source: Caselaw Access Project

author: BROSKY, Judge:

license: Public Domain

text:
    536 A.2d 401
    COMMONWEALTH of Pennsylvania v. Vernon Stuart GABRIELSON, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 23, 1987.
    Filed Jan. 13, 1988.
    Petition for Allowance of Appeal Denied June 9, 1988.

      C. Joseph Rehkamp, New Bloomfield, for appellant.
    Gloria J. McPherson, Assistant District Attorney, New Bloomfield, for Com., appellee.
    Before CAVANAUGH, BROSKY and WATKINS, JJ.
   BROSKY, Judge:

This is an appeal from the judgment of sentence after a jury trial in which appellant was convicted of rape and involuntary deviate sexual intercourse.

Appellant alleges: (1) that the trial judge failed to give a cautionary instruction on the limited purpose of testimony from the victim that appellant, in order to threaten the victim, told her about a prior rape episode; (2) that trial counsel was ineffective in failing to object to the admission of this testimony without the cautionary instruction and in neglecting to object to references of the prior rape conviction in the prosecutor’s closing; (3) that trial counsel was ineffective for failing to place into evidence that appellant had called the State Police, who were looking for him, which evidence would have strengthened appellant’s defense of consent; (4) that trial counsel was ineffective in failing to call appellant and vigorously cross-examine the victim who presented the only'testimony concerning the rape; and (5) that the evidence was insufficient to convict appellant of rape. Because none of these contentions has merit, we affirm.

In contending, initially, that the trial judge was required to give a cautionary instruction regarding the limited purpose of the complainant’s testimony that appellant told her about a previous rape conviction, appellant urges us that this matter is controlled by Commonwealth v. Claypool, 508 Pa. 198, 495 A.2d 176 (1985). In Claypool, the Supreme Court held that testimony given as to defendant’s statement to the victim of his prior criminal activity in order to threaten and intimidate the victim is admissible when force or threat of harm is also an element of the crime for which a defendant is presently standing trial. There, Clay-pool was charged with rape, involuntary deviate sexual intercourse and simple assault. As was the case here, the victim in Claypool testified concerning an admission that defendant had made to her at the time of the perpetration of the offenses. That admission was, as here, that Claypool had been previously incarcerated for rape. Also, as here, the purpose of this testimony was to demonstrate Clay-pool’s intimidation of and threats to the victim to force the sexual acts upon her and, consequently, to negate the defense of consent.

In carving out this new exception to the general rule of inadmissibility of prior crimes, the Supreme Court went on to state:

Although we have determined that evidence of prior criminal acts which the defendant himself makes relevant to prove the crimes with which he is charged is admissible, we are still mindful of the potential for misunderstanding on the part of the jury when this type of evidence is admitted. Therefore, such evidence must be accompanied by a cautionary instruction which fully and carefully explains to the jury the limited purpose for which that evidence has been admitted.

508 Pa. at 205-06, 495 A.2d at 179.

It is this language which appellant insists creates, at least by implication, a per se rule mandating a cautionary instruction by the trial court regardless of whether or not it is requested.

In Commonwealth v. McCann, 503 Pa. 190, 469 A.2d 126 (1983), our Supreme Court was asked to consider whether the trial court was required to charge on the possible implications of a jury verdict of not guilty by reason of insanity without a specific request therefor or objection to the trial court’s failure to do so. The McCann court relied on its earlier decision in Commonwealth v. Mulgrew, 475 Pa. 271, 380 A.2d 349 (1977), that a defendant who raises the defense of insanity is entitled to a jury instruction on the consequences of a verdict of acquittal due to insanity. Yet, the McCann court refused to construe the broad language in Mulgrew that “ ‘a jury must be instructed concerning the possible psychiatric treatment and commitment of the defendant after return of . a verdict of not guilty by reason of insanity’ ” as a per se rule requiring such an instruction, whether or not requested, in all cases raising the insanity defense. 503 Pa. at 195, 469 A.2d at 128, quoting Commonwealth v. Mulgrew, supra, 457 Pa. at 278, 380 A.2d at 352.

We read Claypool’s directive that a cautionary instruction must accompany the admission of evidence of prior crimes in situations similar to the one at bar no different from the broad language in Mulgrew which the McCann court held did not create any per se rule, especially when this argument in both McCann and Mulgrew, as well as here, was coupled with the alternate theory of trial counsel’s ineffectiveness in failing to request such instruction or in neglecting to object to the trial court’s dereliction in that regard. Moreover, were we to make a contrary determination we would be usurping our Supreme Court’s seminal and still viable decision in Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974), that failure to timely object during the course of presentation of evidence cannot be saved for appellate review by alleging basic and fundamental error if not properly preserved. See Commonwealth v. Rounds, 510 Pa. 524, 510 A.2d 348 (1986). Instead, our decision on this initial matter, we believe, is controlled by McCann and Mulgrew, and we will proceed to analyze this issue, as did the Supreme court in those cases, on the basis of appellant’s ineffectiveness claim.

Having so concluded, the next logical step is to consider whether trial counsel was ineffective in neglecting to object to the failure of the trial court to give a cautionary instruction and in failing to request same from the trial court. We are also asked to determine whether trial counsel was similarly derelict in failing to object to various references of the prior rape conviction made by the prosecutor in closing. In doing so, we are guided by the principles recently set forth by our Supreme Court in Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). Pierce once again reiterated the now firmly entrenched rule for determining ineffectiveness originally announced in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), as follows:

Our standard governing ineffectiveness claims was set forth in Commonwealth ex rel. Washington v. Maroney, [supra], which requires that we independently review the record and examine counsel’s stewardship in light of the available alternatives. As we stressed in Maroney:
Our inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of ineffective assistance as soon as it is determined that trial counsel’s decision had any reasonable basis.

515 Pa. at 158, 527 A.2d at 975, quoting Maroney, supra, 427 Pa. at 604, 235 A.2d at 352-53 (emphasis in text). The Pierce court cautioned, however, that before reaching the above conclusion, resort to a two-step analysis is necessary in that, initially, counsel’s performance must be evaluated in terms of reasonableness if the underlying claim has arguable merit. Secondly, a defendant must demonstrate how counsel’s ineffectiveness prejudiced him. See also, Commonwealth v. Butler, 516 Pa. 522, 533 A.2d 992 (1987). In assessing the viability of this second prong within the analytical framework of an ineffectiveness claim, the Pierce court recognized that it had been employing the identical rule of law announced by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in resolving claims of ineffective stewardship. See Commonwealth v. Bennett, 512 Pa. 525, 517 A.2d 1248 (1986); Commonwealth v. Christy, 511 Pa. 490, 515 A.2d 832 (1986); Commonwealth v. Buehl, 510 Pa. 363, 508 A.2d 1167 (1986); Commonwealth v. Clemmons, 505 Pa. 356, 479 A.2d 955 (1984).

Strickland requires:

[A] [c]onvicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction ... has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced that defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.

466 U.S. at 687, 104 S.Ct. at 2064, quoted in Pierce, 515 Pa. at 157-158, 527 A.2d at 975. The Supreme Court in Pierce then concluded that even if counsel’s action or inaction has been deemed arguably meritorious, nevertheless, the inquiry does not terminate until a defendant has demonstrated the likelihood that such commission or omission has prejudiced his right to a fair trial. Id.

Underpinning this entire analysis, of course, are several tenets, the most basic of which is that the law presumes counsel’s effectiveness. Commonwealth v. Butler, supra; Commonwealth v. Pierce, supra; Commonwealth v. Christy, supra. Accordingly, counsel will not be deemed ineffective for failing to raise a baseless claim, nor will his/her decision not to embark upon a particular course of conduct constitute ineffectiveness if counsel reasonably determines that no benefit will accrue or if that decision was made not as a result of sloth or ignorance of available alternatives. Id. Finally, counsel cannot be determined to be ineffective unless a court concludes that viable alternatives existing but not chosen offered a potential for success substantially greater than the tactics counsel actually utilized. Commonwealth v. Pierce, supra; Commonwealth v. Christy, supra; Commonwealth ex rel. Washington v. Maroney, supra.

With the foregoing principles guiding us, we conclude that the inaction of trial counsel here in not requesting a cautionary instruction and in failing to object to the admission of the subject testimony presents an arguably colorable claim of ineffectiveness, especially since the viable alternative of requesting such instruction and of lodging an objection to the trial court’s allowance of this testimony was available to trial counsel. Nor are we convinced, upon a hindsight evaluation of trial counsel’s inaction in this regard, that the non-pursuit of this particular course — i.e., the failure to request an instruction or object to admission of the subject testimony — had some reasonable basis designed to effectuate appellant’s interests. No doubt, had the cautionary instruction been issued, either sua sponte or by request of trial counsel, or had an appropriate objection been lodged, this claim of error would not now be before us.

Our inquiry, however, cannot end here, for we must now determine whether trial counsel’s shortsightedness prejudiced appellant’s defense to the extent that “counsel’s errors were so serious as to deprive [appellant] of a fair trial, a trial whose result is reliable.” Commonwealth v. Pierce, supra, 515 Pa. at 158, 527 A.2d at 975, quoting Washington v. Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064. In other words, we must consider whether, but for trial counsel’s allegedly derelict stewardship, trial counsel’s defective performance prejudiced the outcome of the trial. Id.; Commonwealth v. Christy, supra; Commonwealth v. Clemmons, supra. On review of the entire record, we conclude that appellant has failed to satisfy the second prong of the Pierce/Strickland analysis. This conclusion is based upon a determination that the evidence, as a whole, was sufficiently compelling to convict appellant of rape and involuntary deviate sexual intercourse.

