author: STEINBERG, J,

text:
    Commonwealth v. Ramadan

      C.P. of Lehigh County,
    no. 2004/2473.

      Matthew Falk, deputy district attorney, for the Commonwealth.

      Kathryn Roberts, for defendant.
    March 23, 2005
   STEINBERG, J,

On May 21,2004, the defendant, Missad Ramadan, who was employed as an ice cream truck vendor, was arrested and charged with failure to register, for 10 years, as required of certain offenders, a felony of the third degree. It is alleged that his adjudication as a juvenile in New Jersey for sexual assault in 1996 and subsequent placement on probation required him to register as a sexual offender in Pennsylvania under what is commonly described as Megan’s Law. 42 Pa.C.S. §§9791-9799.

The registration requirement for out-of-state offenders at the time of the defendant’s arrest was found in 9795.2(b), which provided the following:

“(b) Individuals convicted in jurisdictions outside this Commonwealth—

“(1) The registration requirements of this subchapter shall apply to individuals convicted of an equivalent offense listed in section 9795.1 where the conviction occurred in another state, territory, federal court or the District of Columbia or where the individual was sentenced by court martial, or where the individual was required to register under a sexual offender statute in the jurisdiction where the individual was convicted, and the individual:

“(Í) resides in this Commonwealth; or

“(ii) is employed or is a student in this Commonwealth.

“(2) An individual subject to registration under this subsection shall register within 10 days of his arrival in this Commonwealth.

“(3) An individual subject to registration under this subsection who is paroled to the Commonwealth pursuant to the interstate compact for the supervision of parolees and probationers shall, in addition to the requirements of this subchapter, be subject to the requirements of section 33 of the Act of August 6,1941 (P.L. 861, no. 323), referred to as the Pennsylvania Board of Probation and Parole Law.” (emphasis added)

Counsel for the defendant filed a “Motion to quash criminal information” with a supporting “Pretrial memorandum of law” which, among other claims, directs our attention to the word “conviction” in 9795.2(b) and contends 9795.2(b) does not apply to adjudications. In other words, it is alleged that the word “conviction” is limited in definition to adult convictions and does not include juvenile adjudications. Following the presentation of arguments and consideration of additional memorandum from counsel for the Commonwealth and the defendant, it is apparent that an adjudication of delinquency is not a conviction under 9795.2(b).

“When the term ‘conviction’ is used in a statute it means ‘the ascertainment of the guilt of the accused and judgment thereon by the court.’ ” Commonwealth v. Kimmel, 523 Pa. 107, 111, 565 A.2d 426, 428 (1989) (quoting Commonwealth v. Minnich, 250 Pa. 363, 367, 95 A. 565, 567 (1915)). An individual who has charges sustained under a juvenile act is adjudicated delinquent, but is not convicted. In re R.A., 761 A.2d 1220, 1224 (Pa. Super. 2000). See In Interest of J.F., 714 A.2d 467, 473 (Pa. Super. 1998) (“[A] juvenile who is adjudicated delinquent does not face the grave consequences of criminal conviction and incarceration.”); In Interest of G. T., 409 Pa. Super. 15, 22, 597 A.2d 638, 641 (1991) (“Delinquency proceedings are not criminal in nature but are intended to address the special problems of children who have engaged in aberrant behavior disclosing a need for special treatment.”); see also, In re C.M.T., 861 A.2d 348 (Pa. Super. 2004). Our Juvenile Act also expressly states that adjudication is not a conviction. 42 Pa.C.S. §6354(a).

This does not mean that juvenile adjudications have not been treated as convictions in certain circumstances. For example, in Commonwealth v. Baker, 531 Pa. 541, 564-68, 614 A.2d 663, 674-76 (1992), juvenile adjudications were introduced to demonstrate “a significant history of felony convictions involving the use or threat of violence to the person” at a death penalty hearing. A review of that decision, however, suggests that it limited the use of adjudications to sentencings in order to permit consideration of the full range of sentencing alternatives.

On other occasions, the appellate courts have concluded that the words conviction and adjudication are not synonymous. In re R.A., 761 A.2d at 1223-24 (language in 18 Pa.C.S. §4954 permitting protective orders “over any criminal matter” did not extend to juvenile proceedings); Commonwealth v. Goggins, 748 A.2d 721, 731 (Pa. Super. 2000) (prior adjudications cannot be utilized to enhance sentence under mandatory drug trafficking sentencing and penalties. 18 Pa.C.S. §7508); Commonwealth v. Thomas, 743 A.2d 460 (Pa. Super. 1999) (juvenile adjudications could not be treated as predicate convictions under three strikes law); In Interest of Wilson, 367 Pa. Super. 321, 532 A.2d 1167 (1987) (adjudication of delinquency was not conviction of a crime for purposes of escape statute).

Both the Crimes Code and the Vehicle Code contain similar definitions of the word conviction, which do not include an adjudication of delinquency. See 18 Pa.C.S. §109(3); 75 Pa.C.S. §6501(a) (“[A] conviction includes a plea of guilty, a plea of nolo contendere, a finding of guilty by a court....”). Additionally, the Vehicle Code was amended to include juvenile adjudications as predicate offenses necessitating the enhancement of an offender’s sentence. 75 Pa.C.S. §3806. Earlier decisions interpreting the Vehicle Code concluded that “in the absence of an express inclusion of juvenile delinquency adjudications as convictions by the Vehicle Code” such adjudications are not to be considered convictions. Commonwealth v. Rudd, 366 Pa. Super. 473, 478, 531 A.2d 515, 518 (1997). Other statutes, which similarly did not consider “convictions” and “adjudications” the same, have been amended to permit the use of juvenile adjudications. See Commonwealth v. McKeever, 455 Pa. Super. 605, 689 A.2d 272 (1997) (juvenile adjudications were inadmissible for impeachment purposes prior to the amendments to the Juvenile Act).

An examination of both Megan’s Law I and Megan’s Law II reveal that neither uses the word adjudication. However, the recent amendments to Megan’s Law (Megan’s Law III) now include the phrase “adjudicated delinquent.” 42 Pa.C.S. §9795.2(b). This statute now requires individuals “adjudicated delinquent” in other jurisdictions to register as sexual offenders in Pennsylvania if they were required to do so under the laws of the original jurisdiction.

Our Supreme Court has not defined the word “conviction” in Megan’s Law II, and so it is necessaiy to “discern the legislative intent underlying its enactment.” Thomas, 743 A.2d at 464 (citing Commonwealth v. Lopez, 444 Pa. Super. 206, 663 A.2d 746 (1995)). To do so, various provisions of the Statutory Construction Act, 1 Pa.C.S. §1501 et seq., must be considered.

Initially, the word “conviction” is a technical word that must be construed according to its “peculiar and appropriate meaning.” 1 Pa.C.S. §1903(a). Both the legislature and the courts have had little trouble treating the word “conviction” separately from the phrase “adjudication of delinquency.” For example, the DNA Detection of S exual and Violent Offenders, 44 Pa. C. S. § §2301 - 2336, requires “[a] person who is convicted or adjudicated delinquent” for specified offenses to have a DNA sample drawn. See 44 Pa.C.S. §2316(a). Not only does this demonstrate the legislature’s awareness of a difference between “conviction” and “adjudicated delinquent,” but it also, to some degree, provides evidence of their legislative intent. Both the DNA data testing statute and Megan’s Law are methods of protecting the public from sexual offenders. Securing DNA samples provides a database to utilize, for comparison purposes, in future investigations. Megan’s Law provides law enforcement with a registry of sexual offenders in the community. However, the legislature, until recently, required DNA samples from those “adjudicated delinquent,” but did not include that phrase in the registration requirements of sexual offenders. The Commonwealth would suggest it was unnecessary to do so, and it is nothing more than “semantics.”

The defendant is charged under a penal statute. One of the elements of the offense requires the Commonwealth to prove beyond a reasonable doubt that the defendant was “convicted” of a predicate sexual offense in New Jersey. “[Pjenal statutes ... which define criminal offenses and specify their corresponding fines and punishment, must be strictly construed.” Commonwealth v. Henderson, 444 Pa. Super. 170, 179, 663 A.2d 728, 733 (1995). Although “[t]he need for strict construction does not require that the words of a penal statute be given their narrowest possible meaning ... [i]t does mean ... that where ambiguity exists in the language of a penal statute, such language should be interpreted in the light most favorable to the accused.” Commonwealth v. Scolieri, 571 Pa. 658, 668, 813 A.2d 672, 678 (2002) (quoting Commonwealth v. Booth, 564 Pa. 228, 766 A.2d 843 (2001)). “Significantly, a court may not achieve an acceptable construction of a penal statute by reading into the statute terms that broaden its scope.” Booth, 766 A.2d at 846. See In re M.H., 864 A.2d 1251, 1255 (Pa. Super. 2004).

The Commonwealth, by treating the term “adjudicated delinquent” as synonymous with the term “conviction,” is attempting to “broaden” the scope of the statute. It is their belief that this was the intention of the legislature. In other words, it is their contention that the registration requirement for sexual offenders acts, in some manner, as a restraint on both adult and juvenile ice cream vendors. Furthermore, as evidence of the legislative intent, they direct our attention to the legislative findings and declaration of policy, 42 Pa.C.S. §9791, which make reference to “offenders” and “persons,” but not juveniles.

The Commonwealth’s arguments about legislative intent ignore both the concept of strict construction and the competing legislative interest in the treatment of juveniles. “Strict construction is a means of assuring fairness to persons subject to the law by requiring penal statutes to give clear and unequivocal warning in language that people generally would understand, as to what actions would expose them to liability for penalties and what the penalties would be.” Commonwealth v. Reaser, 851 A.2d 144, 149 (Pa. Super. 2004) (quoting Commonwealth v. Cluck, 252 Pa. Super. 228, 238, 381 A.2d 472, 477 (1977)). The historic differences between adult and juvenile courts leads to the conclusion that juvenile adjudications are not the same as adult convictions. Juvenile records are frequently sealed, or at least not disseminated. 42 Pa.C.S. §6307-§6309. Cf. 42 Pa.C.S. §9795.4(c); Commonwealth v. Carter, 821 A.2d 601 (Pa. Super. 2003). Moreover, the use of the phrase “juvenile adjudications” in other statutes, such as the DNA Detection of Sexual and Violent Offenders, leads to the conclusion that the absence of that language in Megan’s Law II, fails to provide “clear and unequivocal warning” that juvenile adjudications for the enumerated offenses required registration.

