author: CERCONE, Judge.

text:
    600 A.2d 965
    Judith Oliver JOHNSON, Individually and as Administratrix of the Estate of John Van Wirt Johnson, Appellant, v. William JOHNSON, Steck Johnson, Jay Schultz, Avery Schultz, L. Jose Gonzales, Eric Schultz, Richard Johnson, Edward Johnson, Walter Benner, Edwin Johnson, Peter Johnson, David Johnson, Donald Johnson and David Schultz.
    Superior Court of Pennsylvania.
    Argued Sept. 17, 1991.
    Filed Dec. 13, 1991.

      Terry W. Light, Lewisburg, for appellant.
    John E. Person, III, Williamsport, for William & Steck Johnson, appellees.
    Joey A. Storaska, Sunbury, for W. Benner, appellee.
    Jeffrey H. Quinn, Yardley, for Peter & David Johnson, appellees.
    Robert P. Wilkison, Sunbury, for Edwin Johnson, appellee.
    Michael E. Koll, State College, for Avery Schultz, appellee.

      Before POPOVICH, HUDOCK and CERCONE, JJ.
   CERCONE, Judge.

This is an appeal from the order of the Court of Common Pleas of Union County dated November 30, 1990, granting six various motions for summary judgment. This timely appeal followed. We affirm.

This action arose from a tragic hunting accident involving appellant’s decedent, John Van Wirt Johnson, a/k/a Van Johnson. Decedent and appellees were members of the Paddy Mountain Boys Rod and Hunting Club. The club members gathered on December 1, 1985 to prepare for the annual hunting season which began the following day. To this end, the senior members of the club conducted a safety meeting. The following day, the members engaged in hunting activities without incident.

On December 3, 1985, the group once again conducted their hunting expedition. The morning hunt began with a group watch for deer. Later in the afternoon, the appellees, along with Van Johnson, formed as a group and engaged in a technique known as a “drive.” As the trial judge explained this term:

The purpose of the drive was to herd deer toward the watchers, members of the club who would be posted at the likely flight path of decamping deer. The drivers, other members of the club, would walk regimentally toward the watchers, a drill which presumably would encourage the deer to depart in the direction of the watchers.

Lower Court Opinion 11/30/90 at 2. Lyon Johnson, minor son of defendant Edward Johnson and nephew of the deceased, also attended and was selected to be a driver. In the process of conducting the drive, young Lyon fired two shots. One of these shots fatally wounded the decedent while both were attempting to drive the deer.

Appellant Judith Oliver Johnson filed the instant action in trespass, individually and as administratrix of the estate of Van Johnson. She sought judgment against the appellees, individually, for failing to adequately control and supervise Lyon Johnson. She named as defendants William Johnson, William Steck Johnson, Jr., Jay Schultz, Avery Schultz, L. Jose Gonzales, Eric Schultz, Richard Johnson, Edward Johnson, Walter Benner, Edwin Johnson, Peter Johnson, David Johnson, Donald Johnson and David Schultz. These defendants/appellees were the members of the hunting club present on the drive which is the subject of controversy in this litigation. No lawsuit was filed against Lyon Johnson for shooting the decedent.

The trial judge initially granted preliminary objections demanding that plaintiff file a more specific complaint. After plaintiff filed her amended complaint, the trial judge denied preliminary objections and the defendants answered and filed new matter. After conducting extensive discovery, defendants filed six motions for summary judgment alleging that they owed no duty to protect Van Johnson from harm or to control the actions of Lyon Johnson. The lower court agreed finding that, with the exception of Edward Johnson, Lyon’s father, no defendant owed a duty to plaintiff’s decedent to protect him from the actions of Lyon Johnson. The trial judge dismissed appellant’s complaint as against all co-defendants except Edward Johnson. The trial court reasoned that Edward Johnson had a duty to control the actions of his child. Restatement (Second) of Torts § 316 (a parent owes a duty to control the conduct of his child). Accordingly, he allowed appellant’s cause of action against the father to proceed to trial.

On appeal, plaintiff proffers one question for our consideration:

should summary judgment have been entered in favor of all moving defendants where the moving parties support their motions with deposition testimony of themselves and other parties?

While we agree with appellant that the testimony given in support of each motion for summary judgment is inadequate to prove absence of material fact, we affirm the order of the trial court granting summary judgment because appellant has not alleged a cause of action upon which relief can be granted.

A motion for summary judgment may properly be granted only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Pa.R.Civ.P. Rule 1035(b)____ In passing upon a motion for summary judgment the court must examine the record in a light most favorable to the nonmoving party____ It is not part of the court’s function to decide issues of fact but solely to determine whether there is an issue of fact to be tried____ Any doubt must be resolved against the moving party____ The court, in ruling on a motion for summary judgment, must ignore the controverted facts contained in the pleadings____ The court must restrict its review to the material authorized by Rule 1035 to be filed in support of and in opposition to the motion for summary judgment and only those allegations in the pleadings that are uncontroverted.

Samarin v. GAF Corp., 391 Pa.Super. 340, 346-47, 571 A.2d 398, 401-02 (1989) quoting Washington Federal Savings and Loan Association v. Stein, 357 Pa.Super. 286, 515 A.2d 980 (1986) (citations omitted). We will overturn a trial court’s entry of summary judgment only if there has been an error of law or a clear abuse of discretion. McCain v. Pennbank, 379 Pa.Super. 313, 318, 549 A.2d 1311, 1313 (1988). Furthermore, failure to raise the issue of inadequate support of a motion for summary judgment does not result in waiver of that issue since the trial judge has a duty to deny such motions even if the opposing party has not responded. Garcia v. Savage, 402 Pa.Super. 324, 328, 586 A.2d 1375, 1377 (1991).

With our standard of review in mind, we turn to appellant’s argument in support of reversal. Appellant maintains that the six various motions for summary judgment were inadequately supported by deposition testimony contrary to the requirements set forth by our supreme court in Nanty-Glo Borough v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932).

In Nanty-Glo, the plaintiff, a municipality, sued a surety company which issued a bond on its tax collector for amounts the tax collector misappropriated. At trial, the plaintiff introduced the testimony of the tax collector himself and a county clerk who testified as to the notice given the surety bond holder. The surety company offered no evidence. The trial court then granted the plaintiff’s motion for binding instructions and a directed verdict since the evidence was uncontradicted. Our supreme court reversed the decision of the trial court holding that although the evidence was uncontradicted, it was the province of the jury to consider the credibility of the witness. Id., 309 Pa. at 237-38, 163 A. at 524.

Although Nanty-Glo was decided in the context of a directed verdict, our courts have frequently applied its holding to motions for summary judgment. Garcia, 402 Pa.Super. at 329-30, 586 A.2d at 1377-78. As our distinguished Judge Beck summarized:

[T]he general rule that flows from Nanty-Glo is that summary judgment may not be had where the moving party relies exclusively upon oral testimony, either through testimonial affidavits or deposition testimony, to establish the absence of a genuine issue of material fact.

Id., 402 Pa.Superior Ct. at 330, 586 A.2d at 1378.

Our courts, however, have developed an exception to the Nanty-Glo rule where the moving party supports his motion for summary judgment with admissions of the opposing party or his witnesses. Id. 402 Pa.Super. at 330 n. 3, 586 A.2d at 1378 n. 3; Askew by Askew v. Zeller, 361 Pa.Super. 35, 43, 521 A.2d 459, 464 (1987). In Askew, the plaintiffs husband was seriously injured when his motorcycle was hit by a vehicle turning into his lane. Defendant Zeller turned into Askew’s lane when co-defendant Olsson waved him to turn. Plaintiff therefore contended that Olsson acted negligently in waving Zeller to turn. Olsson filed a motion for summary judgment relying on Zeller’s deposition testimony whereby he stated that he did not rely on Olsson’s signal when he turned. The trial court granted summary judgment in favor of Olsson. Id,., 361 Pa.Superior Ct. at 37, 521 A.2d at 460-61. A panel of this court affirmed the decision holding that “the uncontradicted deposition testimony of a co-defendant, who is an adverse party, and equally liable to the plaintiff, is a sound basis for summary judgment.” Id., 361 Pa.Superior Ct. at 43, 521 A.2d at 464 (emphasis added), citing with approval Reading Company v. United States Fidelity and Guaranty Co., 64 Pa.D. & C.2d 476 (Phila.1973) affirmed per curiam, 228 Pa.Super. 747, 311 A.2d 335 (1973).

In each of the six motions for summary judgment filed in the instant case, the moving defendants relied upon testimony from other co-defendants. Before the parties may properly rely on such testimony, however, we must determine that these co-defendants were adverse parties. After careful consideration of the record before us, we have concluded that these co-defendants were not adverse.

Defendant/appellee Walter Benner filed a motion for summary judgment arguing that there was no legal duty imposed upon him to control the actions of Lyon Johnson. In support of this theory, Benner relies on appellant’s responses to request for admissions, his own deposition testimony, and that of Lyon Johnson, Richard Johnson, Edwin Johnson and Horace Schultz. Benner testified that he was part of the drive but did not maintain any control over Lyon Johnson. Richard Johnson testified that the decedent, Van Johnson, assumed responsibility for young Lyon.

Co-defendants Jay Schultz, Jose Gonzales and Richard Johnson argued that they owed no duty to the decedent to control Lyon Johnson’s conduct during the hunt, but proffered no evidence in support of their motion. Instead, they relied on the witness testimony proffered by Walter Benner in his motion for summary judgment. Co-defendants David and Peter Johnson filed their motion arguing that neither of them were involved in planning or conducting the drive. For this proposition, they relied on the testimony of Lyon Johnson. They also relied on the testimony of co-defendants Richard Johnson and Edwin Johnson who stated that Van Johnson had assumed responsibility over Lyon during the drive.