The oft-stated test for determining the sufficiency of the evidence is whether, upon viewing the evidence in the light most favorable to the verdict winner, here the Commonwealth, and drawing all properly inferable deductions from the evidence, a jury could have reasonably determined that the Commonwealth has proven each element of each offense beyond a reasonable doubt. Commonwealth v. Stambaugh, 355 Pa.Super. 73, 512 A.2d 1216 (1986). Gleaned from the entire record, all evidence, whether rightly or wrongly admitted, must be considered. Commonwealth v. Westcott, 362 Pa.Super. 176, 523 A.2d 1140 (1986).

Appellant’s sufficiency claim asserts that the Commonwealth failed to prove the element of forcible compulsion to negate the defense of consent because no evidence was brought to light of physical abuse or the use or threatened use of a weapon. Complaint is also made of the lack of medical evidence to infer force of intercourse or even any intercourse at all.

The relevant statutory provisions read as follows:

[18 Pa.C.S.A.]
§ 3121. Rape
A person commits a felony of the first degree when he engages in sexual intercourse with another person not his spouse:
(1) by forcible compulsion;
(2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution ____
[18 Pa.C.S.A.]
§ 3123. Involuntary Deviate Sexual Intercourse.
A person commits a felony of the first degree when he engages in deviate sexual intercourse with another person:
(1) by forcible compulsion;
(2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution____

Our Supreme Court in Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986), embraced within the statutory meaning of forcible compulsion “not only physical force or violence, but also moral, psychological or intellectual force used to compel a person to engage in sexual intercourse against that person’s will.” 510 Pa. at 555, 510 A.2d at 1226. The Rhodes court similarly considered the phrase “forcible compulsion” as used in Section 3121 (2) and concluded that the legislature intended that an objective standard be applied. Analyzing a sufficiency claim, either under Section 3121 (1) or (2), requires, on a case-by-case basis, consideration of the totality of the circumstances. Significant factors listed by the Rhodes court, while not all encompassing, include the atmosphere and physical locale of the offense, the extent of the authority of and dominion over the victim by the assailant and whether the victim engaged in intercourse under duress. Id.

The Supreme Court then elaborated on the proof required to sustain a conviction under either Section 3121 (1) or (2) as follows:

When forcible compulsion (used or threatened) consists of physical force or violence, relatively tangible circumstances, testimony and other evidence will tend to prove the existence of such. When forcible compulsion (used or threatened) consists of ‘moral, phychological [sic] or intellectual force,’ the force may be less tangible but is not less susceptible of proof, and the critical circumstances and evidence here will be those which tend to prove or disprove compulsion or lack of consent, i.e. that such force was ‘used to compel a person to engage in sexual intercourse against that person’s will.’ ... The task of the fact finder in each case will be essentially the same, the determination of whether the victim ... was forced to do a thing (... to engage in sexual intercourse ...) against his or her will.

510 Pa. at 556, 510 A.2d at 1226-27, footnote omitted.

Within the context of the above framework, we will analyze the uncorroborated (as to the actual attack) and unrefuted testimony of the victim, Miss Dunlap, employing the Rhodes factors particularly applicable to the instant situation.

Miss Dunlap, in her testimony, stated that she asked appellant to drive away from the isolated, wooded area after he had picked her up in his jeep (N.T. 26, 28). Her testimony is replete with indications that she was afraid of appellant because he stated that he would beat her up badly if she attempted to leave the jeep (N.T. 32, 38) and if she did not have intercourse with him (N.T. 29, 30, 34, 40, 41).

She indicated that she removed her shirt at appellant’s request because he told her that she had no choice otherwise (N.T. 29-32). Miss Dunlap had intercourse with appellant three times. The first time, appellant forced her to perform oral sex upon him (N.T. 33-34). The second time, appellant forced her to remove her remaining clothing. The victim testified that she cried the entire time (N.T. 34-36). Finally, appellant indicated that he would only believe that Miss Dunlap would not report this incident to the police if she would have intercourse with him for the third time (N.T. 40-41). She initially refused and then agreed. Her testimony in this regard was as follows: “I just laid there and cried, hoping it would be done fast____ I was just just laying there crying____” (N.T. 42).

Q. How did you feel at that point, Cherina?
A. Numb. I felt sick.
Q. Why?
A. Because it was disgusting. And I just wanted to go home.

Id.

Miss Dunlap’s testimony also reveals that the area where appellant had parked the jeep and where the rape occurred was mountainous, wooded and isolated (N.T. 26). Her description was corroborated by Trooper Engle of the State Police to whom Miss Dunlap had reported the incident (N.T. 68). She also stated that no one else was in the area (N.T. 26, 30, 34, 37). When a truck did go by, appellant warned her not to yell because he did not want to hurt her (N.T. 39).

We are convinced that the evidence sufficiently demonstrates that the atmosphere and physical setting were such that Miss Dunlap was unable to obtain assistance or to escape. Appellant’s threats to harm her, his actual prevention of her escape from the jeep and his forcing her to have intercourse with him in a desolate area manifests his domination and control of her. Moreover, Miss Dunlap’s testimony that she was afraid that appellant would hurt her if she did not have intercourse is indicative that she acted under duress. Commonwealth v. Rhodes, supra.

In a case where, as here, a victim is threatened with physical abuse if she refuses to engage in intercourse with the assailant even to the point where the victim considers it pointless to resist, we have held that such conduct demonstrates the use of force and threat of force sufficiently compelling to meet the statutory threshold of forcible compulsion. Commonwealth v. Stambaugh, supra; Commonwealth v. Williams, 294 Pa.Super. 93, 439 A.2d 765 (1982). It is not necessary that the victim be physically abused, be threatened with a weapon or cry. Actual force is not necessary. Id.

Because we deem the evidence otherwise sufficient to convict appellant of the crimes charged, we hold that he was not prejudiced by his trial counsel’s dereliction in not requesting the cautionary instruction or in failing to object to the admission of the victim’s testimony as to his prior rape conviction. We are of a similar opinion that the prosecutor’s references in closing to appellant’s former rape conviction did not prejudice appellant’s right to a fair trial for his counsel’s neglect to object, especially in light of the evidence presented as a whole. Furthermore, the trial judge in its opening instruction to the jury (N.T. 6) cautioned the jurors not to consider the comments of counsel as part of the evidence. Commonwealth v. Nelson, 311 Pa. Super. 1, 456 A.2d 1383 (1983).

Appellant’s next two claims of ineffectiveness are that counsel was remiss in failing to place into evidence and argue during closing that appellant turned himself in to the State Police after ascertaining that the police were looking for him and in failing to call appellant and vigorously cross-examine the victim because no evidence existed of any physical injury. We are not required to utilize the prejudice standard in assessing these two claims, for we conclude that they lack arguable merit. Since a presumption in the law exists that counsel’s stewardship is effective, it logically follows that counsel cannot be ineffective for failing to pursue a futile tactic. Commonwealth v. Christy, supra.

Appellant contends in the first of these two allegations that trial counsel was ineffective in that he did not elicit from a trooper of the State Police nor argue in closing that appellant had turned himself in to the State Police rather than escape after hearing that the latter was looking for him. We recognize the failure to bring this to the jury’s attention as a legitimate defense ploy designed to downplay appellant’s guilt. Otherwise, it had no reasonable basis to promote appellant’s interests, nor would appellant’s chances for gaining an acquittal be substantially greater if this matter had been called to the jury’s attention. Commonwealth v. Clemmons, supra.

Appellant’s next claim of ineffectiveness centers on trial counsel’s dereliction in not calling appellant to the stand to testify on the issue of consent in light of the fact that no medical evidence existed to demonstrate that a forcible rape had occurred, that appellant used no weapon, nor did he threaten the victim with a weapon, that Miss Dunlap smoked cigarettes before and after intercourse with appellant and that she went to her boyfriend after she was dropped off by appellant. Using the same analysis, as we conclude, once again, that appellant’s trial counsel employed a trial tactic which he believed offered appellant a greater chance of acquittal under the circumstances. His placing appellant on the stand would have contributed nothing, in our view, to further appellant’s interests.

We have already analyzed the sufficiency of the evidence with regard to appellant’s complaints of ineffectiveness here and, once again, employing the teaching of the Supreme Court in Commonwealth v. Rhodes, supra, hold that the victim need not be attacked with a weapon or be subjected to threats with a weapon or evidence any physical abuse to satisfy the statutory elements of forcible compulsion or threat of forcible compulsion. Commonwealth v. Stambaugh, supra; Commonwealth v. Williams, supra. Moreover, we do not perceive how any defense testimony on the fact that Miss Dunlap smoked cigarettes could have aided appellant’s cause, especially when the victim admitted that she smoked cigarettes when she was with appellant, and the jury, no doubt, weighed this factor accordingly. We also find appellant’s statement that “the victim was finally dropped off by the Defendant [and] went directly to her boyfriend who was waiting for her” belied by the record (Appellant’s Brief, p. 14).

Miss Dunlap’s unrefuted testimony indicates that she managed to escape from appellant after they left the area where the rape occurred, using the excuse that she needed to use the restroom. Appellant exited the jeep to attempt to repair it. At that point, Miss Dunlap left the jeep and ran across the road to the Garden Seat Tea Room where her boyfriend and some other friends were (N.T. 47).

In light of the foregoing, trial counsel, by placing appellant on the stand or conducting a more forceful cross-examination of Miss Dunlap, would have only succeeded in unduly inflaming the rape incident, especially the victim’s predicament, and, thus, appellant’s guilt potential.