It is also arguable that the legislature did not intend to include juveniles within the registration rubric to avoid placing that stigma on them. Juvenile proceedings are not criminal proceedings, and requiring lifetime registration for offenses resolved in juvenile court would seem to be contrary to the purposes of the Juvenile Act. One of the purposes of the Juvenile Act is the following:

“Consistent with the protection of the public interest, to provide for children committing delinquent acts programs of supervision, care, and rehabilitation, which provide balanced attention to the protection of the community, the imposition of accountability, for offenses committed and the development of competencies to enable children to become responsible and productive members of the community.” 42 Pa.C.S. §6301(b).

The Commonwealth, however, sees no difference between the juvenile and adult sexual offender, and would seek to obligate all juvenile offenders with the same responsibilities as adult offenders. They maintain this position even though the legislature has continued to distinguish between juvenile and adult sexual offenders. See 42 Pa.C.S. §6358 (assessment of delinquent children by the State Sexual Offenders Assessment Board).

It is true as stated in In Interest of J.F., 714 A.2d 467, 471 (Pa. Super. 1998), that “the juvenile justice system has undergone a transformation over the past two decades in which there has been a move away from the rehabilitation and protection of juvenile offenders toward more punishment and correctional oriented policies. Nonetheless, ... a juvenile adjudication has [not] become the equivalent of an adult criminal proceeding.”

Other states have not adopted a consensus on this issue. A study completed in 2003 reflects that “nineteen states’ statutes, including the District of Columbia, are silent as to whether their registration and notification requirements apply to juveniles adjudicated delinquent for sex offenses.” An earlier study found that “seventeen states specifically require registration by juvenile sex offenders who have been adjudicated delinquent in the juvenile court system. Five states exempt juvenile sex offenders adjudicated in the... juvenile system from registration. The remaining states require registration of persons who have been ‘convicted’ of, found guilty of, ... committing one or more sex offenses.” See also, State v. Ward, 886 P.2d 890 (Kan. Ct. App. 1995) (A “juvenile” adjudication was not a conviction under the Habitual Sex Offender Registration Act because the Juvenile Offenders Code provides that adjudications under the Code are not criminal convictions).

The legislature could have included juvenile adjudications in Megan’s Law II, but chose not to do so until Megan’s Law III. 42 Pa.C.S. §9795.2(b) (individuals convicted or sentenced by a court or adjudicated delinquent in jurisdictions outside this Commonwealth ...). Additionally, although not dispositive, juveniles in Pennsylvania, or other jurisdictions, who have in the past been adjudicated delinquent for qualifying sexual offenses have not been required to register. Even if the other state required a juvenile adjudicated delinquent to register, Pennsylvania did not require them to do so upon their arrival in this state. It is apparent that until recently our legislature treated adult and juvenile sexual offenders differently with respect to registration requirements.

Finally, the defendant was charged with an offense that is alleged to have taken place on May 21,2004. Following his arrest, and upon prompting by detectives of the Allentown Police Department, the defendant registered. Megan’s Law III became effective January 24, 2005. Therefore, even assuming Megan’s Law III is now applicable to the defendant, he has complied with the registration requirements. The Commonwealth’s theory that the language of Megan’s Law III can be used to prosecute the defendant for conduct that took place in May of 2004 is faulty, and would violate the ex post facto clauses of the Constitution. “The Constitution’s two ex post facto clauses prohibit the federal government and the states from enacting laws with certain retroactive effects. See Article I, §9, cl 3 (federal government); Article I, §10, cl 1 (states).” Stogner v. California, 539 U.S. 607, 611, 123 S.Ct. 2446, 2449, 156 L.Ed.2d 544 (2003). In other words, the Commonwealth is attempting to retroactively criminalize conduct. Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964). Additionally, the Commonwealth’s argument would also seem to violate other ex post facto prohibitions pointed out by Justice Chase in Calder v. Bull, 3 U.S. 386, 3 Dal. 386, 1 L.Ed. 648 (1798), which remains the authoritative framework of the ex post facto clause. Their reliance on Commonwealth v. Miller, 787 A.2d 1036 (Pa. Super. 2001), is similarly misplaced. In that case, the defendant, an'adult, was convicted of an equivalent sexual offense in Hawaii. He moved to Pennsylvania and was required to register under 9795.2(b)(1), even though the acts in Hawaii occurred before the effective date of Megan’s Law. Finding no error, the registration requirements were not deemed punitive, but instead, remedial. See Commonwealth v. Gaffney, 557 Pa. 327, 338-39, 733 A.2d 616, 622 (1999). Here, the defendant is being prosecuted for failing to register. His prior juvenile adjudication is an element of the offense. It cannot be seriously entertained that this is a remedial registration requirement. Instead, it is a crime with punitive consequences. See Commonwealth v. Williams, 574 Pa. 487, 521-26, 832 A.2d 962, 982-85 (2003) (penalty provisions of Megan’s Law II contain “punitive measures,” in contrast to registration, notification and counseling requirements which were “not sufficiently onerous to qualify as punishment.”); see also, Commonwealth v. Wall, 867 A.2d 578 (Pa. Super. 2005) (fines as punishment).

A review of the Megan’s Law amendments does not provide any indication that the legislature intended the penalty provisions for those adjudicated delinquent to be applied retroactively. “It is black letter law that a statute cannot be applied retroactively absent the legislature’s clear intent that retroactivity is appropriate.” Commonwealth v. Estman, 2005 WL 293779 (Pa. Super. 2005). Even if some retroactive implications exist, those amendments could not apply to someone who has completed his sentence in New Jersey. Commonwealth v. Richardson, 784 A.2d 126, 130 (Pa. Super. 2001), appeal denied, 568 Pa. 630, 793 A.2d 907 (2002) (provisions in Megan’s Law requiring probationers and parolees to register could not be applied to an individual whose sentence had expired although still in custody).

“The legislature is free to criminalize previously noncriminal conduct.” Commonwealth v. Pickett, 244 Pa. Super. 433, 439, 368 A.2d 799, 802 (1976). The Commonwealth, on the other hand, cannot criminalize conduct based upon a desired expansion or interpretation of a statute due to particular facts and circumstances. Even if they anticipated the legislative amendments, it is not their function to criminalize conduct.

For the foregoing reasons, the defendant’s “Motion to quash criminal information” is granted.

ORDER

And now, March 23, 2005, upon review of the defendant’s “Motion to quash criminal information,” and consideration of the arguments of counsel, as well as their memorandum of law;

It is hereby ordered that the motion is granted and the charges are dismissed.

      . 42 Pa.C.S. §9795.2(b)( 1 )(i), (b)(2).

      . The legislature, following the defendant’s arrest, amended this section, effective January 24,2005, and it is now referred to as Megan’s Law III. 2004 Pa. Legis. Serv. Act 2004-152. See Act of May 10, 2000, P.L. 74,no. 18 (as amended42 Pa.C.S. §§9791-9799.7) (Megan’s Law II); Act of October 24, 1995, P.L. 1079 (Spec. Sess. no. 1) (Megan’s Law I).

      . Juvenile proceedings and criminal proceedings have been differentiated since 1893. Commonwealth v. Baker, 531 Pa. 541, 566 n.8, 614 A.2d 663, 675 n.8 (1992).

      . If juveniles cannot be executed, as the Supreme Court recently held in Roper v. Simmons, 125 S.Ct. 1183, 2005 WL 464890 (March 1, 2005), due to a lack of maturity, then the use of juvenile adjudications to support an aggravating circumstance in a death penalty case will in all likelihood be revisited.

      . The legislature, however, continued to use only the word “conviction,” and not the phrase “adjudicated delinquent” with respect to offenders who, while they reside in Pennsylvania, commit any of the enumerated offenses, which require registration. 42 Pa.C.S. §9795.1

      . See also, 18 Pa.C.S. §6105(c)(7), (8).

      . Commonwealth letter brief, p. 4.

      . The Commonwealth also directs our attention to Commonwealth v. Schoonover, 530 CR 2003, Yoder, J., a common pleas decision that reaches a contrary decision based upon an interpretation of 42 Pa. 6354(b)(4). This court has reviewed and considered that decision, but does not find it persuasive, and it is not binding precedent. See Castle Pre-Cast v. Stranss-Hammer, 416 Pa. Super. 53, 57, 610 A.2d 503, 505 (1992) (holding that a trial court decision from one county is not binding precedent for any other county). If Judge Yoder’s interpretation of 6354(b)(4) is correct, then juvenile adjudications would always be admissible in subsequent court proceedings, and the limited exceptions found in section 6354(b) would be unnecessary. See In re 863 A.2d 17 (Pa. Super. 2004) (“[Gjenerally, adjudications of delinquency are inadmissible in subsequent court proceedings ....”). The 1995 amendment adding section 6354(b)(4) has permitted juvenile adjudications to be used for impeachment purposes. See also, Pa.R.E. 609(d). Juvenile adjudications have not, however, been used interchangeably with convictions when a conviction is an element of the criminal offense. In re J.H., 737 A.2d 275, 278 n.3 (Pa. Super. 1999) (“the tendency to interchange these terms [adjudication and conviction] is common,... but this still does not make them equivalent.”).

      . Although adults convicted or even placed on ARD (accelerated rehabilitative disposition) for sexual offenses cannot have their records expunged, the legislataure has not placed that impediment on juveniles. 18 Pa.C.S. §9123(a)(3), (4).

      . Elizabeth Garfinkle, Coming of Age in America: The Misapplication of Sex-Offender Registration and Community Notification Laws to Juveniles, 91 Cal. L. Rev. 163, 200 (2003). It is suggested in that article that “[b]ecause of substantial difference between adult and juvenile sexual offending, as well as the differences between the procedures and outcomes of the juvenile and adult criminal justice systems, the interpretory presumption should always be that registration and community notification statues do not apply to juveniles adjudicated delinquent.” Id. at 201.

      . Stacy Heller, The Problem with Juvenile Sex Offender Registration: The Detrimental Effects of Public Disclosure, 7 B.U. Pub. Int. L.J. 271, 278-79 (1998).

      . The amendments to the registration requirements (Megan’s Law III) which pertain to juvenile adjudications only require registration for those adjudicated delinquent “outside this Commonwealth,” and required to be registered in that jurisdiction. 9795.2(b)(5).

      . The legislature, effective January 24,2005, amended 42 Pa.C.S. §9795.2(b) to include juvenile adjudications. This opinion is limited to the interpretation of the prior statute, which used the word “conviction,” but not “juvenile adjudication.”


source: Caselaw Access Project

author: CULLEN, J.,

license: Public Domain

text:
    Cardiac Consultants P.C. v. Feinberg

      C.P. of Lancaster County,
    no. CI-03-01499.

      Matthew J. Creme, for plaintiff.