In his motion for summary judgment, defendant Edwin Johnson argued that he had no duty to control young Lyon Johnson’s conduct during the drive. This particular defendant produced no evidence to support his motion. Defendants Avery Schultz, David Schultz and Donald Johnson filed a joint motion for summary judgment. Through the deposition testimony of co-defendants Richard Johnson, Jose Gonzales, Edwin Johnson, Eric Schultz, and Lyon Johnson, they maintained that Van Johnson was the only person to assert control over Lyon Johnson. Defendants Avery Schultz and William Steck Johnson testified that they were away from the drivers and therefore asserted no control over Lyon Johnson. Finally, co-defendants William S. Johnson and William Steck Johnson, Jr. argued that they had no duty to protect Van Johnson from the acts of Lyon Johnson. To this end, they also incorporate the motion for summary judgment filed by Walter Benner.

The evidence appellees proffered in support of summary judgment is insufficient to support findings that no material fact was at issue. Each party relies on the testimony of other co-defendants as well as his own testimony to support the common argument that he owed no duty to the decedent. These are not the types of adverse parties which this court has found can overcome application of the Nanty-Glo rule. Further, no defendant is antagonistic to one another. No defendant has exculpated himself from liability by demonstrating that another defendant, in fact, maintained a duty to the decedent. Instead, the parties either allege that either no duty was owed to protect Van Johnson, or that Van Johnson assumed that duty himself. In fact, certain parties to the action rely on the motions filed by other defendants to the action to support their own position. Certainly such conduct is not indicative of the co-defendants being adverse.

We are also constrained to find that the mere fact that certain of the appellees have filed cross-claims against the other defendants is not dispositive of whether they are adverse parties. In Askew, supra, this court held that failure to file cross-complaints between co-defendants did not compel the co-defendants to be treated as non-adverse parties. Askew, 361 Pa.Super. at 43, 521 A.2d at 464. In order to rely on the testimony of co-defendants, the moving party must demonstrate that there is actual adversity among the defendants, so as to make any testimony by the co-defendant “unconditional surrender.” Garcia, 402 Pa.Super. at 330 n. 3, 586 A.2d at 1378 n. 3. We therefore find that the Nanty-Glo rule applies in this instance and precludes the lower court from relying on this testimony to find no issue of material fact.

Our analysis of this problem must not end here, however, for it is axiomatic that we may affirm the summary judgment if it was proper for any reason. Mucowski v. Clark, 404 Pa.Super. 197, 201, 590 A.2d 348, 350 (1991); Jones v. P.M.A. Ins. Co., 343 Pa.Super. 411, 413 n. 1, 495 A.2d 203, 204 n. 1 (1985) (appellate court may affirm action of trial court for reasons other than those given by trial court in support of order).

In her brief opposing summary judgment, plaintiff/appellant advanced two theories of relief: (1) that each member of the hunting party had a duty to ascertain whether each hunter was physically and mentally fit to engage in the hunt, and (2) that each member had a duty to withdraw any hunter from the hunt whom he knew or should have known was unfit or was potentially unfit to conduct a safe hunt. In support of these legal theories, the appellant argued that Restatement (Second) Torts § 308 should be implied to impose a duty on each hunter to ascertain whether their fellow hunters are mentally and physically able to safely participate in the hunt. Appellant also argued that the structure of the Paddy Mountain Boys Rod and Gun Club imposed a special relationship cognizable under Restatement (Second) Torts § 315 to impose liability on each member of the club for failure to constrain the actions of Lyon Johnson. For the following reasons, we find appellant’s contentions meritless.

Section 308 of the restatement discusses the principle of negligent entrustment in the following terms:

It is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others.

Restatement (Second) of Torts § 308 (1965); see Burkhart v. Brockway Glass Co., 352 Pa.Super. 204, 507 A.2d 844 (1986), allocatur denied, 514 Pa. 615, 521 A.2d 930 (1987). This definition of negligent entrustment is most commonly applied in cases where a parent allows a child to utilize a dangerous weapon or an automobile, and an injury results. See id.

While section 308 advances a general principle regarding the type of conduct which will support a finding of negligence, appellant must still establish that the appellees owed a duty to her decedent which is recognized at law. Restatement (Second) of Torts, Scope Note Chapter 12, Topic 4 (1965); Cf. Moore v. Commonwealth Department of Justice, 114 Pa.Commw. 56, 538 A.2d 111 (1988) (Restatement (Second) of Torts § 302 does not in itself create a duty rather it defines what acts may constitute negligence, assuming that a duty is independently established).

In the case sub judice, appellant suggests that we find that appellees owed a duty to Van Johnson to protect him from potential harm caused by any member of the hunting group. We disagree. Appellant is not alleging that appellees acted in a negligent manner. Rather she alleges that they failed to act when they were obligated to do so. The activity of hunting, in itself, cannot suffice to impose a duty upon each hunter to protect others solely because it is inherently dangerous. The mere association of members in this instance is also insufficient to impose liability.

Moreover, even if we were to assume that a duty existed toward plaintiffs decedent, we would still be compelled to find that plaintiff has failed to prove her claim under section 308. The Comments to section 308 enunciate a two-part test to apply in determining whether the third person is under the control of the actor and state:

The words “under the control of the actor” are used to indicate that the third person is entitled to possess or use the thing or engage in the activity only by the consent of the actor, and that the actor has reason to believe that by withholding consent he can prevent the third person from using the thing or engaging in the activity.

Restatement (Second) of Torts § 308 (1965), Comment a (emphasis added). In support of her claim under section 308, appellant proffers the alleged admission of appellee Richard Johnson that he considered taking Lyon Johnson’s gun away from him because he was acting erratically. Even when taken in the light most favorable to plaintiff, this admission merely tends to prove one part of the two part test enunciated in the comments to Restatement (Second) of Torts § 308, supra at p. 970. The proffered statement merely indicates that Richard Johnson had reason to believe that he could prevent Lyon Johnson from hunting. The record is devoid of any indication that Richard Johnson was in control of Lyon Johnson’s gun as contemplated by section 308 of the Restatement. Thus, neither Richard Johnson nor any other member of the hunting club was in the position of sole arbiter, in the sense of section 308, of whether Lyon Johnson was permitted to engage in hunting activities or possess a gun for purposes of hunting. As the lower court properly found, young Lyon’s father was the only person with this capacity. The trial judge accordingly refused to dismiss Lyon’s father, Edward Johnson, from this suit.

Appellant also seeks relief under Restatement (Second) of Torts § 315 (1965). Section 315 provides:

There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless
(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or
(b) a special relation exists between the actor and the other which gives to the other a right to protection.

Restatement (Second) Torts § 315 (1965). Comment c to section 315 states:

The relations between the actor and a third person which require the actor to control the third person’s conduct are stated in §§ 316-319. The relations between the actor to control the conduct of third persons for the protection of the other are stated in §§ 314A and 320.

Our review of the pertinent sections of the Restatement imposes no duty on the appellees to control Lyon Johnson or protect Van Johnson from harm. Sections 316-319 do not impose duties on the appellees to control Lyon Johnson’s conduct. Furthermore, sections 314A and 320, which impose duties to protect certain persons, have no application in the instant matter. Therefore, appellant cannot maintain a cause of action under Restatement (Second) Torts § 315.

Finally, we take note of the allegations in appellant’s complaint which mirror the language of pertinent sections of the Pennsylvania Games and Wildlife Code which state:

Unlawful acts concerning licenses

(a) General rule. — Except as otherwise provided in this title, it is unlawful for any person to:
(8) Use firearms of any kind ... when hunting or trapping any game or wildlife or attempting to hunt or trap any game or wildlife if between 12 and 14 years of age, unless accompanied by a parent or a person 18 years of age or older serving in loco parentis or as guardian or some other family member 18 years of age or older.

34 Pa.C.S.A. § 2711. By its terms, the statute imposes liability on the offender, which in this case is the minor, Lyon Johnson. While section 2711 serves the purpose of ensuring that minors are being monitored, we cannot find that this section imposes a duty on a minor’s colleagues to continuously monitor his activities absent their voluntary assumption of such a duty. At no time has appellant alleged that the other hunters voluntarily assumed a duty to control Lyon Johnson. Therefore, section 2711 affords appellant no relief.

Order affirmed.

      . The claim against Edward Johnson is not before us in this appeal.

      . Certain defendants have argued that appellant has waived the Nanty-Glo argument, addressed supra, for failure to raise it in the lower court. Based on our standard of review, however, we find the issue properly before us.

      . The failure to support a motion for summary judgment with admissions or deposition testimony is clearly insufficient to demonstrate absence of material fact.

      . All parties refer to appellant’s answers to defendant Edwin Johnson’s request for admissions to support their motions for summary judgment. We have reviewed these answers and find no material admissions exculpating the defendants from any alleged duty owed to the decedent. Appellant’s admissions relate only to the joint activities of the Paddy Mountain Boys Rod and Hunting Club.

      . Contrary to appellees’ contentions, section 308 does not impose vicarious liability upon the members of the hunting club. Section 308 imposes liability on a defendant because of his own acts in relation to instruments or activities under his control. Mendola et al. v. Sambol, 166 Pa.Super. 351, 353, 71 A.2d 827, 828 (1950).

      . Appellant directs us to the following deposition testimony to support her allegation:
      Q (by Attorney Charles Fonzone):
      And you go on to say that Richard Johnson then told me days after the funeral that it was the 13 year old boy’s gun. Now what are you relating to us there?
      A (by appellant):
      I don’t remember saying gun. I remember him saying that it was a thirteen year old boy.
      Q: Then the next sentence says later that Van wanted, and I imagine the word ["to”] is missing, to take the gun away because he was acting up for days. Now who said that to you?
      A: Richard.
      Q: Now Richard told you that Van wanted to take Lyon’s gun away from him?
      A: I don’t remember if he said Van wanted to or we wanted to.
      Deposition testimony of Judith Johnson at 50. This alleged statement which Mrs. Johnson attributed to appellee Richard Johnson in no way related to Lyon Johnson’s hunting ability or to his qualifications as a licensed hunter. The description of Lyon’s conduct, which is described as "acting up,” lacks the specificity necessary to cast doubt on Lyon’s competence to hunt.