Appellant lastly complains that the evidence was insufficient because it only consisted of the uncorroborated testimony of the victim. Appellant here once again reiterates the same arguments made in his ineffectiveness claim, namely, that uncorroborated testimony without evidence of violence or physical abuse and without any evidence of a medical examination does not warrant his conviction. Again, we disagree. The uncorroborated testimony of a rape victim, if believed by a jury, is sufficient to support a rape conviction. Commonwealth v. Westcott, supra. Moreover, no medical testimony is needed to corroborate the victim’s testimony if that latter testimony was rendered credible by the jury. Id.; Commonwealth v. Flynn, 314 Pa.Super. 162, 460 A.2d 816 (1983).

Judgment of sentence affirmed.

      . Appellant's ineffectiveness claims are properly preserved for review. It is well-established in this Commonwealth that the ineffectiveness of prior counsel must be raised at the earliest stage of the proceedings at which counsel whose ineffectiveness is challenged no longer represents the defendant. Commonwealth v. Hennessey, 485 Pa. 647, 403 A.2d 575 (1979); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1978); Commonwealth v. Johnson, 347 Pa.Super. 93, 500 A.2d 173 (1985); Commonwealth v. Smith, 321 Pa.Super. 170, 467 A.2d 1307 (1983). Here, appellate counsel also served as counsel who filed supplemental post-verdict motions nunc pro tunc, as permitted by the trial court, preserving all the aforementioned issues therein. In accordance with the foregoing principle, the earliest stage applicable to the instant proceedings was the post-verdict period, where present counsel assumed his stewardship.


author: POPOVICH, Judge:

text:
    536 A.2d 409
    MODERN LAUNDRY & DRY CLEANING CO., Appellant, v. William FARRER, Individually, d/b/a Farrer Laundry & Dry Cleaning.
    Superior Court of Pennsylvania.
    Submitted Oct. 13, 1987.
    Filed Jan. 19, 1988.

      Barbara L. Farley, Philadelphia, for appellant.
    Barry M. Miller, Norristown, for appellee.
    Before TAMILIA, POPOVICH and CERCONE, JJ.
   POPOVICH, Judge:

This is an appeal from the Order entered April 16, 1987, in the Court of Common Pleas of Montgomery County, which dissolved appellant’s temporary restraining order and dismissed his petition for a preliminary injunction. Appellant alleges the lower court erred in declaring that the restrictive employment covenant was invalid, and, consequently, it erred in denying the Motion for Preliminary Injunction. For the following reasons, we reverse and remand the case for determination of the remaining issue, i.e., whether the restrictive covenant is reasonably limited in time and territory.

On November 6, 1972, Modern Laundry and Dry Cleaning Company (Modern) hired William Farrer to work as a route salesman. For approximately one month, Farrer trained as a probationary employee under the supervision of an experienced route salesman on company Route Thirty-Six. During this probation period, Farrer worked without an employment contract. Under Modern’s training program, Farrer was taught how to handle a particular route but was not given any responsibility for the route until Modern was satisfied with his performance. Once Modern became confident in Farrer’s ability, he was offered full-time employment. In order to assume full-time status, Farrer was required to sign an employment contract. Included in the employment contract was the following restrictive covenant:

As an inducement to the execution of this agreement, and to any renewal or continuation thereof, it is agreed that in the event Employee shall leave the said employment, or be discharged by Employer, during, or at the expiration of this agreement, or any renewal or extension thereof, the said Employee agrees that he shall not, or will not, directly or indirectly, for the space of one year after ceasing in any manner to be in the employ of the Employer, engage in the laundry business in any form or manner on his own account, or as agent, employee, or in any other capacity, for any other person, firm, company, or corporation, in the route or routes, territory or territories assigned to, covered, or served by him, or within three full squares of any point in or on said territory; and that he will not, directly or indirectly, for himself on his own account, or as driver, canvasser, or in any other capacity, for any other person, persons, firm, company or corporation, within the route or routes, territory or territories assigned to, covered, or served by him, or within three squares of any point in or on said route or routes, territory or territories, solicit for or do any laundry work, or furnish any laundry service whatsoever, to any customer or customers served by said Employer, whether said customer or customers originally belonged to the Employer or were secured by the Employee, or through his efforts, while in the employ of the Employer.

Once the contract was signed, Farrer assumed complete responsibility for Route Thirty-Six. Farrer continued to service Route Thirty-Six for Modern until January 30, 1987, at which time he notified the company that he was terminating his employment effective immediately.

After Farrer’s departure, Modern estimated that from January, 1987, to April, 1987, the company lost approximately 41% of its customers on Route Thirty-Six. In late March, 1987, Modern learned that Farrer had started his own laundry and dry cleaning business and that he was servicing his old route in violation of the restrictive covenant in his employment contract. Modern sought to prevent Farrer from operating his business within his old territory and to gain access to his business records so that the damages to Modern’s business could be determined.

On April 7, 1987, Modern filed a Complaint in Equity and a Motion for Temporary Restraining Order and Preliminary Injunction. A temporary restraining order enjoining Farrer from soliciting or servicing any person within “three full squares” of his previous territory was issued. After hearings on April 13, 1987, and April 15, 1987, the lower court ordered the Temporary Restraining Order dissolved and denied the Motion for Preliminary Injunction. This appeal followed.

It is the law of the Commonwealth that for a covenant in restraint of trade to be enforceable, it must meet the following requirements: 1) the covenant must relate to (be ancillary to) a contract for the sale of the good will of a business or to a contract of employment; 2) the covenant must be supported by adequate consideration; 3) the covenant must be limited in both time and territory. George W. Kistler, Inc. v. O’Brien, 464 Pa. 475, 347 A.2d 311, 314 (1975); Jacobson & Co. v. International Environment Corp., 427 Pa. 439, 235 A.2d 612 (1967); Morgan’s Home Equipment Corp. v. Martucci, 390 Pa. 618, 136 A.2d 838 (1957). Our courts have consistently held that the taking of employment is sufficient consideration for a restrictive covenant. Records Ctr. v. Comprehensive Management, Inc., 363 Pa.Super. 79, 84-85, 525 A.2d 433, 435 (1987); Capital Bakers v. Townsend, 426 Pa. 188, 190, 231 A.2d 292, 293 (1967); Barb-Lee Mobile Frame Co. v. Hoot, 416 Pa. 222, 206 A.2d 59 (1965).

In the instant case, the lower court ruled that the employment contract between the parties was not ancillary to his taking of employment, and, therefore, it was invalid and unenforceable. However, the appellant cites cases and the record reveals facts which support appellant’s contention that the contract was ancillary to the taking of employment. To be valid the restrictive covenant need not appear in the initial employment contract. Maintenance Specialities, Inc. v. Gottus, 455 Pa. 327, 314 A.2d 279, 282 (1974); Jacobson, 235 A.2d at 618 (1967); Kistler, 347 A.2d at 316. Therefore, the fact that Modern and Farrer did not enter into the contract containing the restrictive covenant at the beginning of Farrer’s employment does not automatically invalidate the covenant. As long as the restrictive covenant is an auxiliary part of the taking of employment and not a later attempt to impose additional restrictions on an unsuspecting employee, a contract of employment containing such a covenant is supported by valid consideration and is therefore enforceable. Beneficial Finance Co. v. Becker, 422 Pa. 531, 222 A.2d 873 (1966).

In a case similar to the one sub judice, Morgan’s Home Equipment Corp. v. Martucci, 390 Pa. 618, 136 A.2d 838 (1957), the purchaser of a business retained certain employees on a provisional basis and, one month later, offered them regular employment upon the condition that they sign a covenant not to compete. Our Supreme Court held that because the parties entered into a “regular employment relationship in contradistinction to provisional employment” at the same time the employment contract was signed, the restrictive covenant was ancillary to the employment contract. Morgan’s Home, 136 A.2d 838, at 845. In the instant case, Farrer began his employment with Modern as a trainee on a strictly provisional basis. After his one month training period, Modern believed Farrer was capable of handling Route Thirty-Six, and, on December 7, 1972, Modern offered Farrer full-time employment, provided he signed an employment contract containing a covenant not to compete. Following the analysis in Morgan’s Home, the requirement of adequate consideration for the contract is met by Modern’s offer of full-time employment coupled with Farrer’s signing of the contract containing the covenant not to compete. Consequently, the restrictive covenant would be ancillary to the employment contract and supported by adequate consideration. Thus, the covenant would be valid.

Even if this court had determined that the covenant was not ancillary to the taking of employment, the covenant would still be valid. If an employment contract containing a restrictive covenant is entered into subsequent to employment, it must be supported by new consideration which could be in the form of a corresponding benefit to the employee or a beneficial change in his employment status. George W. Kistler, Inc. v. O’Brien, 347 A.2d at 316; Maintenance Specialties, Inc. v. Gottus, 455 Pa. 327 331, 314 A.2d 279, 281 (1974).

After signing the employment contract, Farrer experienced a significant change in his employment status. He was no longer a provisional employee under the charge of an experienced salesman. Farrer had become his own supervisor solely responsible for the operation of Route Thirty-Six. The case of M.S. Jacobs & Associates, Inc. v. Duffley, 452 Pa. 143, 303 A.2d 921 (1973), presents facts resembling the case before us. In M.S. Jacobs, prior to signing an employment contract, the employee was paid only a salary while working in support of an experienced salesman. But, after signing the employment contract containing the restrictive covenant, the employee was given his own territory and received a commission on his total sales. Our Supreme Court held that the employee had received a substantial beneficial change in his employment constituting sufficient consideration to support an anti-competition clause in his employment contract. M.S. Jacobs, 452 Pa. at 147, 148, 303 A.2d at 922, 923. Likewise, Farrer’s employment status changed beneficially when the parties reduced their agreement to writing. Hence, the instant restrictive covenant is valid.

