author: CERCONE, Judge: MELINSON, Judge,

text:
    557 A.2d 1095
    COMMONWEALTH of Pennsylvania v. Luigi Anthony SACCOL, a/k/a Louis Saccol, a/k/a Louie Saccol.
    Superior Court of Pennsylvania.
    Submitted Nov. 7, 1988.
    Filed April 21, 1989.

      James B. Yelovich, District Attorney, Somerset, for Com.
    Michael L. Stibich, Somerset, for appellee.

      Before MELINSON, WATKINS and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal by the Commonwealth from the lower court’s order granting a new trial for defendant/appellee. The issue to be decided is whether, in a prosecution under the Wiretapping and Electronic Surveillance Control Act (hereinafter “the Act”), the Commonwealth or the defendant has the burden to prove the presence or lack of authority or consent to intercept and disclose information derived from a wiretapping or electronic surveillance operation.

The appellee in this case was charged with three violations under § 5703 of the Act for unlawfully intercepting a wire communication and disclosing and using its contents. He was found guilty by a jury of intercepting and disclosing, and not guilty of using the contents of the communication.

The events which gave rise to the charges and conviction of appellee are as follows: the appellee was a police officer in Richland Township, a suburb of Johnstown in Cambria County. He was also a partner in Richland Cleaners, a dry cleaning establishment located in the Township. Together with a friend of his, appellee installed an interceptor/recording device on his telephone at the cleaning establishment for the purpose of monitoring any incoming or outgoing calls made or received by a female employee at the establishment, with whom appellee was romantically involved. As it turned out, no phone calls were made or received by the female employee. However, a telephone call by one of the employees, a minor, was intercepted on the recording device or tape disclosing that the minor was involved in a series of burglaries. Appellee spoke to several police officers on the force about this information and played the tape for them several times. This activity on the part of the appellee resulted in criminal charges against the minor and his co-defendants and the indictment and conviction of appellee on wiretapping charges. The lower court granted appellee a new trial because, in its opinion, the Commonwealth failed to carry the burden of proving that appellee lacked authority or consent to a wiretapping operation, which authority or consent the court found to be essential elements of the crime. We respectfully disagree with the lower court on both procedural and substantive grounds and reverse the lower court’s grant of a new trial.

In Commonwealth v. Mott, 372 Pa.Super. 133, 539 A.2d 365 (1988) we said:

Moreover, the law is settled in Pennsylvania that since the trial court denied the demurrer and the appellant thereafter presented a defense, his ability to challenge the propriety of the order denying the demurrer is foreclosed. See Commonwealth v. Ilgenfritz,, 466 Pa. 345, 353 A.2d 387 (1976); Commonwealth v. Olds, 322 Pa.Super. 442, 469 A.2d 1072 (1983). At this point a challenge to the correctness of the trial judge’s ruling can only be regarded as a challenge to the sufficiency of the evidence. Commonwealth v. Hammock, 319 Pa.Super. 497, 466 A.2d 653 (1983).

Id., 372 Pa.Superior Ct. at 139-140, 539 A.2d at 368 (footnote omitted).

In this case, defendant/appellee’s demurrer was denied and appellee’s counsel then chose to proceed with the presentation of his client’s defense. In this procedural process, the jury is the recipient and sifter of all the evidence presented in the case by the Commonwealth and by the appellee in seeking the truth. The Commonwealth’s evidence pertaining to the appellee’s playing of the tapes for the information of his fellow police officers was sufficient to show that he had willfully and knowingly installed an interceptor/recording device on his telephone. This information was unsolicited. Chief of Police James Mock testified that no one in his police department in Richland Township, including appellee, had either local or state authority to intercept wire communications. This testimony coming from the Chief concerning his information and knowledge about the operation of his department was evidence for consideration by the jury and if believed was enough to prove appellee’s lack of authority to operate a wiretapping device beyond a reasonable doubt. The verdict indicated the jury’s acceptance of the Chief’s testimony. The appellee fortified his non-authority and lack of consent on cross examination as follows:

Q. Did you have any authorization to conduct a wiretap of that phone?
A. I didn’t believe it was a wiretap, sir.
Q. Just answer my question, did you have any authorization yes or no, please?
A. No.

As to the issue of whether any person gave appellee consent to conduct the wiretap operation, the only persons who could do so, other than officials under properly recognized duties which Chief Mock testified did not exist in his department, were the minor employee and his co-defendants. Clearly, they did not give appellee consent in aid of their own arrest and incrimination.

We find all the evidence presented in this case to amply and sufficiently support the verdict that appellee was in violation of the Act beyond a reasonable doubt.

Even if this case were without procedural difficulties, we find the substantive issue, as to which party has the burden of proving either the lack or the presence of authority or consent to conduct a wiretapping operation, in favor of the Commonwealth’s position.

