental rights. For reasons discussed below, we affirm the determination of the trial court.

On December 11, 1981, following the death of the six-week-old son of E.O.B. and S.L.R., appellants, the York County Children and Youth Services (YCC & YS) filed a dependency petition with the York County Court of Common Pleas, Juvenile Division, regarding the couple’s daughter, E.P.R. The trial court adjudicated E.P.R. dependent on December 14, 1981, and placed legal and physical custody with YCC & YS. Soon after another child, S.B.B., was born in 1983, the court adjudicated her dependent and also placed legal and physical custody with YCC & YS.

On December 28, 1983, YCC & YS filed separate petitions to terminate the parental rights of appellants as to E.P.R. and S.B.B. The trial court entered a decree nisi, denying the petitions. On August 16, 1985, this Court remanded the case for a rehearing. Appellants were not present at the rehearing, which convened on February 27, 1986. E.O.B., who had been convicted of third-degree murder for the death of his son, had fled to Virginia Beach, Virginia. In December 1985, authorities in Virginia Beach had taken E.O.B. into custody on a fugitive warrant. S.L.R. had gone to Virginia Beach to be with E.O.B. The trial court denied appellants’ request for a continuance. On December 19, 1986, the trial court entered an adjudication and a decree nisi terminating the parental rights of appellants.

Appellants claim that the trial court should have granted a continuance because E.O.B. was incarcerated in a state correctional institution and S.L.R. was unable to arrange transportation to the hearing. Appellant, however, cites nothing in the Adoption Act or in case law which mandates the presence of the parent whose rights are the subject of the termination petition. See In Re: B.M.D. and R.L.D., 492 Pa. 454, 424 A.2d 1278 (1981). Therefore, the grant or denial of a continuance is within the discretion of the trial court and will not be disturbed absent an abuse of discretion. Id.; see also Princess Hotels Internat’l v. Hamilton, 326 Pa.Super. 226, 473 A.2d 1064 (1984).

Pa.R.C.P. 216 provides the following grounds for continuance:

(1) Agreement of all parties or their attorneys, if approved by the Court;
(2) Illness of counsel of record, a material witness, or a party....;
(3) Inability to subpoena or to take testimony by deposition, commission, or letters rogatory, of any material witness, shown by affidavit ...;
(4) Such special ground as may be allowed in the discretion of the court.

Pa.R.C.P. 216.

We find none of the above enumerated grounds present in the instant case. Further, we determine that the trial court did not abuse its discretion in refusing to grant appellants’ request when they voluntarily left the jurisdiction and were not present for the hearing.

Next, appellants claim that there was not clear and convincing evidence to support the termination of their parental rights. Our Supreme Court has recently reiterated that:

[T]he scope of appellate review where the Orphan’s Court has involuntarily terminated a natural parent’s right to a child is limited to the determination of whether the decree of termination is supported by competent evidence. See In re Adoption of Faith M., 509 Pa. 238, 240, 501 A.2d 1105, 1106 (1985), and cases cited therein. The burden is on the party seeking termination to show by “clear and convincing” evidence that grounds to terminate exist. Id. at 240, 501 A.2d 1106; In the Matter of the Adoption of G.T.M., 506 Pa. 44, 46, 483 A.2d 1355, 1356 (1984).

In the Matter of the Adoption of C.A.E., 516 Pa. 419, 421-422, 532 A.2d 802, 803-804 (1987).

Instantly, the juvenile court determined that appellee had satisfied two of the grounds for involuntary termination of the rights of a parent contained in the Adoption Act. The pertinent section of the Act provides:

(a) General rule. — The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:
(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent____
(5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child____

23 Pa.C.S.A. § 2511.

In determining that appellee had met its burden of showing by clear and convincing evidence that the statutory grounds were met, the juvenile court adopted the findings of fact from the July 10, 1984, adjudication and made additional findings of fact. These findings of fact are summarized as follows.

Until December 1981, E.P.R. resided with her parents, the appellants, who were not married to each other. E.O.B. was married to Donna Barshinger, who also lived in the residence with both parents of the children. In October, 1981, D.M.B. was born to appellants. Six weeks later, the child died as the result of brain injury caused by pressure inflicted upon his skull by E.O.B. Appellees subsequently petitioned the juvenile court alleging that the death indicated potential danger to E.P.R. if left in the custody of her parents. The court adjudged E.P.R. dependent and temporary custody was awarded to appellees. Soon after S.B.B. was bom in 1983, appellees similarly petitioned the juvenile court. By agreement of both parents, S.B.B. was adjudged dependent and custody was placed with the agency.