In addition to the beneficial change in employment status, Farrer was given the opportunity to increase his earnings substantially. Pursuant to his employment contract, Farrer received 17% of all the cash he collected and paid over to his employer. In addition, Farrer’s earnings would increase in direct proportion to the new business he procured on his route. A similar situation arose in Wainwright’s Travel Service, Inc. v. Schmolk, 347 Pa.Super. 199, 500 A.2d 476 (1985). In that case, this court ruled that the potential to realize monetary gains due to a change in employment status was adequate consideration to support a restrictive covenant entered into after initial employment. Wainwright’s Travel Service, 347 Pa.Superior Ct. at 204, 500 A.2d at 478. Accordingly, Farrer’s opportunity to increase his earnings due to his change in employment status is sufficient consideration to support the restrictive covenant in his employment contract.

In conclusion, we hold that the restrictive covenant was ancillary to Farrer’s taking of employment and supported by adequate consideration. Therefore, the restrictive covenant is valid and, if the covenant is found to be reasonably limited in time and territory, enforceable. We reverse the lower court decision and remand this case for determination of whether the covenant is reasonably limited in time and territory.

Reversed and remanded. Jurisdiction relinquished.


author: MONTGOMERY, Judge:

text:
    536 A.2d 412
    Cecelia DRISCOLL and William Dailey, Appellants, v. CARPENTERS DISTRICT COUNSEL OF WESTERN PENNSYLVANIA and United Brotherhood of Carpenters, Appellees.
    Superior Court of Pennsylvania.
    Argued June 16, 1987.
    Filed Jan. 11, 1988.

      Daniel W. Ernsberger, Pittsburgh, for appellants.
    Ronald L. Gilardi, Pittsburgh, for Carpenters Dist., appellees.
    Before ROWLEY, JOHNSON and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

This action was instituted by Plaintiff-Appellants Cecelia Driscoll and William Dailey, claiming that they were the subjects of discrimination in job referrals by the Defendant-Appellee labor organizations. Their Complaint asserted that they were denied job referrals through a “Hiring Haul (sic)” job referral system maintained by the Appellee, as a result of intentional sex discrimination against Ms. Driscoll, and retaliation against her father, Mr. Dailey, because he complained of the alleged sexually discriminatory treatment experienced by his daughter. They based their claims upon rights provided in the Pennsylvania Human Relations Act, Act of October 27, 1955, P.L. 744, § 1, et seq., 43 P.S. § 951, et seq. After discovery procedures, the Appellees filed a Motion for Summary Judgment, contending that the claims arising in this action were preempted by applicable federal labor law, and also contending that the action was untimely filed by virtue of the limitations period set forth in the Human Relations Act. The trial court found merit in the preemption argument, granted summary judgment in favor of the Appellees, and dismissed the Complaint. This appeal arises from that action by the lower court.

In our review of an order granting summary judgment, our function is normally to determine whether any genuine issue of triable fact exists. Bowman v. Sears, Roebuck & Co., 245 Pa.Super. 530, 369 A.2d 754 (1976). Pa.R.C.P. 1035 provides that summary judgment may be granted when the pleadings, depositions, answers to interrogatories, admissions on file and supporting affidavits considered together, reveal that there is no genuine issue of material fact, and the moving party is entitled to a judgment as a matter of law. Bobb v. Kraybill, 354 Pa.Super. 361, 364, 511 A.2d 1379, 1380 (1986).

At least with regard to the preemption issue, there does not appear to be any real question of the alleged factual basis for the Appellants’ action. In their Complaint, the Appellants recited that they were both members of the Appellee labor organizations, and had completed necessary apprenticeship requirements and job training to qualify as journeymen carpenters. They alleged that by the terms of a “Labor Agreement” and “Hiring Haul (sic) Practices”, the Appellants and similarly situated members of the Appellee labor organizations are to be referred to employment opportunities as they are made known to the Appellees. The Appellants then declared that contrary to the “Labor Agreement” and permissible “Hiring Haul (sic) Practices”, Ms. Driscoll had been discriminated against because of her sex and had been assigned to little or no employment since she became a “Journeymen (sic) Carpenter” on June 1, 1983. In the Complaint, the Appellants further alleged that while Ms. Driscoll was qualified for available work, and had requested the Appellee to assign her to available work, it had refused to assign her to such work and instead assigned male members to such work. It was claimed that the Appellees had retaliated against her, on account of her demands for work, by refusing to assign her father to work. The Appellants also maintained that Mr. Dailey had been the subject of discrimination on account of sex, in retaliation for his daughter’s request for work, and his own demands for work for her. Both of the Appellants contended that they had suffered substantial economic loss as a result of denial of employment opportunities, and had also suffered emotional harm and humiliation as a consequence of the Appellees’ purported discrimination and retaliation.

The lower court determined that the issues presented by the Appellants’ Complaint were subject to dismissal, as the resolution of them was a subject of federal law and the jurisdiction of the National Labor Relations Board (hereinafter often referred to as the “NLRB”). This appeal from that determination appears to present a question of first impression in the courts of our Commonwealth. That question is the narrow one of whether the doctrine of federal preemption precludes the courts of our Commonwealth from exercising jurisdiction over a dispute involving claims of individual plaintiffs, under Pennsylvania law, of sexual discrimination by a labor organization in the conduct of its operation of a hiring hall or job referral system, considering the applicability of the National Labor Relations Act, as amended (29 U.S.C. § 141, et seq.).

The doctrine of federal preemption rests upon the provisions of Article VI, Clause 2, of the United States Constitution, known as the Supremacy Clause, which states:

This Constitution and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The appropriate analytical approach to be taken by a court, when faced with a question of possible preemption, has been the' subject of discussion in numerous cases. The process of review in such circumstances is frequently difficult and the task of analysis quite complex.

One oft-cited authority in this area is the Supreme Court’s decision in Jones v. Rath Packing Company, 430 U.S. 519, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977), rehearing denied 431 U.S. 925, 97 S.Ct. 2201, 53 L.Ed.2d 240 (1977). In its Opinion in that case, the Court explained the following concerning the path of deduction to be followed to determine whether federal laws or other guidance preclude the enforcement of a state statute as to the activities in issue:

The first inquiry is whether Congress, pursuant to its power to regulate commerce, U.S.Const., Art. 1, § 8, has prohibited state regulation of the particular aspects of commerce involved in this case. Where, as here, the field which Congress is said to have pre-empted has been traditionally occupied by the States, see, e.g., U.S.Const., Art. I, § 10; Patapsco Guano Co. v. North Carolina, 171 U.S. 345, 358, 18 S.Ct. 862, 867, 43 L.Ed. 191 (1898), “we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). This assumption provides assurance that “the federal-state balance,” United States v. Bass, 404 U.S. 336, 349, 92 S.Ct. 515, 523, 30 L.Ed.2d 488 (1971), will not be disturbed unintentionally by Congress or unnecessarily by the courts. But when Congress has “unmistakably ... ordained,” Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963), that its enactments alone are to regulate a part of commerce, state laws regulating tha.t aspect of commerce must fall. This result is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose. City of Burbank v. Lockheed Air Terminal Inc., 411 U.S. 624, 633, 93 S.Ct. 1854, 1859, 36 L.Ed.2d 547 (1973); Rice v. Santa Fe Elevator Corp., supra, 331 U.S. at 230, 67 S.Ct. at 1152.
Congressional enactments that do not exclude all state legislation in the same field nevertheless override state laws with which they conflict. U.S.Const., Art. VI. The criterion for determining whether state and federal laws are so inconsistent that the state law must give way is firmly established in our decisions. Our task is “to determine whether under the circumstances of this particular case, [the State’s] law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941). Accord, De Canas v. Bica, 424 U.S. 351, 363, 96 S.Ct. 933, 940, 47 L.Ed.2d 43 (1976); Perez v. Campbell, 402 U.S. 637, 649, 91 S.Ct. 1704, 1711, 29 L.Ed.2d 233 (1971); Florida Lime & Avocado Growers, Inc. v. Paul, supra, 373 U.S. at 141, 83 S.Ct. at 1217; id., at 165, 83 S.Ct. at 1229; (White, J., dissenting). This inquiry requires us to consider the relationship between state and federal laws as they are interpreted and applied, not merely as they are written. See De Canas v. Bica, supra, 424 U.S. at 363-365, 96 S.Ct. at 940-941; Swift & Co. v. Wickham, 230 F.Supp. 398, 408 (S.D.N.Y.1964), appeal dismissed, 382 U.S. 111, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965), aff’d on further consideration, 364 F.2d 241 (C.A.2 1966), cert. denied, 385 U.S. 1036, 87 S.Ct. 776, 17 L.Ed.2d 683 (1967).

430 U.S. at 525-526, 97 S.Ct. at 1309-1310.

Such general guiding principles have been followed and refined in a large number of cases which have addressed issues of arguable conflict or duplication between federal and state legislation and/or regulation in the field of labor relations. More specifically, and relevant in the instant context, numerous cases have examined questions of preemption as to the National Labor Relations Act. They demonstrate that there is no general rule or guideline easily applied to all such situations.