Section 5703 of the Act, supra, under which appellee was charged and convicted reads as follows:

§ 5703. Interception, disclosure or use of wire or oral communications
Except as otherwise provided in this chapter, a person is guilty of a felony of the third degree if he:
(1) willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire or oral communication;
(2) willfully discloses or endeavors to disclose to any other person the contents of any wire or oral communication, or evidence derived therefrom, knowing or having reason to know that the information was obtained through the interception of a wire or oral communication; or
(3) willfully uses or endeavors to use the contents of any wire or oral communications, or evidence derived therefrom, knowing or having reason to know, that the information was obtained through the interception of a wire or oral communication.

The lower court in granting a new trial did so on the basis that the provisions in § 5704 and § 5708 of the Act, infra, set forth essential elements of the crime which were necessary for the Commonwealth to prove beyond a reasonable doubt in order to convict appellee under the language of § 5703.

Section 5704 reads as follows:

§ 5704. Exceptions to prohibition on interception and disclosure of communications.
It shall not be unlawful under this chapter for:
(1) An operator of a switchboard, or an officer, agent or employee of a communication common carrier, whose facilities are used in the transmission of a wire communication, to intercept, disclose or use that communication in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service or to the protection of the rights or property of the carrier of such communication. However, no communication common carrier shall utilize service observing or random monitoring except for mechanical or service quality control checks.
(2) Any investigative or law enforcement officer or any person acting at the direction or request of an investígative or law enforcement officer to intercept a wire or oral communication involving suspected criminal activities where:
(i) such officer or person is a party to the communication; or
(ii) one of the parties to the communication has given prior consent to such interception. However, no interception under this paragraph shall be made unless the Attorney General or a deputy attorney general designated in writing by the Attorney General, or the district attorney, or an assistant district attorney designated in writing by the district attorney, of the county wherein the interception is to be made, has reviewed the facts and is satisfied that the consent is voluntary and has given prior approval for the interception; however such interception shall be subject to the recording and record keeping requirements of section 5714(a) (relating to recording of intercepted communications) and that the Attorney General, deputy attorney general, district attorney or assistant district attorney authorizing the interception shall be the custodian of recorded evidence obtained therefrom.
(3) Police and emergency communications systems to record telephone communications coming into and going out of the communications system of the Pennsylvania Emergency Management Agency or a police department, fire department or county emergency center, if:
(i) the telephones thereof are limited to the exclusive use of the communication system for administrative purposes and provided the communication system employs a periodic warning which indicates to the parties to the conversation that the call is being recorded;
(ii) all recordings made pursuant to this clause, all notes made therefrom, and all transcriptions thereof may be destroyed at any time, unless required with regards to a pending matter; and
(iii) at least one nonrecorded telephone line is made available for public use at the Pennsylvania Emergency Management Agency and at each police department, fire department or county emergency center.
(4) A person, to intercept a wire or oral communication, where all parties to the communication have given prior consent to such interception.
(5) Any investigative or law enforcement officer, or communications common carrier acting at the direction of an investigative or law enforcement officer or in the normal course of its business, to use a pen register.
(6) Personnel of any public utility to record telephone conversations with utility customers or the general public relating to receiving and dispatching of emergency and service calls provided there is, during such recording, a periodic warning which indicates to the parties to the conversation that the call is being recorded.
(7) A user, or any officer, employee or agent of such user, to record telephone communications between himself and a contractor or designer, or any officer, employee or agent of such contractor or designer, pertaining to excavation or demolition work or other related matters, if the user or its agent indicates to the parties to the conversation that the call will be or is being recorded. The terms “user,” “contractor,” “demolition work,” “designer” and “excavation work” shall have the meanings given to them in the act of December 10, 1974 (P.L. 852, No. 287), referred to as the Underground Utility Line Protection Law; and a one call system shall be considered for this purpose to be an agent of any user which is a member thereof. (Footnote omitted.)

The pertinent part of § 5708 is as follows:

§ 5708. Order authorizing interception of wire or oral communications
(a) Authorization. Except in cases referred to in subsection (b), the Attorney General, or, during the absence or incapacity of the Attorney General, a deputy attorney general designated in writing by the Attorney General or the district attorney or, during the absence or incapacity of the district attorney, an assistant district attorney designated in writing by the district attorney of the county wherein the interception is to be made, may make written application to any Superior Court judge for an order authorizing the interception of a wire or oral communication by the investigative or law enforcement officers or agency having responsibility for an investigation involving suspected criminal activities when such interception may provide evidence of the commission of any of the following offenses, or may provide evidence aiding in the apprehension of the perpetrator or perpetrators of any of the following offenses:

Under § 5708 there follows a long list of crimes for which wire or oral communications may be intercepted by persons authorized either by the nature of their position or upon proper application to any judge of the superior court.

Our supreme court explicated the proper approach to use when construing a statute in Commonwealth v. Bigelow, 484 Pa. 476, 399 A.2d 392 (1979):

In interpreting the statute before us, our goal is to ascertain and effectuate the intention of the legislature. In so doing we are called upon to use a common sense approach in which words and phrases are examined according to established rules of grammar and according to their common usage. We are guided by the presumptions that the legislature did not intend a result that is absurd, unreasonable or impossible of execution.

Id., 484 Pa. at 481-482, 399 A.2d at 394 (citations omitted).