      . Section 316 imposes a duty on a parent to control the conduct of his child. This is the duty which the court imposed on Edward Johnson by refusing to dismiss this suit against him. Section 317 imposes a duty for an employer to control the conduct of his servants. Section 318 promulgates a duty on landowners to control the conduct of licensees and section 319 creates a duty to control the actions of a third person with dangerous propensities when the actor has taken charge of the third person.
      Sections 316, 317 and 318 do not apply in this instance. Further, the Pennsylvania courts have traditionally applied section 319 to cases involving mentally ill patients and prisoners. See Vattimo v. Lower Bucks County Hospital, Inc., 502 Pa. 241, 258, 465 A.2d 1231, 1240 (1983) (Nix, J. concurring and dissenting); Moore v. Commonwealth Department of Justice, supra. Again, however, there is no evidence that any of the appellees actually took charge of Lyon Johnson in order to trigger application of section 319.

      . Section 314A lists certain special relations which give rise to a duty to aid or protect third persons, including duties on common carriers, innkeepers and possessors of land. Section 320 applies to persons who take custody over another so as to impose a duty to protect that person.


source: Caselaw Access Project

author: MONTGOMERY, Judge: HUDOCK, Judge,

license: Public Domain

text:
    600 A.2d 972
    J.C. SNAVELY & SONS, INC., Appellant, v. SPRINGLAND ASSOCIATES, INC. and Charles W. Knapp, Appellees.
    Superior Court of Pennsylvania.
    Submitted July 18, 1991.
    Filed Dec. 17, 1991.

      Dale E. Lapp, Lancaster, for appellant.
    Paul K. Allison, Lancaster, for appellees.
    Before POPOVICH, HUDOCK and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

This is an appeal from the trial court’s order granting preliminary objections. The order dismissed appellant’s case for lack of in personam jurisdiction.

The sole issue before this court is whether the trial court correctly concluded that it did not have personal jurisdiction over appellee Charles W. Knapp. Appellant, J.C. Snavely & Sons, Inc., a Pennsylvania corporation with its principal place of business in Landisville, Pennsylvania, entered into an agreement to supply building materials to Springland Associates, Inc., a Delaware corporation with its principal place of business in New York, New York. Appellee, the Vice President of Springland Associates, Inc., and a resident of New York, signed as personal guarantor to a credit agreement between the companies. When evaluating the product for his employer, Mr. Knapp visited appellant’s factory in Pennsylvania two or three times. There was no evidence of further contacts between Mr. Knapp and the forum.

When a preliminary objection results in the dismissal of an action it is sustained only in those cases which are “clear and free from doubt.” Kenneth H. Oaks, Ltd. v. Josephson, 390 Pa.Super. 103, 568 A.2d 215, 216 (1989). The court must view the evidence in a light most favorable to the nonmoving party. Id.

Pennsylvania retains personal jurisdiction over nonresidents to the fullest extent permitted by the United States Constitution. 42 Pa.C.S. § 5322(b), Temtex Products Inc. v. Kramer, 330 Pa.Super 183, 479 A.2d 500 (1984). Accordingly, the sole limitations on jurisdiction are those set forth in the Due Process Clause of the Fourteenth Amendment of the United States Constitution. Id. Specifically, due process requires that the defendant have sufficient contacts with the forum such that granting jurisdiction would not offend traditional notions of fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945).

Analysis of what constitutes minimum contacts is not a formulaic process, but requires a case by case analysis. Skinner v. Flymo, Inc., 351 Pa.Super. 234, 505 A.2d 616 (1986) (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)). Random, fortuitous or attenuated contacts do not constitute the requisite minimum contacts. Id. Nor will the existence of a contract with an out of state party, alone, suffice to establish jurisdiction. Burger King Corp. v. Rudzewicz, supra. The court must consider whether the defendant should reasonably anticipate being haled into court as a result of conduct and connections with the forum state. Id. It is critical that the defendant avail himself of the privilege of conducting activities in the forum state and that it is not merely the result of unilateral activity on the part of a third person or another party. Id.

Appellant cites “two or three” visits to Pennsylvania “to view the Snavely operation and to examine the type of material Springland would be purchasing ...” as the necessary minimum contacts. Appellant’s brief at 11. This evidence does not constitute sufficient minimum contacts to establish in personam jurisdiction. Two types of in per-sonam jurisdiction must be considered. General jurisdiction exists where a defendant’s activities are substantial and continuous within the forum, regardless of the nexus to the cause of action. Skinner v. Flymo, Inc., supra. Specific jurisdiction is based upon a defendant’s acts within the forum which give rise to the cause of action. Id.

There exists no basis for a finding of general jurisdiction. Mr. Knapp’s sole contacts with Pennsylvania consist of two or three visits. Appellant’s activities within Pennsylvania do not rise to the continuous and substantial standard. See Nolt & Nolt, Inc. v. Rio Grande, Inc., 738 F.Supp. 163 (E.D.Pa.1990).

Additionally, there exists no support for a finding of specific jurisdiction. The guarantee between Mr. Knapp and appellant constitutes a separate and independent contract. Hyster Credit Corp. v. O’Neill, 582 F.Supp. 414 (E.D.Pa.1983). As noted in appellant’s brief, the personal guaranty was signed “in [Mr. Knapp’s] individual capacity.” Appellant’s brief at 10. When seeking to establish specific jurisdiction, only those contacts which relate to Mr. Knapp’s agreement with appellant are significant. Skinner v. Flymo, Inc., supra. Mr. Knapp’s contacts as an agent of Springland Associates are not attributable to him for purposes of establishing specific jurisdiction. See, e.g., Babich v. Karsnak, 364 Pa.Super. 558, 528 A.2d 649 (1987).

There exist no contacts between Mr. Knapp, as an individual, and the forum. Mr. Knapp traveled to Pennsylvania, in his capacity as an employee, to view the products his employer proposed to buy. Appellant’s cause of action with defendant arises from the guaranty signed by Mr. Knapp. Accordingly, these visits cannot be considered for purposes of establishing specific jurisdiction.

Moreover, there exists no evidence of further contacts between Mr. Knapp and Pennsylvania. The guaranty was signed in New York. No further interactions regarding this agreement occurred. Appellant cites phone , calls, mailings and invoices as evidence of contacts. These contacts were all contacts between the corporations, in reference to their agreement, and there is no indication of Mr. Knapp’s involvement in any manner.

The conclusion we reach is supported by Reverse Vending Associates v. Tomra Systems U.S., Inc., 655 F.Supp. 1122 (E.D.Pa.1987). Tomra Systems U.S., Inc., (Tomra U.S.) incorporated and located in Atlanta, Georgia, was a wholly owned subsidiary of A/S Tomra Systems (Tomra Norway), located in Asker, Norway. Tomra U.S. executed two contracts with Reverse Vending, a partnership located in Pennsylvania. However, before entering the agreement Reverse Vending requested and received a guaranty from Tomra Norway. Reverse Vending stated that there would be no agreement if the guaranty was not forthcoming. Tomra Norway signed the document in Norway and mailed it to their subsidiary in Atlanta. In turn, Tomra Systems U.S. passed the agreement on to the plaintiff. The Tomra court concluded that there were insufficient minimum contacts to exercise jurisdiction.

Noting the lack of physical contacts the Tomra court then considered whether Tomra Norway had purposefully directed its efforts towards Pennsylvania residents. A purposeful availment of the benefits arising from the forum state may constitute grounds for jurisdiction, notwithstanding the lack of physical contacts. Burger King Corp. v. Rudzewicz, supra. The analysis of this issue is similar in both Tomra and the instant case. In both cases the Pennsylvania resident sought the guaranty. There is no evidence that any phone calls, negotiations or meetings regarding the guaranty took place in Pennsylvania. Finally, as in Tomra, there is no evidence Mr. Knapp “sought to participate in benefits from the local Pennsylvania economy.” Reverse Vending Associates v. Tomra Systems, U.S., Inc., 655 F.Supp. at 1127. Accordingly, we affirm.

Order affirmed.

HUDOCK, J. files a Dissenting Opinion.

HUDOCK, Judge,

dissenting:

J.C. Snavely & Sons, Inc. (Snavely) appeals from an order of the Court of Common Pleas of Lancaster County granting Charles W. Knapp’s (Knapp) preliminary objections and dismissing its case for lack of in personam jurisdiction over Knapp. Because I believe the majority incorrectly concluded that the trial court lacked in personam jurisdiction over Knapp, I must respectfully dissent.

Snavely is a Pennsylvania corporation with its principal place of business in Landisville, Pennsylvania. Springland Associates, Inc. (Springland) is a Delaware corporation with its principal place of business in New York, New York. Knapp was the Vice President of Springland and a resident of New York. Snavely and Springland entered into an agreement whereby Snavely would supply building materials on open account to Springland. To accommodate the underlying contract between Snavely and Springland, Knapp signed, as personal guarantor, a credit agreement between Snavely (the creditor) and Springland (the principal obligor). To view Snavely’s operation and evaluate its products for his employer, Knapp visited Snavely’s factory in Pennsylvania on several occasions before signing the credit application. This action arose out of Knapp’s refusal to pay Springland’s outstanding account balance with Snavely pursuant to the guaranty Knapp signed on the credit application. Knapp contends he is not subject to Pennsylvania’s jurisdiction because he has no contacts with this forum. Snavely, on the other hand, relies on Knapp’s voluntary and purposeful assumption of a business obligation in Pennsylvania, the breach of which foreseeably resulted in litigation in this Commonwealth.

The law applicable in this situation is undisputed. Personal jurisdiction over a non-resident defendant takes one of several modern forms, e.g., statutory, general, or specific. Kegardless of the form exercised by a forum, personal jurisdiction over non-resident defendants is bounded by the due process limitations of the Fourteenth Amendment. Eastern Continuous Forms, Inc. v. Island Business Forms, Inc., 355 Pa.Super. 352, 354, 513 A.2d 466, 467 (1986). With this limitation in mind, a forum has general jurisdiction where the non-resident defendant has sufficient minimum contacts with the forum so as not to offend the traditional notions of fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1949) (non-resident company conducting systematic and continuous business activity within the forum subject to forum’s jurisdiction). Such contacts may not give rise to a particular cause of action but do make reasonably foreseeable that a non-resident defendant could expect to be haled into a forum’s courts. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). A defendant’s contacts must attain a level such that he has fair warning that his activities may subject him to the forum’s jurisdiction. Asahi Metal Industry Co., Ltd. v. Superior Court, 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987). Where a defendant purposefully avails himself of a forum or directs his activities at residents of the foreign forum, then he subjects himself to that forum’s jurisdiction, even where there are no physical contacts with the state. Skinner v. Flymo, 351 Pa.Super. 234, 242-43, 505 A.2d 616, 621 (1986) (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476, 105 S.Ct. 2174, 2184, 85 L.Ed.2d 528 (1985)).