Thus, in Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 75 5. Ct. 480, 99 L.Ed. 546 (1955), the Court explained:

By the Taft-Hartley Act, Congress did not exhaust the full sweep of legislative power over industrial relations given by the Commerce Clause. Congress formulated a code whereby it outlawed some aspects of labor activities and left others free for the operation of economic forces. As to both categories the areas that have been preempted by federal authority and thereby withdrawn from state power are not susceptible of delimitation by fixed metes and bounds.

348 U.S. at 480, 75 S.Ct. at 488. The Court went on to state that the penumbral area of exclusive federal jurisdiction could only be rendered clear by the course of continuing litigation. In Weber, the Supreme Court noted its prior pronouncement in Garner v. Teamsters Union, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228 (1953), and in prior cases cited in that opinion, that the National Labor Relations Act: "... leaves much to the states, though Congress has refrained from telling us how much. We must spell out from conflicting indications of congressional will the area in which state action is still permissible.” 346 U.S. at 488, 74 S.Ct. at 164.

A most significant case in this area, and of particular importance in our review of the instant appeal, was the landmark decision of the Supreme Court in San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), in which Justice Frankfurter authored the Opinion of the Court, and Justice Harlan filed La Concurring Opinion, which was joined by Justices Clark, Whittaker, and Stewart. In his majority Opinion, Justice Frankfurter devoted considerable attention to describing the difficulty of analysis in such cases. He did so by noting and comparing prior decisions of the Supreme Court, including the cases we have discussed above, which concerned federal preemption based upon the coverage of the National Labor Relations Act.

In his explanation of the analytical process to be applied, Justice Frankfurter highlighted two important considerations. Citing International Association of Machinists v. Gonzales, 356 U.S. 617, 78 S.Ct. 923, 2 L.Ed.2d 1018 (1958), he explained that a court should not find a withdrawal of the power of states to act where the activity to be regulated was a merely peripheral concern of the federal labor legislation. Second, he relied upon several prior precedents in stating the rule that where the regulated conduct touched interests so deeply rooted in local feeling and responsibility, in the absence of compelling direction from Congress, there should be no inference that Congress had deprived the states of the power to act.

In Garmon, the Court then went on to declare that if it is not clear whether a particular activity is subject to resolution under the National Labor Relations Act, the determination should be left, in the first instance, to the NLRB. If the NLRB decides that conduct is either protected or prohibited by that legislation, the states would be ousted of all jurisdiction in the area. Further, in the absence of a clear determination by the NLRB that a particular activity is protected or prohibited, a state’s jurisdiction is precluded if the matter is arguably within the jurisdiction of the NLRB, This rule would seem to be an easy one to follow. Our Pennsylvania Supreme Court has acknowledged the rule and applied it. See, for example, Stryjewski v. Local Union No. 830, 426 Pa. 512, 233 A.2d 264 (1967) and Spica v. International Ladies Garment Workers’ Union, 420 Pa. 427, 218 A.2d 579 (1966).

Indeed, the Garmon rule was the lower court’s basis for its decision in this case. It recognized that the National Labor Relations Board has assumed jurisdiction over cases involving allegations that a labor organization had operated its hiring hall or other employment referral system in a sexually discriminatory manner. The lower court cited cases such as Pacific Maritime Association, 209 NLRB 519 (1974). In the Pacific Maritime case, the NLRB specifically found that it was an appropriate forum for the resolution of claims of such types of discrimination on the part of a labor organization.

While the lower court’s preemption inquiry stopped with its application of the Garmon holding, we believe that further evolutions of the preemption doctrine mandated additional analysis. In that regard, we recognize the Supreme Court’s decision in Farmer v. United Brotherhood of Carpenters and Joiners of America, Local 25, 430 U.S. 290, 97 S.Ct. 1056, 51 L.Ed.2d 338 (1977) which involved claims of discrimination in the operation of a hiring hall by a labor organization. In Farmer, the California courts had rejected the plaintiff’s state law tort claims, based upon Garmon preemption. While the Supreme Court in Farmer acknowledged the continued vitality of the Garmon holding, it pointed out that it had recognized exceptions in appropriate classes of cases. These included situations, previously noted in Garmon, in which the activity was determined to be merely a peripheral concern of the Labor Management Relations Act, or touched interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, it could not be inferred that Congress intended that the states should not act. Further, the Court cited cases in which it had declined to apply the preemption doctrine, where the state law being invoked was so structured and administered that, in virtually all instances, it would be safe to assume that judicial supervision would assure no disservice to interests promoted by the federal labor statutes. In Farmer, the Court counseled against an inflexible application of preemption. After reviewing its holdings in many cases, the Court noted that the cases reflected a balanced inquiry into such factors as the nature of the federal and state interests in regulation and the potential for interference with federal regulation. See also Vaca v. Sipes, 386 U.S. 171, 180, 87 S.Ct. 903, 911, 17 L.Ed.2d 842 (1967), concerning suits involving duty of fair representation claims, on that point. The Supreme Court has restated the same approach to preemption cases since issuing its decision in Farmer. See, for example, Belknap, Inc. v. Hale, 463 U.S. 491, 103 S.Ct. 3172, 77 L.Ed.2d 798 (1983) and Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180, 98 S.Ct. 1745, 56 L.Ed.2d 209 (1978).

Turning finally to the instant case, and employing the analytical approach mandated by the aforementioned applicable decisions of the Supreme Court, we are convinced that the lower court’s rigid application of the Garmon holding led it to an incorrect conclusion regarding the preemption issue presented. We believe that the Appellants’ claims of sex discrimination, based upon rights established under the Pennsylvania Human Relations Act, are not preempted merely because the National Labor Relations Board has assumed jurisdiction over similar claims.

In our analysis, we first recognize that the Appellants have alleged a denial of equal employment opportunities based upon purported discrimination on account of sex by the Appellees. In this area, the federal statutes have evinced a general intent to accord parallel or overlapping remedies against discrimination. See, for example, the Civil Rights Act of 1866 (42 U.S.C. § 1981) and the Civil Rights Act of 1871 (42 U.S.C. § 1983). Congress indicated in the Civil Rights Act of 1964 (42 U.S.C. § 2000a, et seq.) that it considered the policy against discrimination to be of the “highest priority”. Newman v. Piggie Park Enterprises, 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968). As the Supreme Court noted in Alexander v. Gardner-Denver Co., 415 U.S. 36, 48-49, 94 S.Ct. 1011, 1019-20, 39 L.Ed.2d 147 (1974):

Title VII [of the Civil Rights Act of 1964] provides for consideration of employment-discrimination claims in several forums. See 42 U.S.C. § 2000e-5(b) (EEOC); 42 U.S.C. § 2000e-5(c) (State and local agencies); 42 U.S.C. § 2000e-5(f) (federal courts). And, in general, submission of a claim to one forum does not preclude a later submission to another. See 42 U.S.C. §§ 2000e-5(b) and (f); McDonnell Douglas Corp. v. Green, supra [411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) ]. Moreover, the legislative history of Title VII manifests a congressional intent to allow an individual to pursue independently his rights under both Title VII and other applicable state and federal statutes. The clear inference is that Title VII was designed to supplement, rather than supplant, existing laws and institutions relating to employment discrimination. (Footnotes omitted)

Thus, it is evident that the intent of Congress has been to allow an individual to pursue anti-discrimination rights under state law, although there may be coincidental jurisdiction over such problems under the National Labor Relations Act or other federal legislation. Our Pennsylvania Supreme Court has recognized that the Human Relations Act is the analogue of Title VII of the Civil Rights Act of 1964. General Electric Corporation v. Commonwealth of Pennsylvania, Pennsylvania Human Relations Commission, 469 Pa. 292, 365 A.2d 649 (1976). As the United States Supreme Court has recognized, state human rights laws obviously play a significant role in the enforcement of Title VII, and preemption of a state fair employment law impairs Title VII to the extent that the state law provides a means of enforcing the commands of Title VII. Shaw v. Delta Air Lines, 463 U.S. 85, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983). Accordingly, we conclude that the intent of Congress would not be frustrated by a finding against preemption in the circumstances of this case.

We next examine the issue of whether the behavior to be regulated is conduct which touches interests deeply rooted in local feeling and responsibility or is only of peripheral concern to the federal law. Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180, 200, 98 S.Ct. 1745, 1758, 56 L.Ed.2d 209 (1978); Farmer v. Carpenters, supra. The Pennsylvania legislature guides us in this inquiry by its clear statement of purposes in the Human Relations Act:

It is hereby declared to be the public policy of this Commonwealth to foster the employment of all individuals in accordance with their fullest capacities regardless of their ... sex ... and to safeguard their right to obtain and hold employment without such discrimination [and] to assure equal opportunities to all individuals____

43 P.S. § 952(b). From this legislative statement, it is clear that matters of sex discrimination in employment are of significant concern in our Commonwealth, and we share a “local” feeling of responsibility that such discrimination be prohibited and eliminated. With regard to the issue of “peripheral concern”, we note that the National Labor Relations Act would prohibit sex discrimination of the type alleged herein under §§ 8(b)(1)(A) and 8(b)(2), which define particular unfair labor practices by a labor organization. Pacific Maritime Association, supra. In such regards, the National Labor Relations Act prohibits labor organizations from taking actions against any employee which are based upon considerations or classifications which are irrelevant, invidious or unfair. See Miranda Fuel Company, Inc., 140 NLRB 181 (1962), enforcement denied, 362 F.2d 172 (2nd Cir.1963). Discrimination by a labor organization because of sex considerations is only one of the rationales which the National Labor Relations Board has determined to be irrelevant, invidious, or unfair. See, for example, Cargo Handlers, Inc., 159 NLRB 321 (1966), where unlawful discrimination in a union’s hiring and referral system was based upon non-membership in the union and the race of the applicants. The particular matter of sex-based discrimination, as opposed to other irrelevant, invidious, or unfair considerations, appears to be only of peripheral concern under the National Labor Relations Act, while it is a subject of high priority under the Pennsylvania Human Relations Act. These conclusions mitigate strongly against a finding that preemption should be found to be applicable in the instant case.