In following these guidelines we find that the language in § 5704 and § 5708 does not set forth elements of the crimes that may be perpetrated under the Act, but only sets forth the identity of persons for whom it is not unlawful to intercept wire or oral communications. These sections list an entire litany and category of persons so identified which is the fundamental purpose of those two sections.

The language of § 5703 under which appellee was charged and convicted carries a succinct definition of the crime, to wit, that any person who willfully intercepts and discloses information derived from the interception of wire or oral communications is guilty of a third degree felony. Each subsection (1), (2) and (3) of § 5703 begins with the word “willfully” indicating the crux and basis of the mental intent involved in the crime. While the word “willful” is not specifically defined by the Act, the general definition contained in Title 18 states that “a requirement that an offense be committed willfully is satisfied if a person acts knowingly with respect to the material elements of the offense, unless a purpose to impose further requirements appears.” 18 Pa.C.S.A. § 302(g). Black’s Law Dictionary, Fourth Edition, defines the word “willful” as involving turpitude, generally meaning evil purpose or criminal intent. Once this willful conduct is proven, the Commonwealth has succeeded in establishing the essential element of the crime beyond a reasonable doubt.

In a reading of the three sections involved in this case (§§ 5703, 5704 and 5708), contrary to appellee’s argument, it would place an unreasonable burden on the Commonwealth if it were forced into bringing all the persons or their pertinent records into court in order to prove either a lack of authority to operate, or lack of consent to operate, a device to intercept a wire or oral communication. Attorneys General and their deputies and District Attorneys and their assistants are not always incumbents in office when a wiretap case comes up for trial. Locating the whereabouts of the persons previously in authority would in itself present a formidable task. The same holds true with the other persons enumerated in § 5704 and § 5708.

But this is not the most important objection to appellee’s claim that the Commonwealth must carry the burdens under § 5704 and § 5708 relating to authority or consent on grounds they comprise the essential elements of the crimes charged under § 5703. The language in § 5704 and § 5708 constitutes provisos on authority or consent and exceptions to culpability for the persons enumerated therein. As the court said in Commonwealth v. Bigelow, supra,

The purpose of a proviso is to qualify, restrain or otherwise modify the general language of the enabling provision. Commonwealth ex rel Margiotti v. Lawrence, 326 Pa. 526, 531, 193 A. 46, 48 (1937). Material placed in proviso is not an element of crime but rather a matter of defense and need not be either plead or proved by the prosecution. US. v. Winnicki, 151 F.2d 56, 58 (7th Cir.1945).

Id., 484 Pa. at 482-3, 399 A.2d at 395.

It is interesting that in Bigelow the court found that the burden of proving licensure to carry a firearm was on the defendant because of the structure of § 6108 of the Uniform Firearms Act, 18 Pa.C.S.A. § 6108 (1973), and the nature of the prohibition described in that section. Four years earlier in Commonwealth v. McNeil, 461 Pa. 709, 715, 337 A.2d 840, 843 (1975), the court found that the burden was on the Commonwealth to prove lack of licensure to carry a weapon because of the nature and structure of § 6106 of the same Act. Thus, it is a matter of examining the structure of the statute or each of its sections and the nature of the prohibition in determining the issue of the burdens to be carried as has been done in many instances in cases cited by both parties. We find those cases and others cited by the Commonwealth more compelling in arriving at our decision.

We have a number of cases which have placed the burden on the defendant to prove he was authorized or exempted from culpability in the performance of certain conduct or acts. In Commonwealth v. Harrison, 137 Pa.Super. 279, 283, 8 A.2d 733, 735 (1939), involving non-registration regarding sales of securities, we said: “In a case of this nature the burden is never upon the Commonwealth to prove negatively that a defendant does not come within a proviso or exception of a statute.” See also 1 Wharton’s Criminal Evidence, Section 202. This principle was also upheld in a case involving non-certification in rendering public utility services. See Commonwealth v. Bitzer, 163 Pa.Super. 386, 62 A.2d 108 (1948) (where Commonwealth has proved elements necessary to support prima facie case, defendant has burden to show by preponderance of evidence that he comes within an excusable exception to offense charged). More recently, in Commonwealth v. Stawinsky, 234 Pa.Super. 308, 339 A.2d 91 (1975), partially overruled, Commonwealth v. Sojourner, 268 Pa.Super. 488, 408 A.2d 1108 (1979), we held that proof of required registration to distribute and sell a controlled substance was not a necessary element of a violation of the Controlled Substance Device, Drugs and Cosmetic Act, 35 Pa.C.S.A. § 780-101 — 780-144. However, where the defendant comes forward with some evidence that he was authorized to possess a controlled substance, the burden shifts to the Commonwealth to prove nonauthorization beyond a reasonable doubt. See Commonw v. McFarland, 252 Pa.Super. 523, 533, 382 A.2d 465, 470 (1977) (whether a statutory clause sets forth a necessary element of a crime depends on the behavior the General Assembly intended to prohibit); see Commonwealth v. Sojourner, 268 Pa.Super. 472, 408 A.2d 1100 (1978), on rehearing, 268 Pa.Super. 488, 408 A.2d 1108 (1979) (use of inference to prove necessary element of crime is not barred by due process requirement; however, fact inferred must follow beyond reasonable doubt from facts proved).