      Joseph P. Hofmann, for defendant.
    October 22, 2004
   CULLEN, J.,

Cardiac Consultants P.C., plaintiff, commenced this action against Halbert J. Feinberg M.D., defendant, seeking injunctive relief as well as monetary damages based upon its claim that defendant breached a restrictive covenant in his employment agreement with plaintiff. Plaintiff subsequently abandoned its request for injunctive relief and defendant elected not to pursue his counterclaim. (N.T. April 21-22, 2004, p. 6.)

The court, sitting without a jury, heard evidence submitted by both parties. At the conclusion of the trial, the court, at the request of the parties, ordered the notes of testimony transcribed and established a briefing schedule.

FINDINGS OF FACT

Based upon its review of the evidence, and having resolved all issues of credibility, the court finds the following facts.

(1) Plaintiff, Cardiac Consultants P.C., is a professional corporation engaged in the practice of cardiology and internal medicine with offices located in Lancaster, Pennsylvania.

(2) Defendant, Halbert J. Feinberg M.D., is a physician engaged in the practice of cardiology and critical care.

(3) From January 1993, through January 31, 2003, defendant was an employee of plaintiff. Since February 1,2003, defendant has practiced medicine under the name of Halbert Feinberg Cardiology and Critical Care with his office in Lancaster, Pennsylvania.

(4) Prior to his employment by plaintiff, defendant had practiced cardiology in New York for 12 years.

(5) In 1992, plaintiff recruited defendant to join its practice in Lancaster, Pennsylvania.

(6) Plaintiff and defendant entered into a physician’s employment agreement on September 25, 1992, which established the terms and conditions of defendant’s employment by plaintiff effective January 1, 1993. (Joint exhibit 1, tab 1.) (Hereafter JX followed by tab number.)

(7) Plaintiff and defendant entered into successive physician’s employment agreements in 1994, 1995 and 1996. (JX1.)

(8) In 1996, plaintiff and defendant entered into an addendum to physician’s employment agreement which addressed the matter of compensation only. (JX 2.)

(9) The final employment agreement, a professional employment agreement, was entered into between plaintiff and defendant in 1997. (JX 3.)

(10) While defendant was employed by plaintiff, defendant received additional training or certification in left heart catheterization, transesophageal echo, permanent pacemaker insertion and licensure in cardiac nuclear imaging.

(11) The 1993 agreement established defendant’s gross compensation for the year 1993 as $140,000 and established certain other employment related benefits.

(12) The 1993 agreement also established a formula for determining defendant’s compensation for 1994 and established a minimum annual salary of $180,000 for 1994.

(13) The 1993 agreement, the 1994 agreement, the 1995 agreement, the 1996 agreement, the 1996 addendum, and the 1997 agreement defined “Net receipts” as gross receipts for medical services less reasonable operating expenses, including but not limited to rents, utility costs, supplies, non-physician employee payroll and taxes, insurance, and any expenses of a like nature which were reasonable and necessary for plaintiff in the operation of its business.

(14) The 1993 agreement, the 1994 agreement, the 1995 agreement, and the 1996 agreement defined “Share of net receipts” according to the number of physicians employed by plaintiff, i.e., if there were six physicians, a share was one-sixth of net receipts, if there were seven physicians, a share was one-seventh of net receipts, and if there were eight physicians, a share was one-eighth of net receipts.

(15) The 1996 addendum and the 1997 agreement defined “Share of net receipts” as 75 percent of the net receipts multiplied by an “Employee share factor.” The employee share factor was a percentage determined by the number of physicians employed by plaintiff.

(16) For the 1996 addendum and the 1997 agreement, the employee share factor was 14.29 percent.

(17) The formula for compensation established in the 1993 agreement for defendant’s 1994 compensation was 50 percent of a share of net receipts plus an amount determined by multiplying the remaining 50 percent of net receipts by a fraction, the numerator of which was the dollar amount of medical fees generated by defendant and the denominator of which was the total dollar amount of medical fees generated by plaintiff as a whole.

(18) The 1993 agreement included an agreement between the parties to enter into successive agreements for 1995 and 1996 and established formulas for defendant’s compensation for those years similar to the formula established for 1993.

(19) The 1993 agreement included a restrictive covenant pursuant to which defendant agreed not to engage in competition with plaintiff in the practice of cardiology and/or internal medicine in Lancaster County, Pennsylvania, for a period of two years after the termination of his employment with plaintiff.

(20) The 1993 agreement provided that upon defendant’s completion of four years of employment with plaintiff from January 1, 1993, defendant would have the right to become a shareholder in plaintiff by the purchase of shares of plaintiff’s stock at a nominal price and the execution of a shareholder’s agreement then in effect by and among plaintiff and its shareholders.

(21) The 1994 agreement provided that defendant’s compensation for 1994 would be no less than $180,000 and would be determined according to the same formula established in the 1993 agreements.

(22) The 1994 agreement contained the same restrictive covenant language and the same language entitling defendant to become a shareholder in plaintiff as existed in the 1993 agreement.

(23) The 1995 agreement provided for defendant’s compensation for 1995 to be no less than $220,000 and to be calculated according to a new formula, that is 75 percent of a share of net receipts, which share consisted of either one-seventh or one-eighth of 50 percent of net receipts plus an amount determined by multiplying the remaining 50 percent of new receipts by a fraction, the numerator of which was the dollar amount of fees generated by defendant, and the denominator of which was the total dollar amount of medical fees generated by plaintiff as a whole.

(24) The 1995 agreement contained the same restrictive covenant language and the same language entitling defendant to become a shareholder in plaintiff as existed in the 1993 and 1994 agreements.

(25) The 1996 agreement provided for defendant’s compensation for 1996 to be calculated according to a new formula, that is 100 percent of a share of net receipts, which share consisted of either one-seventh or one-eighth of 50 percent of net receipts plus an amount determined by multiplying the remaining 50 percent of net receipts by a fraction, the numerator of which was the dollar amount of medical fees generated by defendant, and the denominator of which was the total dollar amount of medical fees generated by plaintiff as a whole.

(26) The 1996 agreement contained the same restrictive covenant language and the same language entitling defendant to become a shareholder in plaintiff as existed in the 1993, 1994 and 1995 agreements.

(27) The 1996 addendum revised the formula for calculation of defendant’s compensation for 1996 to be 100 percent of a share of net receipts, which share of net receipts was determined by multiplying 75 percent of net receipts by the applicable employee share factor plus an amount determined by multiplying the remaining 25 percent of net receipts by a fraction, the numerator of which was the dollar amount of medical fees generated by defendant and the denominator of which was the total dollar amount of medical fees generated by plaintiff as a whole.

(28) On January 8,1997, plaintiff, pursuant to the terms of the 1993, 1994, 1995 and 1996 agreements, offered defendant the opportunity to become a shareholder, provided he would sign a joinder to shareholder’s agreement and a new professional employment agreement. (JX 22.)

(29) Plaintiff’s offer to defendant to sign the joinder to shareholder’s agreement and new professional employment agreement expired February 16,1997.

(30) Defendant objected to the proffered documents because of a 1994 addendum to the shareholder’s agreement of which he was previously unaware. (JX 31.)

(3.1) Defendant also objected to the inclusion in the proposed professional employment agreement of a severance pay provision which had not previously been discussed with defendant, and which defendant believed was contrary to what had been represented to him at the time of his decision to accept employment with plaintiff. (JX 30.)

(32) Defendant also objected to the inclusion in the professional employment agreement of a provision that plaintiff could not terminate the agreement except for cause if the employee had completed more than 10 years of employment. (JX 30.)

(33) Defendant refused to sign the proffered documents and attempted to negotiate certain changes with plaintiff.

(34) Plaintiff, through its president, Surender Singh M.D., refused to discuss the issues raised by defendant or to make any changes in the documents.

(35) Defendant never signed the joinder to shareholder’s agreement and never became a shareholder in plaintiff.

(36) Defendant did not sign the professional employment agreement offered to him in January, 1997. (JX 30.)

(37) Following his refusal to sign the 1997 professional employment agreement, defendant continued to be employed by plaintiff without any changes in the terms of his employment.

(38) In response to defendant’s refusal to sign the join-der to shareholder’s agreement and the professional employment agreement, plaintiff prepared a revised professional employment agreement which deleted the severance pay provision as well as the provision dealing with defendant’s option to become a shareholder in plaintiff which had appeared in the four prior agreements. (JX 3.)

(39) Plaintiff’s president, Dr. Singh, instructed Gary Holsopple, plaintiff’s practice administrator, to obtain defendant’s signature on the joinder to shareholder’s agreement and the 1997 professional employment agreement or on the revised 1997 professional employment agreement.

(40) In April or May 1997, Mr. Holsopple approached defendant and told him that plaintiff had been unable to bill for his services in 1997 because there was no employment agreement between plaintiff and defendant.

(41) Mr. Holsopple presented defendant with the revised 1997 professional employment agreement, which defendant had not seen previously, and indicated that if defendant did not sign the agreement he would not receive his next scheduled paycheck from plaintiff.

(42) Defendant signed the revised 1997 professional employment agreement on the occasion in April or May 1997, when it was presented to him by Mr. Holsopple.

(43) The formula for defendant’s compensation in the 1997 agreement was the same as had been present in the 1996 addendum.

(44) The 1997 agreement contained the same restrictive covenant language as existed in the 1993,1994,1995 and 1996 agreements.

(45) The 1997 agreement provided that if any legal action is necessary to enforce or interpret the terms of the 1997 agreement, the prevailing party shall be entitled to reasonable attorney’s fees, costs and necessary disbursements.

(46) Michael G. Lesko D.O. was offered shareholder participation at the same time as defendant. Dr. Lesko accepted the offer and executed the joinder to shareholder’s agreement (JX 4) and the 1997 professional employment agreement (JX 30).

(47) Defendant continued as an employee of plaintiff during 1997,1998,1999,2000,2001 and 2002 pursuant to the terms of the 1997 agreement.

(48) Plaintiff and defendant did not sign any further employment agreements after the 1997 agreement.

(49) On or about November 1, 2002, defendant submitted a letter of resignation of his employment to plaintiff effective January 31,2003. (JX 5.)

(50) Physicians Alliance Ltd. (PAL) is a multispeciality group of physicians.

(51) PAL is a corporation approximately 60 percent of which is owned by its member physicians and the remainder is owned by Health Management Associates (HMA).

(52) HMA owns approximately 50 hospitals in the United States with three in Pennsylvania including Lancaster Regional Medical Center.

(53) HMA also owns Central Penn Management Group (CPMG), which provides practice management services including billing, accounting, human resources and consultation to about 150 physicians in Central Pennsylvania.

(54) The largest group of physicians to which CPMG provides services is PAL.

(55) PAL was formed in the mid 1990s by a group of primary care physicians in Lancaster County in response to certain economic changes affecting the practice of medicine.