Based upon all of the foregoing, we are convinced that the lower court erred in holding that the Appellees were entitled to summary judgment because the Appellants’ claims were preempted, and subject to the exclusive jurisdiction of the National Labor Relations Board. As a result of its erroneous determination on that issue, the lower court did not attempt to resolve the Appellees’ second contention, that the Appellants’ suit was untimely filed. While that issue is argued by the parties to this appeal, it is not appropriate that we address it in the first instance, before it has been examined by the trial court. After the remand, the issue of timeliness shall be addressed and resolved by the lower court in the course of further proceedings in the case.

The Order of the lower court is hereby reversed, and the case remanded for further proceedings. Jurisdiction is not retained.

      . The provisions of the Act prohibiting labor organizations from denying full membership opportunities or otherwise discriminating against individuals with respect to various aspects of employment, based upon sex, are set forth in 43 P.S. § 955(c). A prohibition against retaliation by a labor organization against an individual because he or she has opposed any practice forbidden by the Act is set forth in 43 P.S. § 955(d).

      . The genesis of this action was in a complaint filed with the Human Relations Commission on February 3, 1984. The Commission had jurisdiction of the matter for one year. Subsequent to that period, the Appellants exercised the right to file suit on their claims in the Court of Common Pleas. See Lukus v. Westinghouse Electric Corp., 276 Pa.Super. 234, 419 A.2d 731 (1980). An appeal from a ruling by the Commission in a case such as this would have to be filed with the Commonwealth Court. See 42 Pa.C.S.A. § 762(a)(3). However, the instant appeal from the Court of Common Pleas is properly filed in our Court, inasmuch as it does not fall within the statutory appellate jurisdiction of the Commonwealth Court. See 42 Pa.C.S.A. § 762.

      . Presumably, this refers to a standard collective bargaining agreement between the Appellees and employers within the segment of the employing industry in which the Appellants would have customarily been employed, as a result of job referrals by the Appellees.

      . The question of whether the Pennsylvania Human Relations Act prohibitions against sex discrimination were preempted by the National Labor Relations Act, with regard to the operation of an employer’s employee health benefit plan, was examined by the United States District Court for the Western District of Pennsylvania in United States Steel Corp. v. Commonwealth of Pennsylvania Human Relations Commission, 34 FEP Cases 962 (1982). In Lukus v. Westinghouse Electric Corporation, 276 Pa.Super. 232, 419 A.2d 431 (1980), our Court reviewed a case involving a similar claim, under the Pennsylvania Act. While a labor organization was also a defendant in that case, no issue of preemption as to the employee’s claim against the union was presented or resolved.

      . In Jones v. Rath Packing Co., the dispute under consideration was whether California’s enforcement of its labeling laws was preempted by federal legislation governing the defendant’s packing operations.

      . That legislation, also commonly known as the Wagner Act, was passed in 1935. The Taft-Hartley changes, in a statute named the Labor Management Relations Act of 1947, were the first significant amendments of the National Labor Relations Act. Significant subsequent amendments were made in the law, principally by the Land-rum-Griffin legislation in 1959. The National Labor Relations Board is the federal agency charged with the administration of the Act, and its amendments.

      . The general Garmon rule had been reaffirmed by the Court in Lodge 76, International Association of Machinists and Aerospace Workers v.

        Wisconsin Employment Relations Commission, 427 U.S. 132, 96 S.Ct. 2548, 49 L.Ed.2d 396 (1976) and Motor Coach Employees v. Lockridge, 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d 473 (1971). In the Lodge 76 case, the Court announced a second preemption doctrine, not applicable in this case. That doctrine proscribes state regulation and state-law causes of action concerning conduct which Congress intended to be unregulated (427 U.S. at 140, 96 S.Ct. at 2553), and concerning conduct intended to remain a part of the self-help remedies left to combatants in labor disputes (427 U.S. at 147-148, 96 S.Ct. at 2556-2557).


author: CAVANAUGH, Judge:

text:
    536 A.2d 419
    Peter LAGUNA, Jr., Appellant, v. ERIE INSURANCE GROUP, Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 3, 1987.
    Filed Jan. 20, 1988.

      Andrew Teitelman, Philadelphia, for appellant.
    John B. Lieberman, III, Pottsville, for appellee.
    Before CAVANAUGH, ROWLEY and MONTEMURO, JJ.
   CAVANAUGH, Judge:

This case presents issues arising under the Motor Vehicle Financial Responsibility Law, hereinafter referred to as MVFRL, 75 Pa.C.S. §§ 1701-1798, regarding the availability of first party benefits to the victim of an automobile accident who is both a named insured and an insured under two separate policies. The specific issues for decision are (1) whether' a provision of a policy which precludes recovery of benefits where another insurer at a higher level of priority, as stated in 75 Pa.C.S. § 1713(a) and the policy itself, is liable for coverage is enforceable; and (2) assuming the clause is invalid, whether 75 Pa.C.S. § 1717(2), preventing the stacking of coverage of multiple policies, applies where the insured seeks the excess amount of coverage the second priority policy would provide.

The matter was submitted to the court below upon cross motions for summary judgment. Appellee, hereinafter referred to as Erie, was awarded summary judgment in its favor. The lower court found that the prohibition against stacking contained in § 1717(2) applied to the facts of the case and required a finding that appellant, hereinafter referred to as Laguna, could not collect first party benefits from Erie. We find the lower court’s interpretation of the statute and policy without error and affirm.

Mr. Laguna was a passenger in an automobile owned by a third party which was involved in an accident with another vehicle on July 4,1985. Mr. Laguna was the named insured in a policy with Federal Kemper Insurance Company, hereinafter referred to as Kemper, for an automobile which he owned. The limits of coverage for first party medical benefits under this policy was $10,000. This amount was paid to Laguna by Kemper. A separate policy of insurance issued by Erie to Mrs. Laguna for a vehicle owned by her provided for coverage in the amount of $100,000 for first party medical benefits. In this policy, Mrs. Laguna was the named insured and her husband, appellant, was covered as an insured. Since the medical expenses incurred by Laguna were in excess of $10,000, claim was made by him to Erie for benefits in the amount of the remainder of the expenses.

Erie denied coverage on the basis of the “Priorities of Policies” clause of the policy. This clause, in relevant part, provides, as follows:

We will pay First Party Benefits in accordance with the following order of priority. We will not pay if there is another insurer at a higher level of priority. The priority levels shown are in descending order from highest to lowest:
First — The insurer providing benefits to the eligible person as a named Insured.
Second — The insurer providing benefits to the eligible person as an Insured who is not a named Insured under another policy providing coverage under the Pennsylvania Motor Vehicle Financial Responsibility Law.
Third — The insurer of the motor vehicle which the eligible person is occupying at the time of the accident.
Fourth — The insurer providing benefits on any motor vehicle involved in the accident if the eligible person is not (a) occupying a motor vehicle and (b) provided coverage under any other policy.

Erie’s position is that since Laguna is a named insured under his policy with Kemper, the first level insurer, it has no obligation to pay benefits as a second level insurer. The argument follows that the existence of an insurer at the higher level of priority triggers the exclusionary language and negates any obligation of Erie to pay benefits since it is at a lower priority level.

The priorities clause of the policy is based upon the priorities established in the MVFRL, 75 Pa.C.S. § 1713. This section provides as follows:

Source of benefits

(a) General rule. — Except as provided in section 1714 (relating to ineligible claimants), a person who suffers injury arising out of the maintenance or use of a motor vehicle shall recover first party benefits against applicable insurance coverage in the following order of priority:
(1) For a named insured, the policy on which he is the named insured.
(2) For an insured, the policy covering the insured.
(3) For the occupants of an insured motor vehicle, the policy on that motor vehicle.
(4) For a person who is not the occupant of a motor vehicle, the policy on any motor vehicle involved in the accident. For the purpose of this paragraph, a parked and unoccupied motor vehicle is not a motor vehicle involved in an accident unless it was parked so as to cause unreasonable risk of injury.
(b) Multiple sources of equal priority. — The insurer against whom a claim is asserted first under the priorities set forth in subsection (a) shall process and pay the claim as if wholly responsible. The insurer is thereafter entitled to recover contribution pro rata from any other insurer for the benefits paid and the costs of processing the claim. If contribution is sought among insurers responsible under subsection (a)(4), proration shall be based on the number of involved motor vehicles.

This section creates a clear order of priority of first party benefits coverage. The provision of § 1713(b) regarding procedures to be followed in the event of multiple sources of coverage is limited to sources of equal priority. Since the statute explicitly treats the issue of multiple sources of coverage among insurers of equal priority, its silence regarding insurers at different priority levels indicates that contribution in this context is not an issue. The logical interpretation of the limitation of § 1713(b) to insurers at an equal priority level is that insureds are not entitled to benefits from multiple sources at different priority levels.

Erie further relies upon the “anti-stacking” section of the MVFRL law to support the validity of the priorities clause. This section provides as follows:

Stacking of benefits

First party benefits shall not be increased by stacking the limits of coverage of:
(1) multiple motor vehicles covered under the same policy of insurance; or
(2) multiple motor vehicle policies covering the individual for the same loss.