In reading § 5704 and § 5708 we find that the exemption clauses in those sections do not refer to conduct, i.e., to essential elements of the crime of willfully intercepting wire or oral communications, but to persons for whom it is not unlawful to intercept wire or oral communication. Thus the exemptions in § 5704 and § 5708 apply if the accused has attained a certain status; they have nothing to do with the conduct that would constitute a crime if performed by someone else, like the appellee in this case.

In McKelvey v. United States, 260 U.S. 353, 43 S.Ct. 132, 67 L.Ed. 301 (1922), the Supreme Court of the United States had occasion to state:

By repeated decisions it has come to be a settled rule in this jurisdiction that an indictment or other pleading founded on a general provision defining the elements of an offense, or of a right conferred, need not negative the matter of an exception made by a proviso or other distinct clause, whether in the same section or elsewhere, and that it is incumbent on one who relies on such an exception to set it up and establish it.

Id. at 357, 43 S.Ct. at 134 (citations omitted). Commonwealth v. Bigelow, supra, further explains:

The United States Supreme Court has never required the prosecution to negate the language of a proviso. Such a requirement would have the effect of limiting the government to allegations it might be wholly unable to prove, and without subserving any useful purpose to the defendant. While the rules of criminal pleading require that the accused shall be fully apprised of the charge made against him, it should, after all, be born in mind that the object of criminal proceedings is to convict the guilty, as well as to shield the innocent; and no impracticable standards of particularity should be set up, whereby the government may be entrapped into making allegations which it would be impossible to prove____ Neither in criminal nor in civil pleading is it required to anticipate or negative a defense.... ‘In general,’ says Chitty, ‘all matters of defense must come from the defendant, and need not be anticipated or stated by prosecutor.’

Id. 484 Pa. at 483, 399 A.2d at 395 (citations and quotes omitted).

In Commonwealth v. Stoffan, 228 Pa.Super. 127, 323 A.2d 318 (1974), our court found Commonwealth v. Neal, 78 Pa.Super. 216 (1922) useful in interpreting certain exemption clauses in the Controlled Substance, Drug and Cosmetic Act, supra. In deciding whether the exemption clauses referred to elements of charged crimes, this court enunciated the following test:

When a statute defining an offense contains an exception, in the enacting clause, which is so incorporated with the language defining the offense that the ingredients of the offense cannot be accurately and clearly described if the exception is omitted, the rules of good pleading require that an indictment founded upon the statute must allege enough to show that the accused is not within the exception, but if the language of the clause defining the offense is so entirely separable from the exception that the ingredients constituting the offense may be accurately and clearly defined without any reference to the exception, the pleader may safely omit any such reference, as the matter contained in the exception is the matter of defense and must be shown by the accused.

Stoffan, supra 228 Pa.Super. at 140, 323 A.2d at 324.

Without a central information center, the Commonwealth in every prosecution of this kind would have to locate state and local law enforcement officers whether in or out of office to determine from their testimony or from their records whether appellee came within the provisos and exceptions of § 5704 and § 5708. This would also be true with all the other persons listed in the various subsections of those sections, if the Commonwealth were called upon to prove that appellee was not a member of an approved function, or not exempt under any of the numerous other exemptions set forth in § 5704 and § 5708. The Legislature would not have intended the Commonwealth to sustain such an impossible burden. Thus, we hold that the burden of providing evidence of authority or of consent to conduct a wiretap interception falls upon the appellee as a matter of defense.

The order of the lower court is vacated and this case is remanded for further proceedings consistent herewith. Jurisdiction is relinquished.

MELINSON, J., files a concurring statement.

MELINSON, Judge,

concurring:

In reviewing a trial court’s grant of a new trial, this court’s standard of review “generally is whether the trial court palpably and clearly abused its discretion or committed an error of law which controlled the outcome of the case.” Westinghouse Elevator Co. v. Herron, 514 Pa. 252, 256, 523 A.2d 723, 725 (1987). See also Thompson v. City of Philadelphia, 507 Pa. 592, 493 A.2d 669 (1985); Nicholson v. Garris, 418 Pa. 146, 210 A.2d 164 (1965). Abuse of discretion is not the issue, however, when the trial court gives only a single reason for its grant of a new trial. In that instance, the validity of the legal justification of the trial court is the sole issue on appeal. Westinghouse, 514 Pa. at 256, 523 A.2d at 723. As set forth in Penneys v. Segal, 410 Pa. 308, 311, 189 A.2d 185, 187 (1963):

When it clearly appears from the opinion of the court below on the new trial motion, “that except for the reason relied upon by the court for granting a new trial, judgment would have been entered on the verdict, the action of the lower court becomes reviewable, not for an abuse of discretion, but for the legal merit of the sole and exclusive reason assigned for the granting of the new trial____” [citations omitted].

The sole reason which the lower court gave for its grant of a new trial in this case was that the Commonwealth had the burden of proof to negate the exceptions and authorizations set forth in Sections 5704 and 5708 of the Wiretapping and Electronic Surveillance Control Act, 18 Pa.Cons.Stat.Ann. Section 5701 el seq., and did not undertake to do so.