At hearings before the juvenile court in 1982 and 1983, appellants were granted visitation rights and were instructed to obtain therapy and correct the family living situation. Appellants, however, only visited the children ten times in thirty-two weeks, failed to regularly attend therapy sessions, and refused to correct the living situation.

A clinical psychologist testified that in his opinion, S.L.R. was unstable, impulsive, rebellious, unpredictable, and uncleanly. A nurse testified that S.L.R. admitted to using drugs during the early months of her pregnancy with E.P.R. and continued to use drugs. Further evidence established that S.L.R. failed to visit her children because she went to Virginia Beach to be with E.O.B., whom she accompanied while he was fleeing to prevent service of a prison term for the murder of his son.

The juvenile court concluded that (1) both children had been the subject of repeated and continuous incapacity or neglect by their parents, leaving the children without essential parental care necessary for their well-being; (2) both children had been removed from the care of their parents for a period of six months pursuant to a court order, and that the conditions that led to the removal continued to exist; (3) the conditions of the incapacity or neglect could not or would not be remedied by the parents within a reasonable period of time; and (4) termination of the parental rights of each parent would best serve the needs and welfare of each child.

We find that the juvenile court’s conclusions are supported by the record. Therefore, the determination of the trial court will not be disturbed.

The order of the juvenile court is affirmed.

CAVANAUGH, J., dissents.

CAVANAUGH, Judge,

dissenting:

I respectfully dissent from the majority’s disposition of the instant appeal. Regardless of the facial merit of the claim for termination, the nature of the action requires a deliberate recognition of the natural parents’ due process rights. This court has consistently recognized that “[T]he finality of termination of a natural parent’s rights to his child and the harsh connotations thereof carry great emotional impact on both child and parent and for that reason the law has been unwilling to terminate a natural parent’s rights unless the record clearly warrants such a finding.” In re Adoption of P., 475 Pa. 197, 204, 380 A.2d 311, 314 (1977) (citation omitted); In Re Santelia, 318 Pa.Super. 413, 417, 465 A.2d 21, 23 (1983) (when considering the involuntary termination of parental rights, this court should be “mindful of the irreversible nature and serious emotional impact” involved in such a decision.) (quoting In re Adoption of Orwick, 464 Pa. 549, 555, 347 A.2d 677, 680 (1975); Matter of M.L.W., 307 Pa.Super. 29, 33, 452 A.2d 1021, 1024 (1982) (“Because of the importance placed on the family, the Commonwealth may disrupt the parent-child relationship only upon a clear showing of necessity; moreover, even if removal is necessary to protect the child, every effort should be made to reunite the family.”) (citation omitted); Santosky v. Kramer, 455 U.S. 745, 753-754, 102 S.Ct. 1388, 1394-1395, 71 L.Ed.2d 599, 606 (1982) (“When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.”) (Footnote omitted).

Several factors warrant a remand of this case. Initially, it is important to note that the hearing at issue was scheduled for February 27, 1986, and appellants requested a continuance until the end of March. Given the fact that this matter has been in litigation for a considerable period of time, a one month continuance would not appear to be unreasonable or excessive. Pennsylvania Rule of Civil Procedure 216(A)(4) provides that the following is a basis for allowing a continuance: “Such special ground as may be allowed in the discretion of the court.” In view of the fact that the appellants are faced with the permanent loss of their two children, I would find that the requisite criteria have been satisfied and the trial court’s denial was an abuse of discretion. It matters not that appellant father’s failure to appear at the rehearing in February was occasioned by the fact that he was then in the process of fighting extradition to Pennsylvania. He was fully entitled to take such action and should not be penalized for exercising his rights.

Moreover, the hearing below was conducted by the court sitting without a jury. Accordingly, rescheduling would not have caused a significant amount of inconvenience.

Finally, as the attorney for the children asserted in her brief, “[The children] have progressed very well in foster care and have become bonded to the foster parents, with whom they have lived since the initial placements.” Accordingly, it is evident that a one month delay would not have had a negative impact upon the children who were then enjoying adequate care.

For all of the above reasons, I find that the lower court abused its discretion in refusing to grant the appellants’ request for a continuance. Accordingly, I would remand for a rehearing.

      . According to a letter appended to the brief of the childrens’ attorney, Dorothy Levadites, Esq., appellants’ attorney received telephone calls from the parents "requesting that the hearing in the above matter now scheduled for Thursday, February 27, 1986 at 1:30 P.M. be continued until the end of March.” Addendum III page 1. (Letter from John J. Moran, II, Esq. to the Honorable Robert I. Shadle, dated February 20, 1986.)