(56) Each medical practice in PAL is run independently and is its own cost center. Practice management services, purchasing, and negotiating contracts are handled through the organization.

(57) LGMG, the other large group of physicians in Lancaster County, is affiliated with Lancaster General Hospital.

(58) When PAL grew to include specialists, two of its priorities were adding orthopedics and cardiology.

(59) PAL sought to include cardiology among its services due to economic issues presented by the largest cardiology practice in Lancaster playing one hospital against the other, the need to support Lancaster Regional Medical Center, the ability to support the other physicians in PAL, especially the cardiovascular surgeons, and for the best interest of the physicians’ patients.

(60) HMA conducted an analysis using an independent national company and determined that there was a need for additional cardiologists in Lancaster County.

(61) During 2001 and 2002, PAL approached plaintiff with a proposal that plaintiff become a practice in PAL.

(62) It was understood by plaintiff, defendant and PAL that PAL intended to add a cardiology specialty either by the addition of a local practice or physician or by recruiting a physician from outside the Lancaster area.

(63) Cardiologists obtain patient referrals from primary care physicians or from hospital emergency rooms.

(64) Part of PAL’s proposal to plaintiff was that cardiac patients who did not already have an established relationship with a cardiologist or who did not otherwise express a physician preference would be referred by PAL physicians to plaintiff.

(65) As part of PAL’s proposal, plaintiff would sell the assets of the practice to Professional Healthcare Group (PHG), a PAL affiliate which owns the assets of the PAL practices, in exchange for shares of stock. Each physician who is a shareholder has an equal amount of stock and an equal vote in the organization.

(66) PAL is a professional corporation for the physicians who are its employees.

(67) PHG is a service corporation which serves PAL and covers all non-physician related services and expenses. The PAL physicians and HMA own the stock of PHG.

(68) Defendant was greatly in favor of accepting the PAL proposal but plaintiff was not, due to- a concern that the practice would suffer a loss of patient referrals from physicians, practices or groups not affiliated with PAL.

(69) Plaintiff declined to accept the PAL proposal and to affiliate with PAL.

(70) After plaintiff declined to affiliate with PAL, PAL pursued affiliation briefly with another Lancaster cardiology practice, Heart Specialists, and asked HMA to recruit a cardiologist from outside the Lancaster area.

(71) HMA began the process of recruiting cardiologists for PAL from outside the area in approximately December 2002.

(72) After his resignation in November 2002, defendant had discussions with PAL or HMA concerning a future association.

(73) Beginning on February 1,2003, defendant opened a cardiology practice, Halbert Feinberg Cardiology and Critical Care, as an employee of HMA in order to guarantee him a source of income until he would receive insurance payments for medical services he performed.

(74) From February 1, 2003 until July 31, 2003, defendant was an employee of HMA pursuant to an employment agreement which contained, inter alia, a restrictive covenant.

(75) From February 1,2003 until July 31,2003, CPMG paid the operating expenses of defendant’s practice in the amount of $348,442. (JX 28.)

(76) From February 1,2003 until July 31,2003, CPMG paid defendant a salary of $153,456 and a bonus of $60,361. (JX 28.)

(77) Beginning February 1, 2003, defendant began seeing patients referred by PAL physicians as well as his former patients who chose to transfer from plaintiff’s practice to defendant’s new practice. (JX 10.)

(78) Since opening his practice, defendant has declined to accept referrals from non-PAL physicians and has not solicited patient referrals from physicians or hospitals not affiliated with PAL.

(79) After opening his practice, defendant attempted to refer patients in need of cardiology services which defendant could not perform to plaintiff.

(80) Plaintiff refused to accept non-emergency referrals from defendant. (JX 23.)

(81) Since defendant opened his own practice, plaintiff’s physicians have seen only one of defendant’s patients, an electrophysiology patient, when plaintiff’s physician was covering for other electrophysiologists who were either unavailable for medical reasons or out of town.

(82) Beginning August 1,2003, defendant became an employee of PAL pursuant to an employment agreement which contained, inter alia, a restrictive covenant.

(83) Beginning August 1, 2003, the expenses of defendant’s practice were paid through PHG and his compensation was paid by PAL.

(84) From August 1, 2003, through December 31, 2003, the operating expenses of defendant’s practice in the amount of $202,403 were paid through PHG.

(85) From August 1,2003 through December 31,2003, defendant received $ 170,659 in total physician compensation from PAL including $155,024 in salary, and the remainder in fringe benefits, dues and memberships, travel, education and miscellaneous. (JX 28.)

(86) Defendant also received a bonus in the amount of $50,082 for 2003 which was paid in 2004.

(87) As a PAL physician, defendant was eligible to receive a bonus from an income pool divided among PAL physicians, family physicians as well as specialists.

(88) For the final quarter of 2003, the only period for which he was eligible to participate, defendant received a bonus of $7,500 from the income pool which was paid in 2004.

(89) When defendant discussed his future association with HMA and PAL, he informed both of the restrictive covenant in his employment agreement with plaintiff and was told that this matter was his problem.

(90) Defendant’s employment by HMA occurred at approximately the same time FIMA was in the final stages of recruiting a cardiologist from the Philadelphia area to come to Lancaster.

(91) An offer of employment was not made to the physician from the Philadelphia area by PAL because it was felt the physician’s personality was not a match for the community.

(92) The restrictive covenant in the employment agreement between CPMG and defendant was not an impediment to defendant’s employment by PAL in light of the relationship between CPMG and PAL.

(93) When defendant became an employee of CPMG and PAL, he did not consider himself in violation of the restrictive covenant in his employment agreement with plaintiff because, first, he did not view himself in competition with plaintiff, and, second, he believed he had been treated unfairly by plaintiff in that he was brought into the practice under one set of circumstances and was presented with a different set of circumstances in 1997.

(94) Defendant did not view himself in competition with plaintiff because plaintiff had chosen not to be the market for PAL referrals.

(95) The overhead expenses of plaintiff’s practice are 60 percent of net revenue at the Lancaster Health Campus on an annual basis.

(96) In 2002, plaintiff had gross charges of $15,-104,857.89 and gross payments on these charges of $5,165,141.62.(1X19,29.)

(97) In 2002, his last year of employment by plaintiff, defendant had gross charges of $ 1,944,565.91 and gross payments on these charges of $848,234.99. (JX 29.)

(98) In 2003, plaintiff had gross charges of $13,-980,920.94 and gross payments on these charges of $4,515,758.28. (JX 19, 29.)

(99) Using the gross payments received on defendant’s charges for 2002 and applying the overhead expense factor of 60 percent, plaintiff received $339,293 less net income in 2003 than in 2002.

(100) Defendant’s total compensation for 2002 was $283,800. (JX 29.)

(101) PAL referrals to plaintiff in 2002 were 18,640 patients with total charges of $3,441,483.08 and total payments of $1,138,581.67. (JX 13.)

(102) PAL referrals to plaintiff in 2003 were 14,155 patients with total charges of $2,475,690.99 and total payments of $790,015.80. (JX 13.)

(103) In 2003, there were 4,485 fewer patient referrals to plaintiff by PAL physicians with the result that there was a difference of $965,792.81 in charges and $348,565.87 in payments between 2002 and 2003.

(104) Applying the overhead expense factor of 60 percent, plaintiff received $139,426 less net income from PAL referrals in 2003.

(105) Plaintiff’s attorney’s fees through trial are $52,-330.50 with costs of $335.45 for a total of $52,665.95.

(106) Defendant’s attorney’s fees through trial are $41,957 with costs of $148.75 for a total of $42,105.75.

The court includes as findings of fact the factual determinations included in the discussion section of this memorandum.

DISCUSSION

In this litigation, plaintiff maintains that defendant has breached the restrictive covenant in the 1997 professional employment agreement by engaging in the practice of cardiology in Lancaster County within two years of the termination of his employment. Although plaintiff has abandoned its claim for injunctive relief, it contends that it is entitled to monetary damages to compensate for the harm to its practice caused by defendant’s conduct.

Defendant asserts that he is not bound by the terms of the restrictive covenant because of a lack of consideration and because his signature on the 1997 professional employment agreement was procured under duress. In the alternative, defendant posits that plaintiff has not been harmed by his actions and that the restrictive covenant should not be enforced because it is contrary to the needs of the community.

Section 11 of the 1997 professional employment agreement provides:

“(11) Restrictive covenant. In the event of the termination of the employment of employee for any reason, the employee hereby agrees that he shall not directly or indirectly, within the County of Lancaster, enter into or engage generally in competition with the employer or any of its shareholders in the business of the practice of cardiology and/or internal medicine either as an individual on his own, or as a partner or joint venturer, or as an employee or agent of any person, partnership, or corporation, or as an officer, director, or shareholder or otherwise for a period of two (2) years after the date of termination. This covenant on the part of the employee shall be construed as an agreement independent of any other provision of this agreement, and the existence of any claim or cause of action of the employee against the employer, whether predicated upon this agreement or otherwise, shall not constitute a defense to the enforcement by the employer of the covenant.”

For a restrictive covenant to be enforceable in an employment context, three criteria must be satisfied. The restrictive covenant must (1) relate to (be ancillary to) a contract for the sale of the good will of a business or to a contract of employment, (2) be supported by adequate consideration, and (3) be reasonably limited in both time and territory. Piercing Pagoda Inc. v. Hoffner, 465 Pa. 500, 351 A.2d 207 (1976); George W. Kistler Inc. v. O’Brien, 464 Pa. 475, 347 A.2d 311 (1975); Bilec v. Auburn & Associates Inc. Pension Trust, 403 Pa. Super. 176, 588 A.2d 538 (1991). Although close judicial scrutiny is warranted in cases of restrictive covenants involving physicians due to the importance of medical services to the community, such covenants may nevertheless be enforced in appropriate circumstances. New Castle Orthopedic Associates v. Burns, 481 Pa. 460, 392 A.2d 1383 (1978); West Penn Specialty MSO Inc. v. Nolan, 737 A.2d 295 (Pa. Super. 1999).

When a covenant not to compete is signed subsequent to employment, it must be supported by new consideration. George W. Kistler Inc. v. O’Brien, 464 Pa. 475, 347 A.2d 311 (1975); Maintenance Specialties Inc. v. Gottus, 455 Pa. 327, 314 A.2d 279 (1974). Such new consideration could be in the form of a corresponding benefit to the employee or a beneficial change in his employment status. Davis & Warde Inc. v. Tripodi, 420 Pa. Super. 450, 616 A.2d 1384 (1992); Ruffing v. 84 Lumber Company, 410 Pa. Super. 459, 600 A.2d 545 (1991); Modern Laundry & Dry Cleaning Co. v. Farrer, 370 Pa. Super. 288, 536 A.2d 409 (1988).