For the reasons stated in Judge Cereone’s able analysis on this issue, the trial court’s ruling was an error of law. For this reason, I concur in the reversal of the trial court’s order granting the Commonwealth (Appellant) a new trial.

      . Act of October 4, 1978, P.L. 831, No. 164, Section 2, as amended, 18 Pa.C.S.A., §§ 5701 — 5726.

      . 18 Pa.C.S.A. 5703, Interception, disclosure or use of wire or oral communications.

      . The holding in Commonwealth v. Stawinsky, supra, was overruled only to the extent that it supported the conclusion a defendant must prove some aspect of authorization to possess and deliver a controlled substance by a preponderance of the evidence in order to be acquitted of a violation charged under the Controlled Substance, Device, Drugs and Cosmetic Act, supra. Commonwealth v. Sojourner, 268 Pa.Super. 488, 497-505, 408 A.2d 1108, 1113-1117 (1979).


source: Caselaw Access Project

author: JOHNSON, Judge:

license: Public Domain

text:
    557 A.2d 1103
    Gerry P. TOMLINSON & Bettina L. Tomlinson v. Charles A. JONES & Sharon L. Jones, Appellants.
    Superior Court of Pennsylvania.
    Submitted Feb. 1, 1988.
    Filed May 2, 1989.
    Harry V. Klein, Jr. Sunbury, for appellants.

      Myron M. Moskowitz, Shamokin, for appellees.
    Before TAMILIA, POPOVICH and JOHNSON, JJ.
   JOHNSON, Judge:

Charles Jones and Sharon Jones appeal from the order of the trial court requiring them to remove from their property a barricade which prevented Gerry Tomlinson and Bettina Tomlinson, Appellees, from making continued use of an easement across the Appellants’ property for egress and ingress to their own home. We affirm.

The Appellees live on land-locked property in West Cameron Township, Northumberland County. Since buying their home in 1986, the Appellees have made continuous use of a roadway that extends across the Appellants’ private property in order to reach their land from Legislative Route 49012. The Appellees can only access their property from legislative route 49012 by use of the roadway in question. The trial court found that the roadway has been used and in certain instances maintained by the Appellees and their predecessors in title since the turn of the century.

The dispute between the parties arose in April, 1987 when the Appellees filled potholes on the roadway with gravel in order to permit easier passage on the roadway. After the Appellants discovered that the gravel was placed on the roadway they decided to barricade the road to prevent its use by the Appellees. The Appellees brought an action in equity asking that the Appellants be ordered to remove the barricade since the Appellees had acquired an easement either by prescription, implication or necessity over the roadway. A hearing in this matter commenced before the Honorable Samuel C. Ranck on December 10, 1987. On July 15,1988, having found that the Appellees were entitled to an easement by prescription, Judge Ranck entered an order directing that the Appellants remove the barricade and refrain from further interfering with the Appellees use of the easement. The Appellants’ motions for post-trial relief were filed and denied. This appeal is taken from entry of the final decree.

Initially, the Appellants argue that the Appellees could not have acquired an easement by prescription since the Appellants’ roadway transverses private uninclosed woodland property and is therefore subject to 68 P.S. 411 which provides in pertinent part:

No right of way shall be hereafter acquired by use, where such way passes through uninclosed woodland; but on clearing such woodland, the owner or owners thereof shall be at liberty to enclose the same, as if no such way had been used through the same before such clearing or inclosure.

“The character of the land itself is determinative of the application of the Act of 1850.” Minteer v. Wolfe, 300 Pa.Super. 234, 242, 446 A.2d 316, 321 (1982) citing Humberston v. Humbert, 267 Pa.Super 518, 521, 407 A.2d 31, 32 (1979). After viewing the property in question, the trial court was satisfied that the area was a woodland within the meaning of the act. The trial court, however, declined to apply 68 P.S. 411 to the facts in this case. It found that the Appellants and their predecessors were well aware of the roadway’s use by owners of adjacent properties and therefore the statute’s purpose of protecting owners who were not aware of trespassers and who could not afford to enclose their expansive properties would be unavailing. The Appellants ask that we find that the trial court erred by concluding that 68 P.S. 411 was inapplicable even though this was woodland property.

The findings of the trial court will not be disturbed absent a clear abuse of discretion or error of law. However, this court is not bound by the lower court’s legal conclusions and is free to draw its own inferences and conclusions from the established facts. Minteer v. Wolfe, 300 Pa.Super. at 238, 446 A.2d at 318. We conclude that Appellees acquired an easement by implication which is an easement not prohibited by 68 P.S. 411. Accordingly, we do not reach Appellants contention that 68 P.S. 411 should be applied to prevent the acquisition of a prescriptive easement under the facts of this case.