Specific jurisdiction exists where a defendant’s activity within the forum gives rise to a particular cause of action. See MaGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957) (in action for payment of benefits, single insurance contract between non-resident and resident gave forum personal jurisdiction over nonresident insurance company). Although entering into a contract is not, without more, sufficient to establish minimum contacts, “negotiations prior to the contract, its contemplated future consequences, the terms of the contract and the parties’ actual course of dealing must be evaluated” in determining whether a non-resident defendant purposely availed itself of the privilege of acting within the foreign forum. Kenneth H. Oaks, Ltd. v. Josephson, 390 Pa.Super. 103, 106-07, 568 A.2d 215, 217 (1989) (quoting World-Wide Volkswagen, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490). For example, in Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), a single franchise agreement, solicited by non-resident defendants but negotiated, executed and performed in the forum, was a sufficient contact for specific jurisdiction over the defendant.

No far stretch of the imagination or of jurisdiction is required to include within Pennsylvania’s specific jurisdiction the piggy-back guaranty agreement between Knapp and Snavely. This Court has spoken about such interstate contractual obligations as follows:

[Pjarties who reach out beyond one state and create continuing relationships and obligations with citizens of another state are subject to regulation and sanctions in the other state for the consequences of their activities.

Oaks, Ltd., 390 Pa.Super. 103, 106, 568 A.2d 215, 217 (quoting Burger King, 471 U.S. at 472, 105 S.Ct. at 2182). The majority cites to Hyster Credit Corp. v. O’Neill, 582 F.Supp. 414 (E.D.Pa.1983) for the proposition that Knapp’s guaranty agreement is a separate and independent contract. This case is not binding authority. Furthermore, the context from which this proposition was drawn suggests that a guarantor may assume greater liability than the debtor, if the terms and conditions of the guaranty agreement so provide. The Hyster court went on to opine that a court “must determine and give effect to the intentions and language as read in light of the attendant circumstances and purposes for which the guaranty was created.” Hyster, 582 F.Supp. at 416.

In the case at bar, I consider the two agreements to be mutually dependent. Without Knapp’s guaranty, the underlying contract would not have been secured. If the underlying contract could have been entered into without security, then Knapp’s guaranty served no apparent purpose. While Knapp’s guaranty was independent in the sense that he could have taken on greater liability, its raison d’etre was to secure the sales contract between Snavely and Springland. Logically, the contacts between Snavely and Springland have some bearing on the contacts between Snavely and Knapp.

Knapp knowingly and voluntarily entered the guaranty agreement with the Pennsylvania-based Snavely company, signing in his individual capacity. The pertinent language of the guaranty provides that “The undersigned, intending to be legally bound, hereby guarantees the prompt and full payment when due of all account balances which may be outstanding from time to time with J.C. Snavely & Sons, Inc., of the business listed in the above Business Credit Application, /s/ Charles W. Knapp.” If and when account balances with Snavely were outstanding, the underlying contract would have been breached and Knapp could reasonably have expected being called into this Commonwealth to cure Springland’s default.

During the open account period of the underlying sale agreement between Snavely and Springland, Knapp was obligated to make any payments that Springland failed to make. That very contingency occurred, thereby activating Knapp’s obligation. Moreover, common sense dictates that the underlying obligation involved continued and prospective interstate business transactions between Springland in New York and Snavely in Pennsylvania. According to the undisputed pleadings, the goods provided by Snavely were manufactured in and shipped from Snavely’s operation in Pennsylvania. Invoices were sent from Pennsylvania and several payments were received from Springland in Pennsylvania.

The mailings, phone calls, and invoices which the majority dismisses as insufficient evidence of contacts between Knapp and Pennsylvania I consider vital to the main objective of Knapp’s personal ongoing harmonious relationship between buyer and seller. As long as the underlying contract was effective, Knapp’s liability as personal guarantor was on the line. Considering Knapp entered the guaranty as security for the sales agreement and with knowledge of the parties and terms involved, Knapp obviously availed himself of an opportunity to contract in Pennsylvania and subjected himself to this forum’s jurisdiction.

The majority mentions that the guaranty was signed in New York. In this Commonwealth, where the agreement was signed is not as dispositive as where the guaranty was accepted. See Watson v. Lehigh Valley Woodwork Corp., 198 F.Supp. 273, 275-76 (E.D.Pa.1961) (when acceptance is made by the guaranteed party and notice given, the place of contracting is the origin of the acceptor-guarantee’s communication). While the pleadings indicate that Knapp signed the guaranty in New York, logic dictates that the agreement would be returned to Pennsylvania for acceptance by the guarantee, Snavely. Consequently, Pennsylvania would be the situs of the contract between Knapp and Snavely and, as such, would have jurisdiction over the parties to the contract.

Relying on the case of Reverse Vending Assoc. v. Tomra Systems U.S., Inc., 655 F.Supp. 1122 (E.D.Pa.1987), the majority finds no evidence of personal jurisdiction over Knapp. While I cannot dismiss out of hand the similar scenario presented by Reverse Vending, I question its persuasive authority in light of the controlling state law cited in this dissent. See McCue v. State Employes’ Retirement Bd., 138 Pa.Cmwlth. 300, 588 A.2d 980, 984 (1991) (while decisions of lower federal courts have a persuasive authority, they are not binding on state courts). In addition, the Reverse Vending court found no evidence of the guarantor entering the forum to solicit a business obligation, i.e., no phone calls, no correspondence. Knapp, on the other hand, entered Pennsylvania for the express purpose of evaluating Snavely’s operation to ensure the underlying contract would be successful. Obviously satisfied with Snavely’s product, Knapp entered the guaranty. By doing so, he became a key participant in this interstate transaction.

This isolated guaranty contract, out of which the present cause of action arose, and the course of dealing surrounding its consummation are a sufficient basis for Pennsylvania’s exercise of specific, personal jurisdiction over the nonresident guarantor. I would reverse the order granting Knapp’s preliminary objections.


author: CIRILLO, Judge:

text:
    600 A.2d 978
    Joseph L. ROMAH, Appellant, v. Nicholas ROMAH and Vuono, LaVelle & Gray, a Partnership.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1991.
    Filed Dec. 17, 1991.

      Mark F. Bennett, Pittsburgh, for appellant.
    Dennis J. Kusturiss, Pittsburgh, for appellees.
    Before WIEAND, CIRILLO and MONTGOMERY, JJ.
   CIRILLO, Judge:

This is an appeal from a final order of the Court of Common Pleas of Allegheny County sustaining preliminary objections in the nature of a demurrer, and dismissing plaintiff’s complaint. We affirm.

Joseph L. Romah (“Joseph”) and Nicholas Romah (“Nicholas”) entered into a mortgage agreement in which Joseph was mortgagor and Nicholas was mortgagee. Joseph defaulted on the mortgage and on April 2, 1987, a confession of judgment was entered in favor of Nicholas. The judgment entered was for the principal amount of $62,000.00, interest of $611.51, and an attorney’s fee of $6,200.00. The mortgage on which the confession of judgment was entered provided for interest and a reasonable attorney’s fee upon Joseph’s default. On November 28, 1989, Joseph paid Nicholas, under protest, the amount due pursuant to the confession of judgment.

Joseph filed the instant action on November 21, 1990, seeking damages on a contract theory from Nicholas and the law firm of Vuono, LaVelle & Gray (“Vuono”). The first count of the complaint against Nicholas alleged that Joseph was required to pay excessive interest in satisfaction of the confession of judgment. The second count purported that Joseph had to pay an excessive attorney’s fee and sought recovery against both Nicholas and Vuono. Nicholas and Vuono filed preliminary objections arguing that the complaint failed to state a cause of action and that the complaint was barred by res judicata. The trial court sustained these preliminary objections and dismissed the complaint. This timely appeal followed. On appeal, Joseph contends that the complaint set forth proper causes of action against Vuono and Nicholas.

We cannot reach the merits of Joseph’s appeal because the instant case is barred by res judicata. A brief review of the relevant case law addressing the viability of actions subsequent to a confession of judgment is in order at this point to illustrate the present state of the law in this area.

In Nevling v. Commercial Credit Co., 156 Pa.Super. 31, 39 A.2d 266 (1944), this court addressed a case brought subsequent to a confession of judgment entered against Nevling. Prior to the second action but after the entry of the confession of judgment, Nevling unsuccessfully attempted to either strike off or open the judgment. Id., 156 Pa.Superior Ct. at 34, 39 A.2d at 267. Instead of appealing the denials to open or strike, Nevling brought the second action after he had several writs of execution entered against him. Id. The court did not reach the merits of Nevling’s claims as it found that res judicata barred such an inquiry. Id., 156 Pa.Superior Ct. at 35, 39 A.2d at 267.

The Nevling court stated that in order for the doctrine of res judicata to apply, there must be a coalescence of (1) identity of the cause of action; (2) identity of the persons and parties to the action; (3) identity of the quality of the parties; and (4) identity of the thing sued upon. Id. (citations omitted). The court further held that “[wjhile the former opportunity to make defenses must have been at a hearing on the merits of the cause, proceedings on a petition to open judgment are sufficient for this purpose if the other elements of res [judicata] are present.” Id. Finally, the court noted that the defenses raised in fact are immaterial to this inquiry as any defense raised or which might have been raised in the former suit are barred by res judicata in a subsequent proceeding between the same parties. Id., 156 Pa.Superior Ct. at 35-36, 39 A.2d at 267. Thus, since Nevling should have reached the issues in the second suit by appeal in the first suit or raised them in his post-confession petitions, the court would not reach the merits of the case on grounds of res judicata.