A covenant not to compete is breached if the employee knowingly engages in activity, the necessary effect of which will be to foster, if not instigate, competition. Aiken Industries Inc. v. Estate of Wilson, 477 Pa. 34, 383 A.2d 808 (1978).

In light of the issues raised by the parties, it is appropriate to determine first if the restrictive covenant is enforceable. Only if this question is answered in the affirmative will it be necessary to decide if defendant breached the restrictive covenant and what should be the economic consequences of such conduct.

Defendant argues that the restrictive covenant is unenforceable due to lack of consideration and because the agreement containing this covenant was signed under duress. The court will address this latter issue first.

Duress is an affirmative defense, Pa.R.C.P. 1030(a), on which defendant bears the burden of proof. Beato v. DiPilato, 175 Pa. Super. 602, 106 A.2d 641 (1954).

The record reflects that defendant first saw the revised 1997 professional employment agreement on the day in April or May 1997, when it was presented to him for signature. This occurred at plaintiff’s office where defendant was working. Plaintiff’s practice administrator, Gary Holsopple, informed defendant that the practice had been unable to bill for defendant’s services in 1997 due to the lack of an employment contract. Mr. Holsopple also indicated that, if the agreement was not signed, defendant would not receive his next scheduled paycheck. There is no evidence that Mr. Holsopple hindered defendant from leaving the area where they were talking or otherwise prevented him from reading the agreement. Defendant had previously consulted with legal counsel with respect to the initial 1997 professional employment agreement, and this option remained available to him.

Defendant’s employment contract with plaintiff expired December 31,1996. (JX 1.) The parties, however, continued defendant’s employment conditions unchanged at least for a period of time. Defendant had made it clear that he would not sign the initial professional employment agreement with its severance pay provision or the joinder to shareholder’s agreement. It is apparent, therefore, that a fundamental change not previously contemplated by either side would occur in the parties’ relationship.

Defendant does not dispute plaintiff’s assertion that it was unable to properly bill for his services in the absence of a signed employment agreement, thus imposing on plaintiff the burden to clarify his employment status. Further, there is no evidence defendant complained that he had been coerced into signing the professional employment agreement in the six years between its execution and the commencement of this litigation, or that he took any steps to remedy this perceived wrong.

Accordingly, the court concludes that defendant has failed to establish that he signed the revised 1997 professional employment agreement under circumstances constituting duress. See Degenhardt v. Dillon Company, 543 Pa. 146, 669 A.2d 946 (1996).

The claim that the restrictive covenant in the revised 1997 professional employment agreement is unenforceable for lack of consideration presents a more substantial concern.

Although Pennsylvania law permits the enforcement of restrictive covenants, they are not favored and have been viewed historically as a trade restraint that prevents a former employee from earning a living. Hess v. Gebhard & Co. Inc., 570 Pa. 148, 808 A.2d 912 (2002).

Defendant had signed four successive employment agreements, each of which contained a restrictive covenant. This case, therefore, does not fit squarely within the precedents in which a written contract with a restrictive covenant is introduced for the first time after a period of employment without any reference to such a provision. However, defendant had been employed from January 1997 through April or May of that year without a contract with such a covenant. As such, he cannot be considered a new employee for whom an initial contract of employment may satisfy the requirement of adequate consideration. Moreover, defendant’s refusal to accept shareholder status or to execute the 1997 professional employment agreement offered to and accepted by Dr. Leslco presaged a significant change in the relationship between plaintiff and defendant. Mr. Holsopple testified that there had been discussion among the physician shareholders as to what the consequences would be if defendant did not sign a new employment agreement. If defendant did not become a shareholder or sign an employment agreement, a decision would have to be made whether defendant would continue to be employed.

Viewing these circumstances in light of the legal principles cited above, the court concludes that defendant is appropriately viewed as a current employee asked to assume a contract containing a restrictive covenant. Unlike more mundane terms of employment, a restrictive covenant is disfavored in law and, therefore, is to be viewed as sui generis. Accordingly, for such a covenant to be enforceable in this case, it must be supported by new consideration, i.e., a corresponding benefit to defendant or a beneficial change in his employment status upon execution of the revised 1997 professional employment agreement.

The record fails to disclose any benefit to defendant which would be adequate to constitute new consideration. The revised 1997 professional employment agreement was simply plaintiff’s standard professional employment agreement with certain deletions. The formula for calculating defendant’s compensation and his fringe benefits were unaffected. However, the agreement would have a negative financial impact upon defendant.

Although the provision for severance pay had been eliminated from his agreement, defendant was required to pay for this provision since severance payments to departing physicians were treated as an expense of the practice and deducted from gross receipts. Since plaintiff’s overhead was fairly consistent, the payment of a severance benefit would increase the expenses of the practice and thereby reduce the net receipts upon which the compensation of defendant as well as the remaining physicians was calculated. Even though he chose voluntarily not to participate, the introduction of the severance pay plan was a corresponding detriment, not a benefit, to defendant.

The professional employment agreement also contained a provision that an employee who had completed more than 10 years of employment with plaintiff could not be terminated without cause. (JX 3, 30, |10(a)(i).) This clause would not become effective until six years after the effective date of defendant’s 1997 professional employment agreement, and plaintiff retained the right on a yearly basis to terminate his employment without cause prior to that point. Defendant’s prior employment contracts were each for a term of one year. Since plaintiff retained the right to terminate him without cause until he had been employed for more than 10 years, defendant’s 1997 professional employment agreement was in effect a series of six one-year contracts. The possibility of a future limit on plaintiff’s ability to terminate defendant’s employment without cause does not constitute consideration for the restrictive covenant in issue.

Plaintiff argues that adequate consideration for the restrictive covenant may be found in defendant’s refusal to accept shareholder status since this relieved him of the liabilities and responsibilities inherent in an ownership interest in the practice. This purported consideration is illusory. Defendant was not relieved of any liabilities and responsibilities for the obligations of the practice since, as a mere employee of the professional corporation, he never had or assumed any. The result would be different if defendant had been a shareholder and the remaining shareholders agreed as part of his employment agreement to assume his share of the practice’s obligations.

For the reasons stated above, the court concludes that the restrictive covenant in defendant’s 1997 professional employment agreement is unenforceable due to lack of new consideration. Having reached this conclusion, the court need not determine whether defendant has breached the restrictive covenant and, if so, the monetary damages to which plaintiff would be entitled. Any discussion of these matters would amount to only an ill advised and unwarranted advisory opinion.

Finally, as the prevailing party, defendant is entitled to an award of attorney’s fees and costs. (JX 3, ¶12.)

Consistent with the foregoing, the court makes the following conclusions of law.

CONCLUSIONS OF LAW

(1) The court has jurisdiction over the parties and the subject matter of this dispute.

(2) Plaintiff and defendant entered into a professional employment agreement in April or May 1997, which contained a restrictive covenant. (JX 3.)

(3) The restrictive covenant in the 1997 professional employment agreement was not supported by new consideration, i.e., a corresponding benefit to defendant or a beneficial change in defendant’s employment status.

(4) The restrictive covenant in the 1997 professional employment agreement is unenforceable.

(5) Plaintiff has abandoned its claim for injunctive relief.

(6) Defendant has abandoned his counterclaim.

(7) Plaintiff is not entitled to an award of monetary damages since the basis for its claim, the restrictive covenant, is unenforceable.

(8) Defendant is the prevailing party in this litigation and is entitled to recover reasonable attorney’s fees and costs.

For the reasons stated herein, the court enters the following:

ORDER

And now, October 22,2004, the court orders a verdict in favor of defendant Halbert J. Feinberg M.D., and against plaintiff, Cardiac Consultants P.C., on plaintiff’s complaint.

Defendant, Halbert J. Feinberg M.D., is awarded attorney’s fees and costs in the amount of $42,105.75 to be paid by plaintiff, Cardiac Consultants P.C.

      . The language of the restrictive covenant indicates that the parties viewed this provision as distinct from the other terms of the agreement. (JX 3, 30, ¶11.)


author: COX, J.,

text:
    Racicot v. Erie Insurance Exchange

      C.P. of Lawrence County,
    no. 10285 of 1998, C.A.

      Anthony N. Gemma, for plaintiff.

      Charles W. Garbett, for defendant.
    September 10, 2004
   COX, J.,

Before this court for disposition is the petition to modify, correct or vacate award of arbitrators filed by the defendant.

The relevant facts and procedural history are as follows: On June 2, 1993, while driving in Ohio, plaintiff, Garcia G. Racicot, a resident of Lawrence County, Pennsylvania, sustained injuries in a motor vehicle accident caused by Philip J. Miranda, a resident of Ohio (tort-feasor). At the time of the accident, plaintiff was insured by defendant, Erie Insurance Exchange, a Pennsylvania insurance company, and the tort-feaser was insured under an Ohio Financial Responsibility Bond issued by the Coronet Insurance Company of Ohio. Pursuant to plaintiff’s insurance contract, plaintiff received payment of medical expenses and lost wages to the policy limits of $25,000. The insurance contract also contained an endorsement for uninsured/underinsured motorist (UIM) coverage.

Plaintiff brought suit against the tort-feasor in the Court of Common Pleas of Trumbull County, Ohio, to recover damages from the accident. Coronet settled the Ohio civil action for $12,500, the tort-feasor’s policy limit, and a full release. Plaintiff sought UIM benefits from defendant, but defendant rejected the claim. Thereafter, pursuant to the insurance contract, the dispute was referred to arbitration in Lawrence County, Pennsylvania.

An arbitration hearing was held on May 21,1998. The arbitrators applied Ohio law to the dispute because the accident giving rise to the arbitration took place in Ohio. Thereafter, on June 5,1998, plaintiff was awarded UIM damages in the sum of $181,728.12.

On July 1,1998, following the arbitrators’ award, defendant filed with the Court of Common Pleas of Lawrence County, a petition to modify, correct or vacate award of arbitrators alleging a mistake of law by the arbitrators. On May 25,1999, the Honorable Ralph D. Pratt found the arbitrators’ award contrary to law and vacated the award. Judge Pratt also discharged the first panel of arbitrators and remanded the case to a new panel of arbitrators for a new hearing with the directive to apply Pennsylvania substantive law in their adjudication of the dispute. Plaintiff attempted to file an appeal from President Judge Pratt’s order, but it was quashed as being interlocutory.