An easement by implication is acquired where the intent of the parties is clearly demonstrated by “the terms of the grant, the surroundings of the property and other res gestae of the transaction.” Thomas v. Deliere, 241 Pa.Super. 1, 4, 359 A.2d 398, 399 (1976). Pennsylvania has adopted the Restatement of Property view of determining when a easement by implication arises. Thomas v. Deliere, 241 Pa.Super. at 5 n. 2, 359 A.2d at 400 n. 2. Under this view an easement by implication exists where an inference of the intention of the parties arises from the surrounding circumstances. Restatement of Property § 476, comment (a). Several factors may be considered when discerning the parties intent:

[w]hether the claimant is the conveyor or the conveyee, (b) the terms of the conveyance, (c) the consideration given for it, (d) whether the claim is made against a simultaneous conveyee, (e) the extent of the necessity to the claimant, (f) whether the reciprocal benefits result to the conveyor and the conveyee, (g) the manner in which the land was used prior to its conveyance, and (h) the extent to which the manner of prior use was or might have been known to the parties.

Restatement of Property § 476. The extent to which an easement is necessary under the circumstances is a factor heavily weighed in determining whether an easement should be implied. Id. We note in this regard that the Restatement of Property does not retain the historical distinction between easements acquired by implication or those acquired of necessity but rather requires a balancing of all relevant factors to ascertain the inference of intent.

We believe the record sufficiently demonstrates that the Appellees acquired an easement by implication.

When a right or title is of ancient origin or where the transaction under investigation is so remote as to be incapable of direct proof ... the law, of necessity, relaxes the rules of evidence and requires less evidence to substantiate the fact [in] controversy.

Minteer v. Wolfe, 300 Pa.Super. at 240, 446 A.2d at 319 citing Hostetter v. Commonwealth, 367 Pa. 603, 606, 80 A.2d 719, 720 (1951). The last owner of both the dominant and servient estates, prior to their severance in 1897, was Amanda Whary. Amanda Whary divided the property by separately selling each tract, first the dominant estate to Mary Whary in 1897 and then the servient estate to Pierce Wehry in 1902. At trial, the Appellees established use of the roadway by the dominant estate owners at least as far back as the Ressler family in 1952. The evidence further indicates that owner Mary Whary (owner of the dominant estate 1897-1952) and the members of the Gotaskie family (owners of the servient estate 1937-1968) are deceased. Given the span of time which has passed since the properties were divided in 1897, there is very little direct evidence on the issue of Amanda Whary’s intent.

Given the unlikelihood of providing direct proof that Amanda Whary intended to give subsequent owners of the Appellees’ tract an easement, we must look to the surrounding circumstances. The trial court found that the roadway passing over the Appellants’ property is the only access which the Appellees have to their land. The Appellants admit that they are unaware of any other roadway and the Appellees testified that no other roadway exists. Neither land survey submitted by the parties discloses any roadway other than the disputed roadway and a path, also on the Appellants’ property, not passable by vehicle, which extends therefrom. The trial court’s finding is also buttressed by evidence suggesting that this is the only roadway known to have been used by the succeeding owners in title since the Ressler family received ownership in 1952, some thirty-seven years ago. Use of this roadway by the Ressler family until present day is unchallenged. Where the servient estate abuts a public roadway and the only access to the dominant estate is by easement over the servient estate, and where the properties were originally held jointly, it has long been the rule that an easement arises of necessity. Soltis v. Miller, 444 Pa. 357, 282 A.2d 369 (1971).

The facts also show that Amanda Whary sold the dominant estate, then encompassing 80 acres and 60 perches, to Mary Whary for the nominal amount of $8.38, thereby suggesting that Mary Whary may have been a relative. Thus, we think it reasonable to believe that the land was transferred with the intent that Mary Whary have access to her property over the roadway which apparently has existed since her ownership. Mary Whary then devised this property to her daughter Madeline who sold the property some seven months later to the Ressler family which also used the roadway for passage. In addition, the record discloses that the owners of the servient estate have benefitted for years from the dominant estate owners use of the roadway. As far back as 1954, the Balonis family, owners of the dominant estate at that time, permitted their farming equipment to be used to maintain the roadway. Because the Appellees’ property can be accessed only by the roadway and because the roadway has been used by generations of families living on the land without objection, we find that the record discloses the inference of an intent on the part of Amanda Whary, upon dividing the land, to permit owners of the dominant estate to use the servient estate for passage. Accordingly, an easement by implication is proper.

The Appellants next contend that even if the facts support the existence of an easement by necessity or implication, to permit such easement would be contrary to the apparent intent of 68 P.S. 411 to prevent any right of way from being acquired. The Appellants point to no authority for this proposition, nor have we found any. The cases which discuss this statute uniformly treat this provision as prohibiting prescriptive use. Neither does 68 P.S. 411 implicitly include within its meaning a prohibition against easements arising of necessity or implication. Given the statute’s apparent purpose to protect woodland property owners against unknown and undesired encroachment upon their property rights, we find that this statute has no applicability were an easement has arisen by implication or necessity. In the former case, the dominant estate owner is deemed to have intended the use implied and in the latter, the use arises as a matter of public policy to prevent land from remaining unusable. 3 Powell on Real Property 410-411 (1970).