In Duquesne Light Co. v. Pittsburgh Railways Co., 413 Pa. 1, 194 A.2d 319 (1963), our supreme court held that, where a party had the opportunity to raise a potential defense to a confession of judgment but failed to do so in his first petition to open the judgment and then raised the issue in a second petition to open, the defense was barred by the doctrine of res judicata. In Duquesne the two parties entered into a lease which provided that Duquesne Light Company (“Duquesne”) would provide the Pittsburgh Railways Company (“Railways”) with the substations and equipment necessary for conversion of electric power supplied by Duquesne. Id., 413 Pa. at 2, 194 A.2d at 320. Duquesne confessed judgment against Railways for rent owing; however, Railways denied that it owed any rent and asserted that it, in fact, had overpaid rent. Id., 413 Pa. at 3, 194 A.2d at 320. The parties submitted the dispute to a board of arbitrators to determine whether the judgment should be opened. Id. The arbitrators decided against opening the judgment on the merits of the case after Railways presented its argument as to the purpose of the agreement. Id., 413 Pa. at 4, 194 A.2d at 320. On appeal, the court of common pleas affirmed the decision of the board of arbitrators. Id. Railways then brought a second petition before the common pleas court to open judgment on the grounds of illegality of the lease. The court dismissed this petition. Id.

On appeal our supreme court was asked to decide whether the defense of illegality could be raised in a second petition to open. Before making its ruling, the court noted that a final determination made by a court of competent jurisdiction settles both the defenses actually raised and those that could have been raised. Id., 413 Pa. at 5, 194 A.2d at 321. The court, relying upon the doctrine of res judicata, concluded that “[t]he defense of illegality should have been raised in the first petition to open.” Id. The court also rejected Railways’ argument that it did not know of the illegality until after the common pleas court’s decision on the first petition to open because Railways gave no reason for there to be such a delay in ascertaining this information. Id. The court concluded that the res judicata doctrine was designed to avoid the litigation of completely new issues after a case had been concluded. Id.

The United States Court of Appeals for the Third Circuit also addressed the issue in Riverside Memorial Mausoleum, Inc. v. UMET Trust, 581 F.2d 62 (3d Cir.1978). In Riverside, the first action, a confession of judgment, commenced in the state court and the second action, asserting in part defenses to the confession which could have been raised in the first action, arose in federal court. Id. at 64. The party against whom the confession of judgment was entered petitioned the state trial court to open the judgment and the trial court denied this petition. Id. In addressing the second case, the court of appeals discussed the rules relating to Pennsylvania’s confession of judgment proceedings.

After the confession, a defendant may petition to open or strike the judgment. Pennsylvania Rule of Civil Procedure 2959(a) provides that all grounds for relief “whether to strike off a judgment or to open it must be asserted in a single petition”; and under subsection (c), “a party waives all defenses and objections which he did not include in his petition or answer.”

Id. at 67. The court further noted that if, in petitioning the court to open the judgment, the party seeking to open presents an issue for jury resolution, then the court must open the judgment and the issue must be presented to a jury. Id.

While the foregoing cases are all factually distinguishable from the case before us today, the principles are applicable despite the fact that Joseph never had his claims heard by the trial court. In each of the preceding cases the party against whom the confession of judgment was entered petitioned the court to open that judgment. Joseph, however, never filed such a petition. While this distinction is important, it does not resolve this dispute in Joseph’s favor. We look to our rules of civil procedure to determine whether Joseph can proceed despite his failure to petition to open the judgment. Rule 2959 provides:

(a) Relief from a judgment by confession shall be sought by petition. All grounds for relief, whether to strike off the judgment or to open it, must be asserted in a single petition....
(c) A party waives all defenses and objections which he does not include in his petition....

Pa.R.C.P. 2959(a), (c) (emphasis added).

In the instant case Joseph seeks relief from allegedly unreasonable attorney’s fees and interest that he paid on the mortgage. These items were all subject to disposition in the confession of judgment proceedings where the attorney’s fees and interest were set as part of the judgment. Rule 2959(a) explicitly requires that the method for relief from confessions of judgment is through petition. Joseph had filed neither a petition to open nor a petition to strike off the judgment entered upon confession; instead, he brought this action approximately three years and eight months after the entry of the confession of judgment.

We will not permit such an end run around the rules of civil procedure to prevail. Joseph presents no reasons for the lengthy delay nor any statement addressing his failure to comport with the rules initially. See Duquesne Light, supra. Thus to argue that the case law is distinguishable would be meritless because Joseph’s actions would merely circumvent the rules set forth by the supreme court regarding confessions of judgment. This result would clear the way for litigants to skirt the proper procedure and bring subsequent actions when the complete judicial process is provided for and scrupulously delineated in the rules.

We now turn to the issue of res judicata and its effect on this case. In the confession of judgment action, Nicholas sued Joseph for defaulting on the payments pursuant to the mortgage. The mortgage contained a clause authorizing the confession of judgment in the event of a default. The mortgage clause further authorized interest and a reasonable attorney’s fee for the mortgage the event that the holder would have to file such an action. Joseph now contends that the amount of attorney’s fees and interest confessed was unreasonable and imposed in an illegal manner. Simply stated, the two actions concern the confession of judgment regarding the mortgage. In the first case the monies in question were the mortgage principal, the interest and the attorney’s fees. The second case seeks relief from an excessive attorney’s fee and excessive interest.

Pursuant to Nevling we must consider the factors required to dispose of this case on the grounds of res judicata. First, the remedy for objections to confessions of judgment are provided for in Pa.R.C.P. 2959. The causes of action which Joseph raises in his complaint in the present case were all subject to resolution had he raised those claims during the confession of judgment proceedings by petition to open or strike off the judgment. “It is hornbook law that the final determination by a court of competent jurisdiction settles not only the defenses actually raised, but also those which might have been raised.” Duquesne, 413 Pa. at 5, 194 A.2d at 321. See also Nevling, supra; Riverside, supra. Therefore, the causes of action are the same and the first elements of res judicata has been satisfied. Second, the parties to the instant action are identical. In the previous suit Nicholas sought to confess judgment against Joseph. Third, there have been no allegations that the quality or capacity of the parties has changed since the confession action. Fourth, the thing sued upon in both actions is the mortgage, in particular the allowance for interest and a reasonable attorney’s fee for the confession of judgment. Therefore, the Nevling requirements for application of the res judicata doctrine are present in this case.

Because Joseph failed to timely petition the trial court in the confession of judgment matter to open or strike off the judgment, he waived his rights to raise these issues. Pa. R.C.P. 2959(c). Simply raising these issues in a collateral proceeding will not avoid the effects of the earlier waiver and, thus, the present complaint against Nicholas is barred by res judicata. See Duquesne Light, supra; Riverside, supra.

Joseph also attempts to allege a cause of action against Vuono for charging an excessive attorney’s fee. This claim is utterly devoid of merit. It has long been established that the attorney fee in a case such as this is awarded to and belongs to the mortgagee and not the law firm representing the mortgagee. See, e.g., Foulke v. Hatfield Fair Grounds Bazaar, Inc., 196 Pa.Super. 155, 173 A.2d 703 (1961). Thus, the attorney fee in this case is the property of Nicholas and not Vuono. This claim is, therefore, also barred by res judicata as it should have been raised in a motion to open or strike after the confession of judgment. Duquesne Light, supra; Riverside, supra. We also note that the Vuono firm had no duties with respect to Joseph. Its duties run to its client Nicholas and not to the adverse party.

In this case, Joseph has waited almost four years to bring these issues to light. Both of these issues could have been raised in a prior proceeding. This situation is precisely the type against which the doctrine of res judicata was meant to protect. That is, res judicata was designed to preclude a party from raising new issues which could have been addressed at a prior proceeding, or raising matters which have been finally determined. We conclude, therefore, that Joseph’s claims are barred by the doctrine of res judicata.

Order affirmed.

      . We note that this case does not fall within the line of cases that emanate from the legislature’s imposition of a $50,000.00 limit on confessions of judgment for residential mortgages. See 41 P.S. §§ 101, 407. Section 407 forbids a plaintiff from levying, garnishing or executing on a confession of judgment until the plaintiff files an appropriate action and proceeds to judgment against the defendant as in an original action. The confession of judgment then merges with the second judgment. Id. However, this section is concerned with residential mortgages which are defined in section 101 as mortgages up to $50,000.00 and concerning real estate with two or fewer dwelling units. 41 P.S. § 101. In the present case, the mortgage was in excess of the statutory limit and therefore the statute does not apply. Furthermore, the cases in which the residential mortgage have arisen primarily concerned the subsequent foreclosure on the mortgage or the execution on the confession of judgment. See, e.g., Beckett v. Laux, 395 Pa.Super. 563, 577 A.2d 1341 (1990). In this case, the confessed judgment was satisfied and then the second action was filed to correct problems resulting from the confession of judgment.

      . It is also worthy of mention that in Riverside and Nevling the petitions to open were denied and no judge or jury heard evidence on the defenses raised. This procedural posture is closer to the one in the present case, although not exactly on point.

      . While Vuono is a party to the second suit, the addition of this party does not effect the consequences of the doctrine of res judicata with respect to Nicholas and Joseph.


author: TAMILIA, Judge:

text:
    600 A.2d 982
    Resi S. HOROWITZ, Appellant, v. Harvey A. HOROWITZ.
    Superior Court of Pennsylvania.
    Argued July 31, 1991.
    Filed Dec. 18, 1991.

      Joni J. Berner, Philadelphia, for appellant.
    Richard D. Malmed, Philadelphia, for appellee.
    Before MONTEMURO, TAMILIA and BROSKY, JJ.
   TAMILIA, Judge:

This is an appeal from a judgment entered September 27, 1990 in favor of appellant, Resi S. Horowitz, in the amount of $5,858.80 and against appellee, Harvey A. Horowitz, pursuant to a postnuptial separation agreement between the parties.

The parties were married on January 23, 1965 and had three children: David, born December 28, 1965; Lara, born November 26, 1967; and Jennifer, born August 28, 1969. The parties separated in 1976 and eventually executed a separation agreement on September 28, 1977, backdated to January 1, 1977, in an attempt to settle all matters and claims arising from their separation. The parties were divorced by decree dated March 29, 1978.