Following a second arbitration hearing before the new panel of arbitrators, plaintiff filed an unopposed motion to confirm the arbitrator’s award and then appealed to the Superior Court. On appeal, the Superior Court found that President Judge Pratt did not have the authority to vacate the entire arbitration award and all actions following the defendant’s petition to modify, correct or vacate award of arbitrators were a legal nullity. The Superior Court remanded the case to this court with instructions to address defendant’s original petition to modify, correct or vacate award of arbitrators.

The insurance policy in the present case required arbitration under the Pennsylvania Arbitration Act of 1927 for coverage disputes arising under the policy. Thus, our standard of review in a proceeding to modify or correct the arbitration award is that set forth at section 7302(d) (2) of the 1980 Arbitration Act. 42 Pa.C.S. §7302(d)(2) historical note; Nationwide Insurance Co. v. Calhoun, 430 Pa. Super. 612, 617, 635 A.2d 643, 646 (1993).

Section 7302(d)(2) reads as follows:

“Where this paragraph is applicable a court in reviewing an arbitration award pursuant to this subchapter shall, notwithstanding any other provision of this subchapter, modify or correct the award where the award is contrary to law and is such that had it been a verdict of a jury the court would have entered a different judgment or a judgment notwithstanding the verdict.” 42 Pa.C.S. §7302 (d)(2).

This section grants a trial court the power to “modify or correct the award where the award is contrary to law.” Nationwide Mutual Insurance Co. v. Heintz, 804 A.2d 1209 (Pa. Super. 2002). The statute does not grant this court the power to vacate the award under the facts of this case. Therefore, this court must determine whether the award of the arbitrators is “contrary to law” and make any necessary modifications or corrections to that award.

The question becomes whether the arbitrators erred in applying Ohio substantive law rather than Pennsylvania substantive law and issued an award contrary to law. This court finds that the arbitrators erred.

Personal injury cases should be governed by the law of the state having the most significant relationship with the occurrence and the parties. Griffith v. United Air Lines Inc., 416 Pa. 1, 15, 203 A.2d 796 (1964). “[Elements] considered vital in determining the state of most significant relationship include place of injury, place of conduct, domicile of the parties, and the place where the relationship between the parties is centered.” Id.

Applying the factors set forth in Griffith, this court finds that Ohio lacks a significant relationship with this case. The plaintiff is a resident of Pennsylvania and the defendant has its principal offices located in Erie, Pennsylvania. The insurance contract was entered in Pennsylvania pursuant to Pennsylvania law. The arbitration took place in Pennsylvania under Pennsylvania arbitration law. The only connection this case has with Ohio is that the accident occurred in Ohio. The original case between the tort-feasor and plaintiff has been settled and this case involves an underinsured motorist claim under the insurance contract. Therefore, Pennsylvania has the greatest interest in the outcome of this litigation and the most significant relationship. As Pennsylvania has the greatest interest, Pennsylvania law should be applied to the case. Therefore, the arbitrators erred by following Ohio law in fashioning an award and entered an award contrary to law.

As the arbitrators issued an award contrary to law, this court must modify or correct the erroneous award pursuant to 42 Pa.C.S. §7302(d)(2). Specifically, the provisions of 75 Pa.C.S. §1722 must be applied to the award of the arbitrators.

The award issued by the arbitrators totaled $181,728.12. The arbitrators calculated the total award as follows: (1) $19,228.12 for “medicals”; (2) $92,500 for “wage loss”; and (3) $70,000 for “pain and suffering.”

The plaintiff agrees that if Pennsylvania law applies to this case, then the medical expenses would be properly excluded. (Plaintiff’s brief, p. 2.) For the reasons stated previously, this court has found that Pennsylvania law does apply to this case. Therefore, the award must be corrected by eliminating the portion of the award pertaining to medical expenses, thus reducing the overall award by $19,228.12.

Defendant’s next contention is that the arbitrators erred for failing to reduce the total award by the amount of $12,500 to account for monies paid by the tort-feasor’s insurance company for the “underlying tort claim.” The court finds no error and finds the plaintiff’s argument persuasive. The very nature of the arbitration in question was to determine the amount of damages recoverable under the underinsured motorist coverage, that is the amount of damages suffered by plaintiff not covered by the tort-feasor’s insurance, and not to determine the total value of plaintiff’s loss. There is no indication in the record that the “underlying tort claim” settlement covers anything but pain and suffering. Thus, this court cannot grant credit to defendant for those funds as payment of first party benefits on medical bills or lost wages. Therefore, this court finds that the arbitrators did not error by failing to reduce the award by the amount of the “underlying tort claim.”

Defendant’s final allegations of error by the arbitrators regard the portion of the award pertaining to the amount of lost wages. The defendant alleges two errors. First, defendant complains the amount awarded is inflated due to the alleged reliance by the arbitrators on evidence that allegedly should have been excluded. Second, defendant alleges that any award should be reduced by $25,000 as first-party benefits paid and excludable under 75 Pa.C.S. §1722.

With respect to defendant’s contention that the arbitrators relied upon evidence not of record, the court cannot agree. It is well-settled that credibility determinations are for the fact-finder, which is free to believe all, part or none of the evidence presented. Ty-Button Tie Inc. v. Kincel and Co. Ltd., 814 A.2d 685 (Pa. Super. 2002). Atrial court should be loath to substitute its judgment for that of the fact-finder and may do so only in very limited circumstances. Matheny v. West Shore Country Club, 436 Pa. Super. 406, 648 A.2d 24 (1994). The record available to this court is scant, to say the least. There are no notes of testimony or official exhibits provided for the court’s review. The copies of exhibits attached to defendant’s petition are not questioned with respect to their authenticity, but rather the court has no testimony that may explain, limit or expand the information contained in the exhibits or even demonstrate in what context these exhibits may have been introduced. Therefore, the court has little choice but to rely upon the judgment of the arbitrators and their impression of the evidence. The court is loath to substitute its judgment for that of the arbitrators under these circumstances.

According to the dissenting arbitrator, evidence existed from the treating chiropractor that related plaintiff’s back injury to the accident as well as testimony from the plaintiff. Even though the dissenting arbitrator did not give that report significant weight, it is possible, even likely, that the other arbitrators did. Even the dissenting arbitrator found plaintiff’s testimony credible. Therefore, this court cannot and will not upset the arbitrator’s finding that the value of total lost wages is $92,500 for “wage loss.”

Finally, with respect to the $25,000 for which defendant wants credit, the court finds that this amount must be credited to defendant. The parties agree that this amount was paid by defendant to plaintiff. The parties also agree that such credit must be given if Pennsylvania law is applied to this case rather than Ohio law. As this court finds that Ohio law was incorrectly applied to the facts of this arbitration, it stands to reason that no credit was given to defendant for this amount. The court does not find plaintiff’s argument that this amount has already been taken into consideration persuasive given the application of Ohio law by the arbitrators. Therefore, the award must be corrected by modifying the portion of the award pertaining to lost wages, thus reducing the award for lost wages by $25,000.

In conclusion, the award of the arbitrators is corrected and modified as follows: (1) the $19,228.12 for “medicals” is eliminated; (2) the $92,500 for “wage loss” is reduced by $25,000 to reflect payments already made under first-party benefits; and (3) the $70,000 for “pain and suffering” remains unchanged. The award for under-insured motorist coverage due to plaintiff is therefore corrected andmodifiedto total $137,500. Defendant shall receive credit to this total for all additional payments made by defendant to plaintiff with regard to this underinsured motorist claim not specifically addressed by this opinion.

ORDER

Now September 10, 2004, this case having been before the court for oral argument on June 28,2004, on the petition to modify, correct or vacate award of arbitrators filed by the defendant, with counsel for the parties appearing, the plaintiff, Garcia G. Racicot, represented through counsel, Anthony N. Gemma, Esquire, and the defendant, Erie Insurance Exchange, represented through counsel, Charles W. Garbett, Esquire, and upon consideration of the oral arguments and briefs presented and submitted by both counsel, and a complete and thorough review of the record, the court enters the following order and it is hereby ordered, adjudged, and decreed as follows:

(1) The petition to modify, correct or vacate award of arbitrators filed by the defendant is hereby granted in part and denied in part. The award of the arbitrators is modified and corrected as set forth in the attached opinion issued this same date.

(2) The prothonotary is directed to serve a copy of this order of court upon counsel of record, Anthony N. Gemma, Esquire and Charles W. Garbett, Esquire.

      . This case is now before this court as President Judge Ralph D. Pratt, planning to retire from the bench, did not schedule proceedings on new issues.


author: CHESLOCK, J,

text:
    Estate of Carvalho v. Kasak

      C.P. of Monroe County,
    no. 1241 CV 2004.

      Kevin P. Foley for plaintiff.

      Stephen W. Zakos, for defendants Rudolph and Helen Kasak.
    August 11, 2004
   CHESLOCK, J,

This matter is before the court on defendant Richard Kasak’s (defendant) and defendants Rudolph and Helen Kasak’s motion for judgment on the pleadings. The procedural history of this case is as follows: plaintiff, The Estate of Jeffrey Carvalho (deceased minor), by and through his parents, Michael Carvalho and Cynthia Carvalho, commenced this action by complaint filed February 20,2004. Defendants Rudolph and Helen Kasak (Kasaks) filed an answer with new matter on April 30, 2004. Defendant filed his answer and new matter on May 24, 2004. On June 24,2004, defendant filed a motion for judgment on the pleadings, a praecipe for argument and a memorandum in support of the motion. On June 29,2002, Kasaks filed a motion for judgment on the pleadings, a praecipe for argument and a memorandum in support of the motion.

Plaintiff filed a praecipe to attach verification to complaint on June 30, 2004. Defendant then filed a motion to strike plaintiff’s praecipe to attach verification to complaint on July 13, 2004. On July 14, 2004, this court issued an order consolidating the issues of the motions for judgment on the pleadings and motion to strike plaintiff’s praecipe to attach verification to complaint for argument. On July 30, 2004, plaintiff filed a memorandum in opposition to the motions for judgment on the pleadings. On August 2, 2004, we heard oral arguments from the parties and we are now prepared to dispose of these matters.

This case arises from a fatal accident occurring on or about June 2, 2002, when defendant operated a vehicle, owned by the Kasaks, and failed to negotiate a curve, on Hidden Lake Road in Middle Smithfield Township, and struck a tree. At the scene of the accident, Jeffrey Car-valho and Michael Treible were pronounced dead by the Monroe County Deputy Coroner, Cindy Skrzypek. Plaintiff filed this action in February 2004.

In the motions for judgment on the pleadings, defendant and Kasaks aver that the complaint filed in this matter did not contain a verification as required by Pa.R.C.P. 1024 and, also, that the complaint was improperly pled in that it was not brought by a proper party as required by Pa.R.C.P. 2202. Defendant also requests that the plaintiff’s praecipe to attach verification to complaint be struck. Defendant and Kasaks request this court to enter judgment in their favor and, in essence, dismiss plaintiff’s complaint against them.