75 Pa.C.S. § 1717.

Applying § 1717(2), Erie argues that Laguna is expressly prohibited from seeking to collect first party benefits under more than one insurance policy for the same loss.

Mr. Laguna does not question the validity of Section 1717 and concedes that were he seeking duplicate benefits for the same loss, his claim would be barred. He contends that he does not come within the purview of Section 1717 since the same loss is not involved. He does not seek recovery against Erie for the $10,000 in medical bills which was covered by Kemper, but argues that Erie is liable for those medical bills which remain unpaid after the exhaustion of the Kemper policy limits.

We do not accept the interpretation of “loss” proposed by Laguna. Black’s Law Dictionary 5th Edition defines “loss” as follows:

Loss is a generic and relative term. It signifies the act of losing or the thing lost; it is not a word of limited, hard and fast meaning and has been held synonymous with, or equivalent to “damage”, “damages”, “deprivation”, “detriment”, “injury”, and “privation”; and injury or damage sustained by insured in consequence of happening of one or more of the accidents or misfortunes against which insurer has undertaken to indemnify the insured.

Within the context of Section 1717, it appears to us that the term “loss” refers to the physical injury suffered by the insured. Where the insured is involved in a single accident which necessitates medical treatment for injuries suffered in the accident, all medical expenses incurred are part of the “same loss” for purposes of determining the applicability of Section 1717. In the instant case, the medical bills covered by the Kemper policy and those which remain unpaid all constitute the “same loss” since they were incurred during the course of treatment for the injuries suffered from the July 4th accident.

We conclude that § 1717 prohibits recovery from Erie since first party benefits were received from Kemper for the same loss. Additionally, the policy term excluding coverage where there exists coverage at a higher priority level is fully enforceable. The provisions of each are unambiguous and there exists no basis upon which not to afford their application. See 1 Pa.C.S. § 1921(b); Davis v. Government Employees’ Insurance Co., 500 Pa. 84, 89, 454 A.2d 973, 975 (1982).

Judgment affirmed.

      . Under 75 Pa.C.S. § 1702 "Insured” is defined in relevant part as:
      (1) an individual identified by name as an insured in a policy of motor vehicle liability insurance.
      (2) If residing in the household of the named insured:
      (i) a spouse or other relative of the named insured.
      Since the insurance policies in question differentiate between named insured (as referred to in § 1702(1)) and insured (as referred to in § 1702(2)(i)) status, we employ the nomenclature used in the policies.

      . Laguna characterizes the recovery sought against Erie as excess benefits and as not within the prohibition against stacking. This definition is contrary to the generally accepted notion of stacking as relating only to use of different insurance sources to make whole a single injury. See, eg., Annotation, "Combining or ‘Stacking’ of ‘No Fault’ or Personal Injury Protection (PIP) Coverages in Automobile Liability Policy or Policies," 29 A.L.R. 4th 12, 15, n. 3, “For purposes of this annotation, ‘stacking’ refers to recovery under an additional policy or policies where the amount available under one policy is inadequate to satisfy the damages alleged or awarded____"; n. 4, "The issue of double recovery for the same damages is beyond the scope of this annotation.” Since this annotation treats the concept of stacking within a context equivalent to the one facing us, we adopt its limitation of stacking as not including issues of double recovery.


author: WIEAND, Judge:

text:
    536 A.2d 422
    Andrew H. VOGEL, III, James C. Byerly and Fulton Bank, Co-Executors of the Estate of W. Charles McMinn, III, Deceased, Appellants, v. NATIONAL RAILROAD PASSENGER CORPORATION, a/k/a Amtrak and East Hempfield Township and Pennsylvania Power & Light Company, Appellees.
    Superior Court of Pennsylvania.
    Argued Oct. 6, 1987.
    Filed Jan. 20, 1988.

      Gary Lee, Philadelphia, for appellants.
    Elizabeth Walker, Philadelphia, for Nat. R.R., appellee.

      Joseph M. Oberlies, Philadelphia, for East Hempfield, appellee.
    Andrew F. Susko, Philadelphia, for Pa. Power, appellee.
    Before CIRILLO, President Judge, and WIEAND and OLSZEWSKI, JJ.
   WIEAND, Judge:

This appeal is from an order transferring venue of plaintiffs’ cause of action on grounds of forum non conveniens from Philadelphia to Lancaster County.

W. Charles McMinn was killed on October 14, 1984 when an Amtrak passenger train collided with the automobile which he was operating at a grade crossing in East Hempfield Township, Lancaster County, Pennsylvania. On October 14, 1986, Andrew H. Vogel, III, James C. Byerly, and Fulton Bank, the co-executors of McMinn’s estate, commenced a wrongful death and survival action in the Court of Common Pleas of Philadelphia County to recover damages against National Railroad Passenger Corporation (Amtrak), Pennsylvania Power & Light Company (P P & L), and East Hempfield Township. In response to a petition filed by Amtrak for transfer of venue pursuant to Pa.R.C.P. 1006(d)(1), the trial court transferred venue to Lancaster County. This appeal followed.

Appellants contend that the trial court abused its discretion when it transferred the action to Lancaster County without benefit of depositions on disputed issues of fact. Because of the absence of depositions, appellants argue that Amtrak failed to meet its burden of proving that a change of venue was necessary for the convenience of the parties and witnesses. Appellants also contend that Amtrak waived its right to seek a transfer of venue when it engaged in preliminary discovery in Philadelphia before filing a petition for transfer of venue.

This Court considered Pa.R.C.P. 1006(d)(1) in Fox v. Pennsylvania Power & Light Co., 315 Pa.Super. 79, 461 A.2d 805 (1983), where we said:

A court is authorized by Pa.R.C.P. 1006(d) to transfer an action to the appropriate court of any other county where the original action could have been brought if it will serve the convenience of parties and witnesses. This rule vests considerable discretion in the trial judge to determine whether to grant a petition for a change of venue. On appeal from such an order, the only issue is whether the trial judge abused his discretion. Plum v. Tampax, Inc., 399 Pa. 553, 560, 160 A.2d 549, 553 (1960); Hamay v. County of Washington, 291 Pa.Super. 137, 141, 435 A.2d 606, 608 (1981); Daugherty v. Inland Tugs Company, 240 Pa.Super. 527, 531, 359 A.2d 465, 467 (1976); Tarasi v. Settino, 223 Pa.Super. 158, 161-162, 298 A.2d 903, 905 (1972).
In determining whether or not to transfer venue, a court should look to the interests of the litigants. “Important considerations ... are the relative ease of access to the sources of proof; the availability of compulsory process for the attendance of unwilling witnesses; the cost of obtaining the attendance of willing witnesses; the possible need for a view of the premises, if such would be appropriate to the action; and all other practical problems that make trial of a case expeditious and inexpensive. The ends of justice are not served by allowing a suit to be litigated in a forum where, on balance, unnecessary hardship and inconvenience would be cast on one party without compensating fair convenience to the other parties and where suit might be more conveniently litigated in another forum available equally to both parties.” Daugherty v. Inland Tugs Company, supra, 240 Pa.Super. at 530, 359 A.2d at 466. Accord: Koenig v. International Brotherhood of Boilermakers, 284 Pa.Super. 558, 575, 426 A.2d 635, 644 (1980). The choice of forum by the plaintiff is also entitled to weighty consideration and should not be disturbed lightly. Walker v. The Ohio River Company, 416 Pa. 149, 152, 205 A.2d 43, 45 (1964); Koenig v. International Brotherhood of Boilermakers, supra, 284 Pa.Super. at 575, 426 A.2d at 643; Pennsylvania Power & Light Company v. Gulf Oil Corporation, 270 Pa.Super. 514, 539-540, 411 A.2d 1203, 1217 (1979), cert. denied, 446 U.S. 966, 100 S.Ct. 2943, 64 L.Ed.2d 825 (1980); Daugherty v. Inland Tugs Company, supra, 240 Pa.Super. at 531, 359 A.2d at 467.

Id., 315 Pa.Superior Ct. at 81-82, 461 A.2d at 806.

In the instant case, there were weighty reasons for transferring appellants’ action to Lancaster County. The collision between Amtrak’s train and decedent’s automobile had occurred in Lancaster County, where the decedent had resided and worked. Letters Testamentary had been issued to appellants as co-executors of decedent’s estate by the Register of Wills of Lancaster County. Police and rescue personnel, who had responded to the accident scene, and the coroner, who had performed the autopsy, all resided in Lancaster County. If the accident site were to be viewed by a trial jury, this could be done only in Lancaster County. Moreover, one of the defendants, East Hempfield Township, was a political subdivision located in Lancaster County. Another defendant, P P & L, had its offices in Lehigh County and conducted business in Lancaster County, but had no connection with Philadelphia County. Only Aratrak, which maintained an office and did business in Philadelphia, had any apparent connection with Philadelphia County. Cf. Fox v. Pennsylvania Power & Light Co., supra, 315 Pa.Superior Ct. at 82-83, 461 A.2d at 806-807. These facts appear of record and are not disputed.

Plaintiffs’ initial choice of forum was Lancaster County. Only when new counsel entered an appearance on behalf of the plaintiffs was the Lancaster County action discontinued and a new action begun in Philadelphia. Moreover and in any event, “[t]he right of a plaintiff to choose a forum ... is not absolute. Liberalized venue rules in effect in Pennsylvania will frequently suggest the availability of more than one forum in which venue can properly be laid____ The forum non conveniens provision in Pa.R.C.P. 1006(d) is a necessary counterbalance.” Ernest v. Fox Pool Corp., 341 Pa.Super. 71, 75, 491 A.2d 154, 156 (1985), citing 1 Goodrich Amram 2d § 1006(d):l (1976).