The separation agreement provided, inter alia, for husband to pay support to wife for herself and the parties' three children in the amount of $500 per week, with the parties executing an Order with the Domestic Relations Office of the Court of Common Pleas of Montgomery County incorporating the $500 weekly amount. The agreement called for the support payments to be reduced by $100 per week as each child attained the age of 18. In the event of wife’s remarriage or the youngest child attaining the age of 18, whichever occurred first, the remaining $200 weekly payment attributable to wife would be eliminated. In addition to the weekly support payments, the agreement required husband to pay wife a lump sum of $3,700 “for certain immediate needs in connection with the support and maintenance of wife and her three children” (Agreement, para. 6(e)). The parties also agreed husband was to pay for the children’s private school tuition, as well as tuition and other educational expenses for college education through graduate school, with the sole provision husband be consulted as to the choice of educational institutions. Husband also agreed to bear the reasonable expenses of summer camp tuition. A final provision of the agreement pertinent to this case allowed for modification of the weekly support payment based on increases in husband’s salary and professional fees.

On April 15, 1988, wife filed an action in equity against husband seeking relief and alleging husband’s failure to comply with the support provisions of the separation agreement. At sometime prior thereto, husband filed an action in support to terminate the support Order entered. The parties subsequently stipulated to consolidate the support and equity actions, with hearing being held solely on the support issues raised in the separation agreement. Hearing was held in January and February, 1990 before the Honorable Albert R. Subers, following which the judgment of September 27, 1990 was entered.

On appeal, wife first argues the hearing court erred in finding the statute of limitations barred all claims for support prior to April 15, 1984 under the terms of the separation agreement. The hearing court determined the separation agreement constituted a written contract and, as such, a four year statute of limitations applied. 42 Pa.C.S. § 5525(8). Wife argues her complaint sought specific performance of the support provisions of the separation agreement. The hearing court, however, concluded the only relief sought by wife was the payment of money due under the language of the agreement. We agree.

While courts in Pennsylvania also act as chancellors in equity, and while courts of equity have “concurrent jurisdiction to specifically enforce support agreements in order to obviate the difficulties present in enforcing such contracts at law,” Silvestri v. Slatowski, 423 Pa. 498, 502, 224 A.2d 212, 215 (1966); Balter v. Balter, 284 Pa.Super. 350, 356, 425 A.2d 1138, 1141 (1981), the equitable remedy of specific enforcement has been applied typically in cases where future support payments are sought. Where only past payments are owing, we find no difficulty in applying contract law to enforcement of support obligations in a postnuptial agreement.

Wife relies on the recent decision of this Court in Lipschutz v. Lipschutz, 391 Pa.Super. 537, 571 A.2d 1046 (1990), to buttress her claim this case involves equity jurisdiction. This reliance is misplaced. In Lipschutz, wife filed an action in equity seeking specific performance of a property settlement agreement. “The complaint sought money damages for past due support, college tuition and specific performance of that portion of the agreement relating to the payment of future college tuition and related expenses.” Id., 391 Pa.Super. at 540, 571 A.2d at 1048 (emphasis added). The Court in Lipschutz stated:

A property settlement agreement containing support provisions is enforceable by utilizing the same rules of law used in determining the validity of contracts if: it is a detailed agreement covering all aspects of the economic relationship of the parties; it is not one-sided; both spouses are adequately counseled; the amount of support is not inadequate; and the agreement does not merge into a divorce decree or a court order.

Id., 391 Pa.Superior Ct. at 542, 571 A.2d at 1049 (citations omitted). Clearly, then, Lipschutz illustrates the differences between application of equitable or legal principles to a separation agreement containing support provisions, while also setting forth the requirements which must be met in order to utilize rules of contract law. From our sedulous review of the record in this case, we find these requirements have been met and the trial court has not erred in applying contract law. The most definitive statement in respect to application of rules of law and equity to agreements and the effect of merger or incorporation of agreements into divorce decrees or domestic relations Orders is Sonder v. Sonder, 378 Pa.Super. 474, 549 A.2d 155 (1988). The underlying principle of Sonder was adopted by the Pennsylvania Supreme Court in Knorr v. Knorr, 527 Pa. 83, 588 A.2d 503 (1991). Having determined from Lip-schutz, supra, that equitable principles are not involved in this case, and will not preclude application of the statute of limitations, we must next consider whether the laws of this Commonwealth or any public policy will preclude application of the statute of limitations to this action.

It has long been held the statute of limitations will not bar relief in actions between husband and wife, under the public policy of preserving family harmony. Shapiro v. Shapiro, 424 Pa. 120, 224 A.2d 164 (1966); Morrish v. Morrish, 262 Pa. 192, 105 A. 83 (1918). Where, however, the parties are divorced or separated, family harmony, the reason for the rule, does not exist and the rule should not apply. Powell v. Powell, 244 Pa.Super. 264, 367 A.2d 314 (1976). In the case now before us, though, wife argues that “[u]nlike their divorced parents, the Horowitz children and their father are still a family unit: they have not undergone a ‘final separation’ ” (Brief of appellant, p. 14). The facts of this case will not sustain this argument. Husband testified that following their separation, his relationship with his ex-wife was not good and that there had been no communication since approximately September, 1976 (N.T., 1/22/90, p. 82). Moreover, husband testified his children became very distant from him after the separation agreement was signed, and this period of “estrangement and difficulty” lasted until each child got older and prepared to leave home (Id., pp. 86-87). Enforcement of the support provisions of the separation agreement by wife on behalf of her children hardly could have ameliorated an already dismal relationship. Therefore, we find the public policy of family preservation does not apply in this case to bar application of the statute of limitations and thus, this claim is without merit.

In Lipschutz, supra, the amount of support in an agreement exceeded that which was awarded in a subsequently obtained support Order. However, the amount set forth in the agreement, less the payments which had been made pursuant to the support Order and which constituted arrearages, was awarded only to the date of the support Order, May 26, 1982, the action having been brought for enforcement on May 9, 1985. This Court discussed laches and the statute of limitations and granted the award as to arrearages but only within the four-year statute of limitations. It denied appellant’s claim that laches applied, as discussed supra. All prospective elements of the agreement were enforced pursuant to the claim for specific performance.

In Cohen v. Cohen, 352 Pa.Super. 453, 508 A.2d 561 (1986), this Court held that since the claim for arrears in an alimony Order was brought more than six years after the last payment was due, it was barred by the six-year statute of limitations (then in effect as to judgments existing at the time of the decree). In Van Sciver v. Van Sciver, 337 Pa. 390, 12 A.2d 108 (1940), our Supreme Court held that an action on arrears pursuant to a spousal and child support trust agreement was not barred because the date of execution was more than six years before suit, as it is a continuing contract but added a caveat “at least as to the sums due within six years.”

Wife next argues the trial court erred in calculating increases in husband’s support obligations as provided by the parties’ separation agreement. Paragraph 7(a) of the agreement states:

Should Husband’s salary and professional fees increase by $10,000, Wife shall receive 20% thereof as additional support to allocate proportionately with the support provision of Paragraph 6. Any income up to $10,000 shall not be deemed to be a basis for modification for any increases in earnings over and above the first $10,000. Husband agrees he will pay an additional 10% of any such increases.

Agreement, para. 7(a).

This Court believes the agreement, finally adopted after drafting by attorneys for both parties, could have been crafted more artfully to reflect more accurately the parties’ intentions on this issue. Our review of the evidence, however, does not lead us to a different conclusion than that reached by the trial court, and “we interpret the Agreement in accordance with its language which means that the increase in income of Ten Thousand or less is not counted for increase in payment but twenty percent of the second ten thousand dollars is included plus ten percent of any balance” (Slip Op., Subers, J., 3/13/91, p. 5). We also find wife’s claims of trial error in determining the tax year to serve as a base for computing husband’s obligations and determining the portion of income to be used in computations are matters within the realm of the trial court as fact finder. On the basis of the evidence introduced, we find no error on the part of the trial court in computing husband’s obligations, and find these claims are without merit.

The third claim advanced by wife is the trial court erred in failing to require husband to pay $3,100 for his daughter Jennifer’s 1984 summer “teen tour” across the country, as required in the separation agreement for summer camp tuition. Wife contends the separation agreement contained no provision for consultation with husband concerning the choice of summer programs for the children, and the “teen tour” did not differ significantly from other summer programs husband had paid for previously. This argument is likewise without merit.

Although husband agreed in other years to pay for summer camps and related programs, we agree with the trial court’s finding that the cross-country “teen tour” was of a far different nature than the other camps, and at a much greater cost. Thus, even though husband paid for other programs which were not defined strictly as summer camps, he was not obligated to pay for Jennifer’s “teen tour,” and the trial court found correctly husband was not required to reimburse wife for this expense.

Wife also argues the trial court erred in finding a payment of $5,000 from husband’s father to wife satisfied husband’s obligation under the agreement to pay wife $3,700 for “certain immediate needs.” Again, this issue deals with the trial court’s determination of the credibility of witnesses. Wife testified the money she received was a gift and had nothing to do with the separation agreement (N.T., pp. 289-290), but husband’s father testified he made the payment for his son after wife informed him she had not received the payment husband was supposed to give her (N.T., p. 162). We find no abuse of discretion in the trial court’s crediting of the testimony of husband’s father over that of wife.

Finally, appellant and amicus suggest that public policy should not deny a child the right to support because of the agreement or failure to enforce an agreement by the parent. This argument misses the point. Appellant cites the proposition that it should be the public policy of Pennsylvania to adopt the position that the statute of limitations does not apply and although citing numerous cases which protect the child’s right to ongoing and present support, there are none in this jurisdiction which are authority for her position. The right to present and continued support may not be equated with failure of a parent to enforce an agreement or support Order for amounts that have been accumulated prior to the running of the statute. Those amounts become debts or judgments as provided by contract or statute, and absent a statute providing special treatment, the defense of the statute of limitations applies. This is not to be confused with running of a statute of limitations for bringing an action for support or paternity. Such a duty is a continuing one until the child reaches majority or is emancipated and no statute bars such an action until the duty terminates by operation of law. This does not mean that an action may be brought to collect retroactive amounts due earlier than the date a complaint for support is filed. See Pa.R.C.P. 1910.17(a) and 23 Pa.C.S. § 3701(e). Public policy issues are generally better left to the legislature to formulate rather than by edicts of the court, particularly when it can be demonstrated that the legislature has selectively considered the effect of statutes of limitations relating to children in domestic, civil and criminal matters. As to support, actions for support for children of a marriage are and have been sustainable from birth to majority. In recent years, responding to pronouncements by the United States Supreme Court, statutes of limitations for bringing actions for support of children out of wedlock were extended from one year, to two years, to six years, and finally, as codified at 23 Pa.C.S. 4343(b), to eighteen years. By Act of May 30, 1984, 42 Pa.C.S. § 5533, Infancy, insanity or imprisonment, an unemancipated minor entitled to bring a civil action shall have the same time for commencing an action after attaining majority as is allowed to others by the statute.