In conclusion, we find that the Appellees have acquired an easement by implication. Therefore, the trial court’s order directing the Appellants to remove the barricade from the roadway in question and to refrain from further interference with the Appellees use of the roadway is proper.

Judgment affirmed.

      . The name "Amanda Whary" on the Appellees’ chain of title appears as "Amanda Wehry” on the Appellants’ chain of title. It is evident by the chains of title of both parties that Amanda Whary and Amanda Wehry are the same individual. We believe the variation in this owner’s last name to be simply a typographical error and therefore she will heretofore be referred to as Amanda Whary.

      . Judgment was entered on April 13, 1989 pursuant to Pa.R.A.P. 905(a).


author: PER CURIAM:

text:
    557 A.2d 1106
    COMMONWEALTH of Pennsylvania, Appellant, v. Tracy B. SHAFFER, Appellee.
    Superior Court of Pennsylvania.
    Submitted March 28, 1989.
    Filed May 3, 1989.

      Keith A. Pesto, Assistant District Attorney, Hollidaysburg, for Com., appellant.
    A. Thomas Farrell, Assistant Public Defender, Altoona, for appellee.
    Before WIEAND, DEL SOLE and MELINSON, JJ.
   PER CURIAM:

In this criminal action, the trial court used a motion to quash the information as a mechanism for entering a finding that the accused was not guilty and dismissing the prosecution. This was error. Therefore, we reverse and remand for further proceedings.

A motion to quash is an appropriate means for raising defects apparent on the face of the information or other defects which would prevent prosecution. Commonwealth v. Moser, 328 Pa.Super. 237, 240, 476 A.2d 980, 981 (1984); Commonwealth v. Meoli, 307 Pa.Super. 50, 52, 452 A.2d 1032, 1033 (1982). It is neither a guilt determining procedure nor a pre-trial means for determining the sufficiency of the Commonwealth’s evidence. Neither the adequacy nor competency of the Commonwealth’s evidence can be tested by a motion to quash the information. Commonwealth v. Meoli, supra, 307 Pa.Superior Ct. at 53, 452 A.2d at 1034. See also: Commonwealth v. Moser, supra.

The posture of this case was unnecessarily beclouded by a stipulation of counsel which purported to recite the evidence on which the parties would rely upon a trial of the charges. Such a stipulation was of no value in aiding the trial court in its determination of the defendant’s motion to quash the information. Defendant had been charged with violating section 481(a) of the Public Welfare Code of June 13, 1967, P.L. 31, No. 21, as amended, 62 P.S. § 481(a), by failing to disclose moneys paid to her via the Blair County Prison, which allegedly represented the payment of support by Michael LeComte, an inmate. The District Attorney stipulated that the defendant would produce testimony that the money was intended for ultimate delivery to a third person in payment of an indebtedness by LeComte to such third person. The truth of such testimony, however, was not stipulated. Thus, it is patently clear that the stipulation did not resolve the ultimate issue of guilt or innocence. This issue was for the trier of the facts. When the trial court made that determination in response to a defense motion to quash the information, the court fell into error.

Reversed and remanded for further proceedings. Jurisdiction is not retained.


author: DEL SOLE, Judge:

text:
    557 A.2d 1107
    Bonnie Lou DITZLER, Appellee, v. Herman Thruston KAMERMAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 6, 1989.
    Filed May 11, 1989.

      John F. Pyfer, Jr., Lancaster, for appellant.
    Gary Gene Krafft, Lancaster, for appellee.
    Before DEL SOLE, KELLY and HESTER, JJ.
   DEL SOLE, Judge:

This is an appeal of a final order of the domestic relations section of the Court of Common Pleas, confirming and ratifying in all respects the recommended order of the Domestic Relations Officer which directed Appellant, Herman Thurston Kamerman, to pay support and provide medical coverage for his four children. Mr. Kamerman and appellee, Mrs. Ditzler, are the parents of four children who reside with Mrs. Ditzler in Lancaster County. Mr. Kamerman resides in Berlin, West Germany, where he is employed as a pilot. The Lancaster court held that Appellant was validly served with process in Lancaster County, Pennsylvania in accordance with Pa.R.C.P. No. 411, and was thus subject to the jurisdiction of the court.

Mr. Kamerman argues that the Lancaster County Court of Common Pleas erred in asserting personal jurisdiction over him in the instant child support proceedings, and instead the action should have been transferred to West Germany, where the proceeding would have been governed by the Revised Uniform Reciprocal Enforcement of Support Act [RURESA], 23 Pa.C.S.A. §§ 4501 et seq. Appellant cites the Pennsylvania Long-Arm Statute 42 Pa.C.S.A. § 5322 which provides in pertinent part:

(b) Exercise of full constitutional power over nonresidents____ [T]he jurisdiction of the tribunals of this Commonwealth shall extend to all persons who are not within the scope of section 5301 (relating to persons) to the fullest extent allowed under the Constitution of the United States and may be based on the most minimum contact with this Commonwealth allowed under the Constitution of the United States, (emphasis added).