Although depositions were not taken in support of Amtrak’s petition for change of venue, this fact is not alone fatal to the trial court’s exercise of discretion to transfer venue. Depositions are necessary only when the facts essential to a decision are in dispute. See: DiNardo v. Central Penn Air Services, Inc., 358 Pa.Super. 75, 79, 516 A.2d 1187, 1189 (1986); Urban v. Urban, 332 Pa.Super. 373, 380, 481 A.2d 662, 666 (1984). In this case there was a plethora of undisputed facts sufficient to enable a trial court to determine that it would be more convenient to the parties and witnesses to try the case in Lancaster County.

Contrary to appellant’s argument, this Court’s decision in Petty v. Suburban General Hospital, 363 Pa.Super. 277, 525 A.2d 1230 (1987), does not hold that depositions are necessary in all cases before venue can be transferred. There, the Court held that despite an opportunity to take depositions — the trial court had ordered that they be taken — the defendants had failed to provide the trial court with adequate, reliable information necessary to make an informed decision. Such is not the situation in the instant case. Here, there were sufficient, undisputed facts to permit the trial court to exercise its discretion and sufficient facts to permit appellate review. The trial court’s determination to transfer the case to Lancaster County for the convenience of the parties and witnesses was supported by the record facts. Cf. Fox v. Pennsylvania Power & Light Co., supra.

Appellants also contend that Amtrak waived its right to seek a transfer of venue by conducting preliminary discovery in the nature of written interrogatories. We disagree. Rule 1006(d) imposes no time limit upon a party who seeks to transfer venue, and neither rule nor decision suggests that discovery cannot be conducted either prior to or during the pendency of a petition to transfer venue under Pa.R.C.P. 1006(d). Amtrak’s petition was filed only 58 days after suit had been commenced against it and other defendants. The mere service of interrogatories by Amtrak upon other parties to the action in Philadelphia did not amount to a waiver of its right to seek a transfer of the action to a more convenient forum.

Order affirmed.

      . The parties inform us that plaintiffs initially commenced an action against Amtrak, John Doatch (the Amtrak engineer who was operating the train that struck McMinn’s vehicle), and East Hempfield Township in the Court of Common Pleas of Lancaster County. Plaintiffs discontinued this action on October 14, 1986, when it was learned that P P & L, whom plaintiffs' counsel had previously represented, was a potential defendant. Plaintiffs’ counsel withdrew, and plaintiffs retained new counsel in Philadelphia. New counsel filed the instant action in Philadelphia County, naming P P & L as an additional party defendant.

      . Defendants, P P & L and East Hempfield Township, filed separate preliminary objections to plaintiffs’ complaint, raising, inter alia, improper venue as well as an issue of forum non conveniens. Because the trial court transferred the action to Lancaster County on Amtrak’s petition for transfer of venue, it declined to rule on P P & L’s and East Hempfield Township’s separate preliminary objections. That issue is not now before this Court, and we express no opinion on the merits of these undetermined objections.

      . Although interlocutory in nature, the order transferring the action to Lancaster County is appealable as of right pursuant to Pa.R.A.P. 311(c).

      . Amtrak suggests in its brief, although we are unable to confirm from the record, that the trial court in Lancaster County subsequently set aside plaintiffs' discontinuance of the Lancaster County action.


text:
    536 A.2d 426
    Linda BOWER, Appellee, v. Larry S. HOOVER, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1987.
    Filed Jan. 20, 1988.

      JoAnne R. Clough, Harrisburg, for appellant.
    Michael R. Rundle, Carlisle, for appellee.

      Before WIEAND, TAMILIA and CERCONE, JJ.
   WIEAND, Judge:

In this support case, both parents have remarried and have given up employment to become full-time homemakers and to care for their two children, whose custody and support they share equally. Although both parties were able to provide half of the childrens’ support from the earnings of their spouses, the trial court required the father to pay an additional one hundred twenty-one ($121.00) dollars per month to mother for the support of the children. Father appealed. We reverse. Under the circumstances of this case, the order was an abuse of discretion.

Larry S. Hoover, father-appellant, and Linda K. Bower, mother-appellee, have been divorced since 1983. Physical and legal custody of their two minor children, Ian, born February 2, 1976, and Sarah, born January 3, 1979, is shared. The children reside with each parent fifty (50%) percent of the time. Every Friday, the children change households for the following week. Both parties have remarried, and each has a child with his or her new spouse. After the birth of mother-appellee’s new child, she elected to remain at home as a homemaker and, consequently, gave up a job which had been paying one hundred thirty-one ($131.00) dollars per week. Her new husband earns forty-nine thousand five hundred ($49,500.00) dollars per year. Father-appellant also terminated his employment, which had produced earnings of three hundred eighteen dollars and twenty-five cents ($318.25) per week, in order to become a homemaker and to provide full-time care for his children. His new wife, an attorney, earns thirty-eight thousand ($38,000.00) dollars per year.

In February, 1986, an order requiring father to pay support in the amount of one hundred fifty ($150.00) dollars per month for his two children was entered. Father appealed. This Court determined that the trial court record was insufficient to determine the needs of the children. Therefore, the order was vacated and the case was remanded for further proceedings to determine the needs of the children. Following a hearing on that matter, the trial court determined that the parties were each expending approximately two hundred ($200.00) dollars per month in direct support and expenses for the children while they were in their respective homes. The court ordered father to pay the sum of one hundred twenty-one ($121.00) dollars per month for the support of the children.

The amount of an order of child support is generally within the discretion of the trial judge. Commonwealth ex rel. Cragle v. Cragle, 277 Pa.Super. 349, 352, 419 A.2d 1179, 1180-1181 (1980). In the absence of a manifest abuse of that discretion, a reviewing court will defer to the trial court’s determination as to the amount of support to be paid. Commonwealth ex rel. Coring v. Coring, 339 Pa.Super. 92, 94, 488 A.2d 324, 325 (1985); Jaskiewicz v. Jaskiewicz, 325 Pa.Super. 507, 509, 473 A.2d 183, 184 (1984); Shank v. Shank, 298 Pa.Super. 459, 462, 444 A.2d 1274, 1275-1276 (1982); Commonwealth ex rel. Cragle v. Cragle, supra; Commonwealth ex rel. Levy v. Levy, 240 Pa.Super. 168, 170, 361 A.2d 781, 785 (1976).

Generally, “a child support order must be fair, not confiscatory, and must be consistent with the parent’s station in life and customary standard of living, making due allowance for the reasonable expenses of the parent.” Commonwealth ex rel. Cragle v. Cragle, supra, 277 Pa.Superior Ct. at 352, 419 A.2d at 1181. See: Sutliff v. Sutliff, 339 Pa.Super. 523, 538-539, 489 A.2d 764, 771 (1985); Commonwealth ex rel. Robinson v. Robinson, 318 Pa.Super. 424, 425-426, 465 A.2d 27, 28 (1983). See also: Conway v. Dana, 456 Pa. 536, 318 A.2d 324 (1974). In fashioning an order of child support, the court must consider (1) the reasonable expenses of raising the children; and (2) the respective abilities of the parents to support their children. Melzer v. Witsberger, 505 Pa. 462, 471, 480 A.2d 991, 995-996 (1984). Both parents are thereafter obligated to contribute to the support of their children in accordance with their respective abilities. Fee v. Fee, 344 Pa.Super. 276, 282-283, 496 A.2d 793, 796 (1985); Commonwealth ex rel. Mainzer v. Audi, 266 Pa.Super. 122, 124, 403 A.2d 124, 125 (1979). There is no presumption that the father, solely because of his sex and without regard to the actual circumstances of the parties, must accept the principal burden of financial support for the children. See: Conway v. Dana, supra, 456 Pa. at 539, 318 A.2d at 326.

The facts in the case sub judice are unique. Physical and legal custody of the two children in question is shared equally. The parents exchange custody of the children on a weekly basis. Therefore, each parent has custody for twenty-six (26) weeks of each year. The trial court found that each parent was expending approximately two hundred ($200.00) dollars per month in meeting the needs of their children. Each parent maintains a full set of clothing for each child. In addition, each parent expends approximately one hundred fifty ($150.00) dollars per week on reasonable household expenses. The record indicates that both parents voluntarily elected to leave the work world to assume full-time responsibility for rearing their children and that each parent relies exclusively on income produced by his or her new spouse to pay household expenses. In this manner, each parent has been able to provide fifty percent of the cost of raising the children. The children are supported reasonably and in the manner in which they were supported prior to the parties’ separation.

Although the court made cursory reference to these facts, it failed to recognize that “child rearing expenses in a shared custody setting may vary from those in a sole custody setting,” Fee v. Fee, supra, 344 Pa.Superior Ct. at 282, 496 A.2d at 796, and that, consequently, the obligations of the parents may vary as well. The expenses associated with rearing the children in this case amount to approximately four hundred ($400.00) dollars per month and each parent contributes two hundred ($200.00) dollars, or fifty percent of that amount. The amounts contributed by the parents to the support of their children are relatively equal and consistent with their respective abilities to support the children. Under these circumstances, where the parents are equally able to support their children and where they equally share that responsibility, an order obligating the father to pay additional support and thereby become responsible for a greater share of the children’s support is an abuse of discretion.

The order of support is reversed and set aside.