A motion for judgment on the pleadings is in effect a demurrer. Bykowski v. Chesed Co., 425 Pa. Super. 595, 598, 625 A.2d 1256, 1258 (1993) (citing Standard Pennsylvania Practice 2d §31:18). In applying the same principles as a demurrer, all averments of fact properly pleaded must be taken as true, or as admitted, unless their falsity is apparent from the record. Id. Judgment on the pleadings may only be granted where no material facts are in dispute and the case is free from doubt so that a trial would clearly be a fruitless exercise. Id., citing Toner v. Nationwide Insurance Co., 415 Pa. Super. 617, 620, 610 A.2d 53, 55 (1992).

With the above standard in mind, we turn to the issue of the failure of plaintiff to attach verification to the complaint. Pa.R.C.P. 1024 states,

“(a) Every pleading containing an averment of fact not appearing of record in the action or containing a denial of fact shall state that the averment or denial is true upon the signer’s personal knowledge or information and belief and shall be verified. The signer need not aver the source of the information or expectation of ability to prove the averment or denial at the trial. A pleading may be verified upon personal knowledge as to a part and upon information and belief as to the remainder.

“(b) If a pleading contains averments which are inconsistent in fact, the verification shall state that the signer has been unable after reasonable investigation to ascertain which of the inconsistent averments, specifying them, are true but that the signer has knowledge or information sufficient to form a belief that one of them is true.

“(c) The verification shall be made by one or more of the parties filing the pleading unless all the parties (1) lack sufficient knowledge or information, or (2) are outside the jurisdiction of the court and the verification of none of them can be obtained within the time allowed for filing the pleading. In such cases, the verification may be made by any person having sufficient knowledge or information and belief and shall set forth the source of the person’s information as to matters not stated upon his or her own knowledge and the reason why the verification is not made by a party.”

Defendant and Kasaks argue that without the verification the complaint is nothing and is a nullity. We note that Goodrich-Amram states, “the requirement of a verification is not waivable because without it a pleading is mere narration, and amounts to nothing.” Atlantic Credit and Finance Inc. v. Giuliana, 829 A.2d 340, 344 (Pa. Super. 2003) (citing Goodrich-Amram 2d § 1024(a): 1). However, in Pennsylvania, amendments are allowed with great liberality at any stage of the case unless they violate the law, i.e., by introducing a new cause of action after the statute of limitations had run or prejudicing the rights of opposing parties. Miners Savings Bank of Pittston v. Naylor, 342 Pa. 273, 279, 20 A.2d 287, 291 (1941).

Instantly, we note that the complaint was filed without a verification, however, plaintiff filed a praecipe to attach verification to complaint on June 30, 2004. Although the defendant and Kasaks argue that we can dispose of this matter by a motion for judgment on the pleadings, we believe that the proper procedure would be to file preliminary objections. We find that Rule 1032 is relevant here. Pa.R.C.P. 1032(a) states, in pertinent part, “a party waives all defenses and objections which are not presented either by preliminary objection, answer or reply, except a defense which is not required to be pleaded under Rule 1030(b),... and any other nonwaivable defense or objection.” In the instant matter, we find that the failure to file an objection for failure of plaintiff to conform to law or rule of court, i.e., lack of verification, constitutes a waiver of the issue. The fact that plaintiff filed a praecipe to attach the verification to the complaint makes the issue moot. Moreover, Goodrich-Amram 2d states, “[a] defective verification must be attacked promptly by preliminary objection. Such an error cannot be first raised in a brief in support of some other objection. If the party affected does not object to the defects in a verification, the objection is waived. A court should not raise the defect sua sponte.” Goodrich-Amram 2d §1024(a):6 Wests, 2001. Hence, we deny defendant and Kasaks’ motion for judgment on the pleadings on this issue.

We find from the facts in this case that the defendant and Kasaks were properly served with the complaint, and that the matter was commenced as a wrongful death action. Plaintiffs filed their action within the statute of limitations and neither defendant nor Kasaks have demonstrated any prejudice by the attachment of the verification to the complaint. We are not persuaded by their arguments. Moreover, as stated above, we believe that the proper procedure for challenging the lack of a verification attached to the complaint was by means of preliminary objections. The Superior Court has described an incorrect verification as being a “de minimis technical” nature which does not prejudice the substantial rights of the defendant. Lewis v. Erie Insurance Exchange, 281 Pa. Super. 193, 199, 421 A.2d 1214, 1217 (1980). We believe therefore that the defendant and Kasaks have not been prejudiced by the attachment of the verification to plaintiff’s complaint. We also believe the issue has been waived by defendant and Kasaks’ failure to file preliminary objections. Although there was no verification on plaintiff’s complaint at the time of initial filing, the issue has been waived and we will not strike the plaintiff’s praecipe to attach verification to complaint.

Next we consider the issue of whether the complaint was properly pled by a proper party. Pa.R.C.P. 2202 states,

“(a) Except as otherwise provided in clause (b) of this rule, an action for wrongful death shall be brought only by the personal representative of the decedent for the benefit of those persons entitled by law to recover damages for such wrongful death.

“(b) If no action for wrongful death has been brought within six months after the death of the decedent, the action may be brought by the personal representative or by any person entitled by law to recover damages in such action as trustee ad litem on behalf of all persons entitled to share in the damages.

“(c) While an action is pending it shall operate as a bar against the bringing of any other action for such wrongful death.”

Based upon the language contained in Rule 2202, it is clear that the plaintiff as designated in the caption is not the proper party. However, Rule 2202 is a procedural rule which provides how a wrongful death action is commenced. Usner v. Duersmith, 346 Pa. 494, 496, 31 A.2d 149, 150 (1943). The rules are to be interpreted with common sense to carry out the purposes for which they were enacted. Id. Instantly, the parents of the decedent commenced this action by complaint. The parents have a right to recover for wrongful death of their child. Id. “The purpose of the wrongful death statute is to compensate certain of a decedent’s survivors for pecuniary losses they have sustained as a result of a decedent’s death.” Sedia v. Diggs, 42 D.&C.3d 307, 309-10 (Bucks Cty. 1986). In Usner, the Pennsylvania Supreme Court granted the plaintiff leave to amend the caption to conform to Rule 2022, even after the statute of limitations had run. We find the error is purely technical in nature and we will allow plaintiff to amend the caption to name the proper party pursuant to Rule 2022. Further, we do not believe that a motion for judgment on the pleadings was the proper vehicle to object to the improper party. We believe that the proper procedure would be to file preliminary objections. As we stated above, no prejudice was set forth by any of the opposing parties and we do not believe that there was any prejudice to any party. Hence, we find that there are material facts in dispute in this matter and we deny defendant and Kasaks’ motion for judgment on the pleadings on this issue.

Accordingly, based upon the foregoing, we enter the following:

ORDER

And now, August 11,2004, upon consideration of the defendant and Kasaks’ motions for judgment on the pleadings and defendant’s motion to strike plaintiff’s praecipe to attach verification to complaint and plaintiff’s responses thereto, the defendant and Kasaks’ motions for judgment on the pleadings and defendant’s motion to strike plaintiff’s praecipe to attach verification to complaint are hereby denied.


author: PEREZOUS, J.,

text:
    Imhoff v. Pep Boys

      C.P. of Lancaster County,
    no. CI-04-07381.

      Thomas A. Dittoe, for plaintiff.

      Michael L. Banks and Michael E. Dash Jr., for defendant.
    February 9, 2005
   PEREZOUS, J.,

This matter is before the court on the preliminary objections and petition to compel arbitration filed by the defendant, Pep Boys— Manny, Moe and Jack, against the complaint of the plaintiff, Richard Imhoff Jr. Specifically, defendant contends that the plaintiff’s complaint should be dismissed because a mutual agreement to arbitrate claims signed by the plaintiff and defendant requires the present claim to be submitted to arbitration. For the reasons that follow, this court sustains the defendant’s preliminary objections, and grants the petition to compel arbitration.

This case arises from events relating to the termination of plaintiff’s employment. Plaintiff was employed as a service manager at defendant’s store located at 2080 Lincoln Highway East, Lancaster, Pennsylvania. It is alleged that defendant discharged the plaintiff in November 2001, because he had engaged in work-related misconduct. Specifically, he claims that an investigation conducted by the defendant revealed that he failed to pay for work performed on his vehicle, took store inventory for his personal use, and used money taken from the cash register to purchase lunches for himself and others. It is also alleged that the investigation showed that the plaintiff allowed others to engage in similar misconduct. Consequently, it is alleged that this activity resulted in the plaintiff’s discharge on November 7, 2001.

On the same day that the plaintiff was informed that his services were no longer required, he received a telephone call from the East Lampeter Township Police Department requesting him to come to the station for questioning regarding Pep Boys. Several weeks after speaking with the police, charges of unlawlul taking and criminal conspiracy were filed against the plaintiff. In March 2003, plaintiff’s trial was held in the Court of Common Pleas of Lancaster County. The jury found the plaintiff not guilty of the charges.

On or about August 5,2004, plaintiff filed a complaint against the defendant in the Court of Common Pleas of Lancaster County. The basis of the complaint is the defendant’s alleged malicious prosecution of plaintiff arising out of the investigation conducted by the defendant and the subsequent proceedings against him. After defendant received service of process in this action, its counsel contacted plaintiff’s attorney to advise him of the agreement to arbitrate and to request the plaintiff to dismiss the complaint and proceed to arbitration. Defendant was then informed that plaintiff would not agree to proceed to arbitration voluntarily. Subsequently, defendant filed preliminary objections and a petition to compel arbitration as plaintiff and defendant had signed a mutual agreement to arbitrate claims. In response, plaintiff filed an answer to the defendant’s preliminary objections and petition to compel arbitration. Both parties filed briefs supporting their respective positions.

When the plaintiff began his final period of employment with the defendant in July 2000, he executed a mutual agreement to arbitrate claims with the defendant. The agreement provides, in pertinent part:

“The company and I mutually consent to the resolution by arbitration of all claims or controversies (‘claims’), past, present or future, whether or not arising out of my application for employment, assignment/employment, or the termination of my assignment/employment that the company may have against me or that I may have against ... the company.” Defendant’s exhibit 2(B) at p. 1.

It further states, “[t]he claims covered by this agreement include, but are not limited to ... tort claims.” Id. Additionally, the parties agreed “that neither [the plaintiff nor the defendant] shall initiate or prosecute any lawsuit ... in any way related to any claim covered by this agreement.” Id. The agreement also acknowledges that the plaintiff “anticipate^] gaining the benefits of a speedy, impartial, final and binding dispute resolution procedure.” Id.