In criminal actions for any sexual offense committed against a minor who is less than eighteen years of age, pursuant to amendment of December 19, 1990, 42 Pa.C.S. § 5552(c)(3), prosecution may be commenced any time up to the period of limitations provided by law after the minor has reached eighteen years of age. Clearly, the legislature has acknowledged special circumstances when the statute of limitations must be extended for the benefit of children and it cannot be assumed that failure to provide such an extension in child support cases was a matter of legislative neglect or omission. As a final argument appellant refers to Oman v. Oman, 333 Pa.Super. 356, 482 A.2d 606 (1984), as support for the principle that the support obligation runs to the child and not to the parent, therefore, the parent cannot by his or her action deny the child the right of support from the other parent. This allegation simply confuses the issues regarding who may be the moving party when the duty to support is owing and timeliness of collecting past due support payments. See Pa.R.C.P. 1910.3. The statute of limitations applies whether the duty runs to the child directly or to the custodial parent as guardian of the child. While the public policy considerations may warrant a change in the law, under the facts of this case we must affirm the judgment of the trial court.

For the foregoing reasons, we find no merit in any of wife’s claims of error, and we affirm the judgment of the trial court in its entirety.

Judgment affirmed.

BROSKY, J., concurs in the result.

      . It is usually the case that matters relating to divorce decrees, support Orders or agreements are brought in the Domestic Relations Division or Section of the Common Pleas Court. Judges acting in this capacity, regardless of their designation, are exercising jurisdiction as domestic relations judges. See Marinello v. Marinello, 354 Pa.Super. 471, 512 A.2d 635 (1986); Hollman v. Hollman, 347 Pa.Super. 289, 500 A.2d 837 (1985). The powers of a domestic relations judge are plenary and the function is that of a law judge or equity chancellor as the case demands.

      . Several amendments to the Divorce Code and support law were enacted for the treatment of cases such as these where agreements were entered subsequent to 1988. The first is 23 Pa.C.S. § 3105, Effect of agreement between parties:
      (a) party to an agreement regarding matters within the jurisdiction of the court under this part, whether or not the agreement has been merged or incorporated into the decree, may utilize a remedy or sanction set forth in this part to enforce the agreement to the same extent as though the agreement had been an order of the court except as provided to the contrary in the agreement.
      Secondly, in 1988 the support law was amended, 23 Pa.C.S. § 4352, Continuing jurisdiction over support orders, to provide:
      (d) Arrears as and after the date it is due, each and every support obligation shall constitute a judgment against the obligor by operation of law, with the full force, effect and attributes of a judgment of court, including the ability to be enforced, and shall be entitled as a judgment to full faith and credit in this or any other state.
      (e) Retroactive modification of court shall modify or remit any support obligation, on or after the date it is due, except with respect to any period during which there is pending a petition for modification.
      (h) section applies to all support orders whether entered under this chapter or any other statute.

        Id. (emphasis added). The provisions of Part IV of the Domestic Relations Code (the relevant statutes above included) shall not effect any marital agreement executed before the date of the Divorce Code of 1980 or any amendment or modification thereto. See Sonder v. Sonder, 378 Pa.Super. 474, 549 A.2d 155 (1988). The effect of these statutes is to treat agreements of any kind as Orders of court, subject to laws for enforcement of support Orders and with no authority in the court to remit arrears. It appears that as to any agreements entered after 1988, there is a question as to whether the statute of limitations would apply. These sections are in response to federal laws and regulations which increasingly have limited the ability of states to remit or restrict support obligations because of public welfare concern. As to laches, pursuant to Jackman v. Pelusi, 379 Pa.Super. 361, 550 A.2d 199 (1988), the doctrine of laches is applicable only if it is established the husband/father has been prejudiced by the failure of the spouse to enforce the award. Also see Kay v. Kay, 460 Pa. 680, 334 A.2d 585 (1975).

      . In two ALR annotations, Statute of limitations, laches or acquiescence as defenses to action or proceeding for alimony or support allowed by court Order or decree, 70 ALR2d 1250, and Laches or acquiescence as defenses, so as to bar recovery of arrearages of permanent alimony or child support, 5 ALR4th 1015, it is generally held that the statute of limitations does apply as a defense in most states, while laches is much less an available defense. Whether or not it does apply is dependent in a large measure on statutory provisions.

      . Rule 1910.17. Support prder. Effective Date. Change of Address or Employment. Copies of Order.
      (a) An order of support shall be effective from the date of the filing of the complaint unless the order specifies otherwise.

      . 23 P.S. 501(e), now 23 Pa.C.S. § 3701(e), states:

        (e) Modification and order entered pursuant to this section is subject to further order of the court upon changed circumstances of either party of a substantial and continuing naAny further order shall apply only to payments accruing subsequent to the petition for the requested relief.

      . Rule 1910.3. Parties
      An action shall be brought
      (1) by a person, including a minor spouse, to whom a duty of support is owing, or
      (2) on behalf of a minor child by a person having custody of the minor, without appointment as guardian ad litem, or
      (3) by a public body or public or private agency having an interest in the care, maintenance or assistance of a person to whom a duty of support is owing, or
      (4) by a parent on behalf of a child over eighteen years of age to whom a duty of support is owing, with written consent of the child.


author: FORD ELLIOTT, Judge:

text:
    600 A.2d 988
    COMMONWEALTH of Pennsylvania v. Vanessa MILLER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 15, 1991.
    Filed Jan. 3, 1992.

      Bernard L. Siegel, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before MONTEMURO, FORD ELLIOTT and HESTER, JJ.
   FORD ELLIOTT, Judge:

Appellant was convicted under 18 Pa.C.S.A. § 4304, endangering welfare of children, following a non-jury trial. Upon conviction, appellant moved in timely fashion to arrest judgment and for a new trial. The trial Court denied these motions and appellant was thereafter sentenced to two years reporting probation. This appeal ensued. For the reasons which follow, we reverse the trial Court’s denial of the Motion to Arrest Judgment.

The relevant facts are straightforward and thoroughly tragic. On the evening of November 18, 1989, appellant took her twenty-two month old son, Clarence, and went to visit one Antonio Green. Antonio Green is the natural father of the child, although he and appellant are not husband and wife. Antonio Green resided in a three story rooming house. A restaurant was located on the first floor of the premises. The second level housed Eugenia Orr and her adult son, while Green occupied the top floor.

After meeting with Green at a neighborhood tavern, father, mother, and infant returned to the rooming house. Earlier in the day, Green had accompanied Eugenia Orr on a shopping trip to New York City; father, mother, and infant went directly to Ms. Orr’s apartment on the second floor to examine that day’s purchases. It appears that appellant was not as well acquainted with Eugenia Orr as was Green. After some time, appellant went upstairs to Green’s room, leaving the child in the care of Green because the baby was playing with his father’s new shoes. When the child tired of this activity, Green took him upstairs to appellant and then returned to the Orr apartment.

Appellant washed and changed the child and prepared the baby for bed. Green’s room contained a single adult bed. Nearby was an electric space heater, apparently of a damaged condition but currently operating. Appellant put the child in the bed and then lay down with the baby until he fell asleep. Once her son was asleep, appellant decided to go down to the first floor restaurant to buy some juice for the child. She left Green’s apartment with the child asleep in the bed, the space heater operating, and the door to the hallway stairs open. She also left her sweater in the apartment.

When she stopped on the second floor en route to the restaurant, Green asked appellant if she would “go clubbing” (visiting bars or nightclubs) with him. She declined, explaining that she had to watch the baby, and that she was tired and not dressed for the occasion anyway. While she was on the first floor, Green yelled down to her through the common hallway, repeating his request and saying that Eugenia Orr had agreed to watch the baby. Thereupon appellant agreed to accompany him. She asked Green to bring down her jacket and did not return upstairs. Green asked appellant if he could wear her sweater. She agreed and he joined her downstairs wearing it. Green had, in fact, not spoken to Eugenia Orr about watching the child and she did not do so.

Green and appellant left the rooming house at approximately 1:00 a.m. and visited two clubs during their sojourn. During this time, they were joined by friends. One of these friends was called as a witness and testified that appellant continually fretted about the baby. Returning to the rooming house after 3:00 a.m., Green and appellant discovered police and fire trucks in the street outside and the building ablaze. The only death resulting from the conflagration was appellant’s infant son, who died of smoke inhalation and burns. The space heater was determined to be the cause of the fire. Green was convicted of various criminal charges in connection with the child’s death. Appellant was convicted of endangering the welfare of her child.

We begin our analysis by reiterating our standard of review:

In reviewing a refusal to arrest judgment, we must consider whether the evidence was sufficient to uphold the verdict of the trial court. We must accept all the evidence and all reasonable inferences which may be drawn from that evidence upon which the fact finder could have based its verdict. If the evidence, viewed in the light most favorable to the verdict winner, is not sufficient to establish guilt beyond a reasonable doubt of the crime charged, then the motion should have been granted.

Commonwealth v. McFadden, 377 Pa.Super. 454, 547 A.2d 774, at 775 (1988).

Appellant has challenged, in particular, that the evidence presented at trial was insufficient to prove the intent element of the crime with which she was charged. 18 Pa.C.S.A. § 4304 does, indeed, require proof of a specific intent element:

§ 4304. Endangering welfare of children
A parent, guardian, or other person supervising the welfare of a child under 18 years of age commits a misdemeanor of the first degree if he knowingly [emphasis added] endangers the welfare of the child by violating a duty of care, protection or support.