The Pennsylvania Rules of Civil Procedure provide that preliminary objections may be filed based upon an agreement for alternative dispute resolution. Pa.R.C.P. 1028(a)(6). The rules also note that “[a]n agreement to arbitrate may be asserted by preliminary objection or by petition to compel arbitration pursuant to the Uniform Arbitration Act, or the common law.” Id. (citations omitted) Under the Pennsylvania Uniform Arbitration Act, “[a] written agreement to subject any existing controversy to arbitration or a provision in a written agreement to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity relating to the validity, enforceability or revocation of any contract.” 42 Pa.C.S. §7303.

Once a party makes a showing that such an agreement exists and that the opposing party has refused to arbitrate, “the court shall order the parties to proceed with arbitration.” 42 Pa.C.S. §7304. Accordingly, the defendant requests that the court order the plaintiff to submit to arbitration pursuant to the agreement.

As a matter of public policy, Pennsylvania courts “strongly favor the settlement of disputes by arbitration.” Smith v. Cumberland Group Ltd., 455 Pa. Super. 276, 283, 687 A.2d 1167, 1171 (1997). E.g., Langston v. National Media Corp., 420 Pa. Super. 611, 616, 617 A.2d 354, 356 (1992); The Children’s Hospital of Philadelphia v. American Arbitration Association, 231 Pa. Super. 230, 234, 331 A.2d 848, 850 (1974). Courts should make every reasonable effort to favor such agreements when parties agree to arbitrate in a clear and unmistakable manner. E.g., Smith, 455 Pa. Super. at 283, 687 A.2d at 1171; Hassler v. Columbia Gas Transmission Corp., 318 Pa. Super. 302, 307, 464 A.2d 1354, 1357 (1983). “When one party to an agreement seeks to prevent another from proceeding to arbitration, judicial inquiry is limited to determining (1) whether a valid agreement to arbitrate exists between the parties and, if so, (2) whether the dispute involved is within the scope of the arbitration provision.” Smith, 455 Pa. Super. at 283, 687 A.2d at 1171; Midomo Co. Inc. v. Presbyterian Housing Development Co, 739 A.2d 180, 186 (Pa. Super. 1999); Messa v. State Farm Insurance Co., 433 Pa. Super. 594, 597, 641 A.2d 1167, 1168 (1994). “If a valid arbitration agreement exists ... and [the] claim is within the scope of the agreement, the controversy must be submitted to arbitration.” Id. at 600, 641 A.2d at 1170.

In the present case, a valid agreement to arbitrate exists between the parties. In 2000, plaintiff and defendant entered into an agreement to arbitrate any claims which would arise between them. This agreement can properly be characterized as an adhesion contract. “An adhesion contract is defined as a ‘ [standard form contract prepared by one party, to be signed by the party in a weaker position . . . who has little choice about the terms.’” Robson v. EMC Insurance Companies, 785 A.2d 507, 510 (Pa. Super. 2001) (quoting Black’s Law Dictionary (7th ed. 1999)). However, a “finding that a contract is one of adhesion does not require that the court find the contract unconscionable.” Lytle v. Citifinancial Services Inc., 810 A.2d 643, 658 (Pa. Super. 2002).

As the Superior Court has stated, “[t]he test of ‘un-conscionability’ is two-fold. First, one of the parties ... must lack a ‘meaningful choice’ about whether to accept the provision in question. Second, the challenged provision must ‘unreasonably favor’ the other party to the contract.” Koval v. Liberty Mutual Insurance Co., 366 Pa. Super. 415, 423-24, 531 A.2d 487, 491 (1987). Thus, even if it is assumed that one party lacks a meaningful choice in the matter, it still must be determined whether the provision at issue unreasonably favors the other party. See id. at 424, 531 A.2d at 491.

Here, the provision at issue does not unreasonably favor the defendant. The plaintiff cites to a provision in the agreement which provides for arbitration of all claims between the plaintiff and the defendant “whether or not arising out of my application of employment, assignment/ employment, or termination of my assignment/employment.” Plaintiff’s brief at 3. He claims that this provision unreasonably favors the defendant “as it includes claims that are not even related to plaintiff’s employment.” Id. Then, he offers a vague citation to Lytle to support his statement.

Lytle, however, dealt with “whether an arbitration provision in a consumer contract which reserve [d] a right of access to the courts only for the merchant [was] voidable on the basis of unconscionability.” Lytle, 810 A.2d at 662. In its decision, the court discussed several other decisions that dealt with the unconscionability of pro visions that reserved the drafter’s right to proceed in a judicial forum, while, at the same time, prohibiting the other party’s access to the courts. Id. at 662-64. Those courts found such provisions to be unconscionable. Therefore, Lytle held that “under Pennsvlvania law, the reservation by the [drafter] of access to the courts for itself to the exclusion of the [other party] creates a presumption of unconscionability.” Id. at 665.

In his brief, the plaintiff states that the provision in the agreement which calls for the arbitration of claims that are not related to plaintiff’s employment, unreasonably favors the defendant. Nevertheless, he fails to support this statement with any persuasive argument or pertinent case law. Unlike Lytle, which dealt with the reservation of access to the courts in favor of the drafter to the exclusion of the other party, this agreement calls for both parties to arbitrate any claims which may arise between them. As such, the parties are equally situated under the provisions of the agreement. Consequently, the plaintiff has not persuaded this court that the agreement unreasonably favors the defendant.

It is important to note that in Zak v. Prudential Property and Casualty Insurance Co., 713 A.2d 681 (Pa. Super. 1998), the appellee argued that a clause in an arbitration agreement was fair because either party could appeal an award which exceeded a certain amount. Id. at 684. On the face of that agreement, it appeared that both parties possessed equal rights. Nevertheless, the court found that the clause was unconscionable. Id. The court recognized the reality of the situation, and stated that “[i]t allows the insurance company [the drafter] the unfettered right to a trial whenever an award is made in favor of the claimant or insured [the other party] while a losing claimant is bound by his award.” Id. As a result, the court found that the clause unreasonably favored the other party. Id.

Here, the arbitration provision at issue does not present the same threats to due process, equal protection, justice and fair play that were present in Zak. It merely calls for the arbitration of any claims which may arise between the plaintiff and defendant, regardless of who institutes the action. No party possesses more rights than the other. As such, this court cannot say that the agreement unreasonably favors the defendant. Therefore, the agreement is valid.

Next, this court must consider if the underlying dispute is within the scope of the provisions of the agreement. As the Superior Court has stated, “when parties have agreed to arbitrate in a clear and unmistakable manner, eveiy reasonable effort should be made to favor the agreement unless it may be said with positive assurance that the arbitration clause involved is not susceptible to an interpretation that covers the asserted dispute.” E.g., Highmark Inc. v. Hospital Service Association of Northeastern Pa., 785 A.2d 93, 98 (Pa. Super. 2001); Midomo, 739 A.2d at 190. With this standard in mind, then, this court must determine whether plaintiff’s claim falls within the scope of the agreement.

The agreement covers all claims that might arise between the parties, with limited exceptions that do not apply in the present case. The plaintiff conceded, as such, in his argument regarding the unconscionability of the agreement. As he argued, “the agreement includes all claims between the plaintiff and defendant ‘whether or not arising out of my ... employment, or termination of employment.’ ” Plaintiff’s brief at 3. In addition, the express terms of the agreement contemplate “the resolution by arbitration of all claims . . . past, present or future, whether or not arising out of [plaintiff’s] . . . employment, or termination of employment.” Defendant’s exhibit 2(B) at 1. Also, the agreement expressly mentions tort claims as falling within its purview. Id.

Nevertheless, plaintiff maintains that the agreement does not apply to his claim. He contends that he was no longer employed by the defendant at the time the initial charges were brought against him. As such, he argues, the agreement is not applicable and he should not be required to submit his claim to arbitration. The agreement, however, expressly provides for the arbitration of any claims, with limited exceptions, that might arise between the parties “following [plaintiff’s]... employment with the company.” Id. Furthermore, the agreement states “that those differences may or may not be related to [plaintiff’s] . . . employment.” Id. Therefore, this court cannot say, with positive assurance, that the agreement does not cover the present situation.

Also, it does not appear to this court that plaintiff’s malicious prosecution claim relies upon the alleged “post-discharge” conduct of the defendant. In order to be liable under a theory of malicious prosecution, “[t]he defendant must have instituted proceedings against the plaintiff (1) without probable cause, (2) with malice, and (3) the proceedings must have terminated in favor of the plaintiff.” Kelley v. General Teamsters, Chauffeurs, and Helpers, Local Union 249, 518 Pa. 517, 520-21, 544 A.2d 940, 941 (1988). In the present case, law enforcement authorities prosecuted the plaintiff after his termination. The conduct alleged on behalf of the defendant, however, took place while he was employed. First, plaintiff claims that defendant conducted an internal investigation that concluded that he had stolen from the defendant. Then, defendant allegedly referred its findings to the authorities while plaintiff was employed by the defendant. Plaintiff specifically alleges, “[o]n that same day [when he was informed his services were no longer needed] plaintiff received a call from the ... police department to come to the station for questioning.” Complaint at ¶¶ 30-32. It can be deduced from these allegations that the defendant provided its findings to the police prior to the plaintiff’s termination. Assuming the facts alleged in the complaint to be true, then, the defendant instituted the proceedings against the plaintiff while he still worked for the company. Therefore, the plaintiff’s malicious prosecution claim falls within the scope of the agreement.

Accordingly, the court enters the following:

ORDER

And now, February 9,2005, upon consideration of the preliminary objections and petition to compel arbitration filed by defendant, Pep Boys — Manny, Moe and Jack, against the complaint of the plaintiff, Richard Imhoff Jr., together with the briefs and supporting papers filed by the parties, it is hereby ordered that the preliminary objections are sustained and the petition to compel arbitration is granted. The plaintiff must arbitrate his claim under the provisions as set forth in the mutual agreement to arbitrate claims.

      . In the present case, the written agreement to arbitrate does not expressly refer to the Pennsylvania Uniform Arbitration Act. As such, sections 7303 and 7304 are not directly applicable. See Midomo Co. Inc. v. Presbyterian Housing Development Co., 739 A.2d 180, 153 (Pa. Super. 1999). Nevertheless, sections 7303 and 7304 are applicable through section 7342 of the Act, referring to common-law arbitration. 42 Pa.C.S. §7342(a). Section 7342 provides: “[t]he following provisions of subchapter A (relating to statutoiy arbitration) shall be applicable to [common-law arbitration]: Section 7303 (relating to validity of agreement to arbitrate). Section 7304 (relating to court proceedings to compel or stay arbitration).” Id.