18 Pa.C.S.A. § 4304. The criminal code further defines knowingly:

(2) A person acts knowingly with respect to a material element of an offense when:
(i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and
(ii) if the element involves the result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.

18 Pa.C.S.A. § 302(b)(2). Moreover, it is clear that § 4304 contemplates endangerment either by act or by omission to act. See Commonwealth v. Cardwell, 357 Pa.Super. 38, 515 A.2d 311, at 314 (1986), allocatur denied, 515 Pa. 573, 527 A.2d 535 (1987).

In Cardwell, supra, this court established a three-prong standard for testing the sufficiency of evidence of the intent element under § 4304:

We hold that evidence is sufficient to prove the intent element of the offense of endangering the welfare of a child, 18 Pa.C.S.A. § 4304, when the accused is aware of his or her duty to protect the child; is aware that the child is in circumstances that threaten the child’s physical or psychological welfare; and has either failed to act or has taken actions so lame or meager that such actions cannot reasonably be expected to be effective to protect the child’s physical or psychological welfare.

Cardwell, 515 A.2d 311, at 315. If proof fails on any one of these prongs, the evidence must be found insufficient.

Employing this test the Cardwell court found sufficient evidence of intent where a mother was aware that her child was being subjected to sexual abuse by the stepfather and took wholly ineffectual remedial actions. Specifically, she wrote letters to the stepfather expressing outrage and warning that she would not tolerate such conduct and she made an aborted attempt to move the child to a relative’s house.

On the other hand, in Commonwealth v. Campbell, 398 Pa.Super. 116, 580 A.2d 868 (1990), the court found insufficient evidence to convict a husband and wife where they knew that their thirteen year old daughter was engaging in sexual activity with an adult and became pregnant against the express warnings of a physician. Campbell differed from Cardwell in that the parents did not allow the child to remain in a potentially dangerous situation; they simply failed to stop the child from surreptitiously seeking out sexual activity. The court was unwilling to extend culpability, noting that parents could not know everything about their child’s activities nor was § 4304 intended to punish parents merely because their child becomes pregnant.

Commonwealth v. Skufca, 457 Pa. 124, 321 A.2d 889 (1974) presents a fact situation more akin to the case sub judice. Although Skufca dealt with a mother who had been charged under the former 18 P.S. § 4727, neglect or abandonment of a child, it is nevertheless useful for our purposes because of the similarity of its facts and because the Court indicated by footnote its belief in the applicability of the then new § 4304. Skufca, 321 A.2d at 893, n. 7.

In Skufca a mother locked her two small children in a bedroom in their apartment and then left the house for an evening social engagement. The children and the apartment were left unattended. A fire started in the apartment house and the children suffocated when neighbors, learning that the children were trapped in the bedroom, were unable to free them. We believe that the facts of Skufca satisfy the three prongs of Cardwell The mother was aware of her duty to protect her children. Indeed, by locking them in the bedroom, it is conceivable that she thought she was protecting them from various other dangers. However, although the mother could not have predicted the fire that occurred, she was certainly aware that by locking the children in the bedroom, she was placing them in an extremely hazardous situation in the event of fire. Moreover, attempting to protect her children by locking them in a bedroom constituted action too lame or meager to yield effective protection of the children’s welfare.

Turning to the instant case, the trial court, sitting as factfinder, determined that when appellant left with Antonio Green to go clubbing, she was aware that her infant son was in the third floor room with the space heater on. The court found that by failing to question Green’s statement that Eugenia Orr would watch the baby, appellant has evidenced the requisite intent for purposes of § 4304. We have difficulty in finding that the evidence is sufficient to satisfy the Cardwell tripartite test. While it is undisputed that appellant was aware of her duty to protect her child, we cannot find as a matter of law that she was aware that she had placed her child in circumstances that threatened the child’s physical or psychological welfare or that her failure to check on the alleged babysitting arrangements was unreasonable under Cardwell.

The trial court specifically credited appellant’s testimony that she believed Antonio Green when he told her that Eugenia Orr was watching her baby. The logical inference based on this finding is that appellant was not aware that she had left her child unattended. There was no evidence presented at trial that Green was an inherently dishonest person or that appellant had cause to disbelieve him in this It would appear that the trial court has based appellant’s culpability under § 4304 not on the fact that appellant knowingly left her child alone, but rather that she should not have been so gullible as to believe Antonio Green. Undeniably, appellant may have exercised poor judgment on the night in question, and perhaps she is guilty of reckless or negligent conduct in connection with her son’s death. However, this is not sufficient for a finding of guilt under § 4304. If appellant in fact believed that her son was in the care of another, she did not knowingly leave him unattended and thereby endangered, and her conduct cannot be adjudged criminal.

We consider our holding today to be a rational reflection of the purposes and aims of the criminal statute. As set out in Commonwealth v. Taylor, 324 Pa.Super. 420, 471 A.2d 1228 (1984):

The [Pennsylvania] Supreme Court has said that Section 4304 was drawn broadly to cover a wide range of conduct in order to safeguard the welfare and security of children. It is to be given meaning by reference to the common sense of the community and the broad protective purposes for which it was enacted.

Taylor, 471 A.2d 1228, 1231 (citation omitted). Utilizing a common sense of the community approach to interpret the specific intent element of the statute, we find an implicit recognition that parents at times can make mistakes in judgment and that their children may be harmed as a result. However, for such mistakes to rise to the level of criminal culpability, parents must knowingly allow their children to be at risk with awareness of the potential consequences of their actions or of their failure to act. We cannot find the evidence sufficient to establish that type of criminal intent in the instant case.

Judgment of sentence reversed. Appellant discharged.

      . We note also that 18 P.S. § 4727 has been repealed, superceded by 18 Pa.C.S.A. § 4304.

      . It is worth noting that in Skufca, the mother produced evidence to the effect that a neighbor had consented to watch the children in her absence. However, this evidence was contradicted by the Commonwealth and the jury resolved the credibility determination against the mother. The inference in Skufca would seem to be that such action on the mother’s part, if believed, would have mitigated against a finding of criminal conduct.

      . We consider this finding significant in that it clarifies that it was not leaving the child in the room with the space heater that was the basis for culpability but rather appellant’s inaction in failing to check on the babysitting arrangements. If appellant had, in fact, only left the room for a short period to get juice for the baby and the fire occurred, it is highly unlikely that appellant would find herself before the court today.

      . Although Green’s testimony at trial was so disingenuous as to prompt the trial Court to describe him as "an unmitigated liar,” (N.T. at 251), this does not lead to the conclusion that he had a history of lying such that appellant had reason to disbelieve him.


text:
    600 A.2d 992
    COMMONWEALTH of Pennsylvania, Appellant, v. Charles Richard BRETER.
    Superior Court of Pennsylvania.
    Argued Nov. 19, 1991.
    Filed Jan. 7, 1992.

      James K. Vogel, Asst. Dist. Atty., Erie, for Com., appellant.
    Richard P. Gilmore, Waterford, for appellee.
    Before BECK, TAMILIA and HESTER, JJ.
   TAMILIA, Judge:

The Commonwealth appeals from the March 8, 1991 Order which granted appellee, Charles R. Breter’s, motion to dismiss for lack of a speedy trial in accordance with Pa. R.Crim.P. 1100, Prompt trial.

On January 25, 1990, appellee was arrested and charged with endangering the welfare of his two minor children. Because the Commonwealth experienced difficulty securing their witnesses, the case against appellant was twice continued at the request of the district attorney. Thereafter, in October 1990, with full knowledge of appellee’s prior assault conviction, the Commonwealth urged appellee to file an ARD (Accelerated Rehabilitative Disposition) application which the Commonwealth summarily denied four months later solely on the basis of appellee’s prior conviction. Because the Commonwealth chose not to dispute the aforementioned averments at the hearing during which appellee’s motion to dismiss was argued, the court accepted the statements contained in the motion as fact. The court found the Commonwealth’s request for an ARD application was nothing more than a delay tactic designed to relieve an overburdened trial schedule. Therefore, the court granted appel-lee’s motion to dismiss filed more than 365 days after his January, 1990 arrest. See Pa.R.Crim.P. 1100(a)(3).

The Commonwealth contends the court erred by including in the 365-day period under Rule 1100 the four-month period during which the Commonwealth deliberated the appellee’s ARD application. The Commonwealth argues the appellee expressly waived his right to a speedy trial, guaranteed by Pa.R.Crim.P. 1100, when he applied for ARD on October 23, 1990. Specifically, the language of the application signed by the appellee included the following clause:

I hereby waive (give up) all of my constitutional rights to a speedy trial as set forth from the date I sign this Application until I either complete the ARD Program or am revoked from it, should I violate the conditions the Court imposes on me. In the event my Application for ARD is denied, I waive (give up) all of my constitutional rights to a speedy trial as set forth above from the date I sign this Application until the last scheduled day of the term of Criminal Court next following the date of my rejection. I have been advised and I understand that by signing this waiver I am waiving (giving up) any and all rights I may have to be tried within the 180th (if in jail) or 365th day following the filing of the Criminal Complaint against me. I am signing the waiver because I understand it is to my benefit to do so and to allow the District Attorney as much time as necessary to evaluate my suitability for the ARD Program. I have not been made any promises, nor have I been forced or coerced to sign this waiver.

Although at first blush the Commonwealth’s argument appears irrefutable, the facts as set forth supra indicate the Commonwealth did not meet its burden of proving it had been duly diligent in bringing appellant to trial within the 365-day period mandated by Pa.R.Crim.P. 1100(a)(3). The test to be met is whether the Commonwealth’s efforts to bring the defendant to trial were reasonable and pursued with diligence. Commonwealth v. Browne, 526 Pa. 83, 584 A.2d 902 (1990). The record reflects the Commonwealth’s actions were unreasonable and unexplained, if not totally unprofessional. We agree with the trial court’s finding, under the particular circumstances presented, the four-month period of time during which the Commonwealth avers it considered the appellee’s ARD petition was properly attributed to the Commonwealth. Therefore, the court’s Order granting appellee’s motion to dismiss was proper.

Order affirmed.

      . 18 Pa.C.S. § 4304.