Appellant asserts that those contacts sufficient to support personal jurisdiction consistent with the due process clause of the United States Constitution do not exist. He states that he is not now and has never been a resident of the Commonwealth and the parties last marital home before the divorce was Illinois. Moreover, he argues that his limited contacts with Pennsylvania have in no way given rise to the claim for support, and no misconduct on the part of the Appellant has occurred within the Commonwealth. He further states that his visits with the children and his sister in Pennsylvania can not be considered the type of continuous and substantial affiliations with the Commonwealth required for the assertion of personal jurisdiction. Rogers v. Rogers, 295 Pa.Super. 160, 441 A.2d 398 (1982).

However, as noted above, the Pennsylvania Long Arm Statute states that minimum contacts analysis applies only to those people who are not within the scope of § 5301. 42 Pa.C.S.A. § 5301 states:

(a) General rule. — The existence of any of the following relationships between a person and this Commonwealth shall constitute a sufficient basis of jurisdiction to enable the tribunals of this Commonwealth to exercise general personal jurisdiction over such person, or his personal representative in the case of an individual, and to enable such tribunals to render personal orders against such person or representative:
(1) Individuals.—
(i) Presence in this Commonwealth at the time when process is served, (emphasis added).

The record shows that Mr. Kamerman had elective surgery performed at a hospital in Lancaster, Pennsylvania, and it was while he was recuperating at the home of his sister in Lancaster County that he was personally served with the support complaint. Therefore, the application of the minimum contacts test to Appellant’s contacts with the Commonwealth is inapposite. Appellant was present within the Commonwealth when served with process.

Our supreme court has held, “jurisdiction of the person is ordinarily acquired by service upon him of the court’s process within the territorial limits of its authority ...” Simpson v. Simpson, 404 Pa. 247, 251 172 A.2d 168, 171 (1961); see also, Vaughn v. Love, 324 Pa. 276, 281, 188 A. 299 (1936). Thus, our courts have held, and the language of of 42 Pa.C.S.A. § 5301 supports the view that presence is a sufficient condition for the exercise of jurisdiction.

Thus we need not determine whether Mr. Kamerman had the requisite minimum contacts with the Commonwealth to justify the assertion of personal jurisdiction over him. Because he was properly served with process while within the Commonwealth, the Court of Common Pleas has jurisdiction over the Appellant in this support action. We therefore affirm the order of the trial court.


author: ROWLEY, Judge: WIEAND, Judge, DEL SOLE, Judge,

text:
    558 A.2d 75
    Patricia J. GRIFFIN v. Vincent A. GRIFFIN, Sr., Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 5, 1988.
    Filed March 29, 1989.
    See also, 384 Pa.Super. 210, 558 A.2d 86.

      John P. Lawler, Stroudsburg, for appellant.

      Anne C. Tiracchia, Stroudsburg, for appellee.
    Before CIRILLO, President Judge, and BROSKY, ROWLEY, WIEAND, McEWEN, DEL SOLE, MONTEMURO, BECK and TAMILIA, JJ.
   ROWLEY, Judge:

This appeal of Vincent A. Griffin, Sr. (hereinafter “Husband”), is from a support order entered by the trial court on August 8, 1987. The order directs him to pay $600.00 per week toward the support of three children who were then under the age of eighteen and to pay two-thirds of the college expenses of three older children: Cecilia, whose age as of the date of the order was twenty-three; Christine, who was then twenty; and Patricia, who was then nineteen. The order of support for Cecilia was for the 1987-88 academic year only; the order of support for Christine and Patricia was for the academic years 1987-88 and 1988-89. The order of support for the three younger children was made effective January 27, 1987, the date on which a claim for child support was made in the parties’ divorce action at No. 2640 Civil of 1985.

Husband presents four arguments on appeal. They are: 1) the trial court erred in ordering him to pay two-thirds of the college expenses of Cecilia, given that she was already twenty-three; 2) the trial court erred in ordering him to pay two-thirds of the college expenses of Christine, who was herself the mother of a child; 8) the trial court failed to calculate Husband’s support obligation in accordance with the formula established by the state Supreme Court in Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984); and 4) as a result of the foregoing errors, the total amount of support that Husband has been ordered to pay is excessive. Having concluded that the record in this case does not provide sufficient facts to enable us to address Husband’s first issue, we vacate paragraph three of the trial court’s order, which directs Husband to contribute to the college expenses of Cecilia, and remand for further proceedings on that claim. Having thoroughly reviewed the briefs and the record, we conclude, for the reasons set forth below, that the remaining issues raised by Husband are without merit. Accordingly, we affirm the remaining portions of the trial court’s order.

The procedural history of the case is as follows: The parties separated on June 1, 1985. On November 18, 1985, appellant Husband filed a divorce action against appellee Patricia J. Griffin (hereinafter “Wife”). On April 7, 1987, Wife filed a complaint for support which resulted in the order that is the subject of this appeal. The parties failed to reach an agreement at a support conference. Because the county support master had a conflict of interest which prevented him from hearing the parties’ case, the trial court directed that, pursuant to Pa.R.C.P. 1910.11, the matter would be heard de novo by the court. The parties were directed to submit a stipulation of facts to the court within thirty days and to file memoranda of law, and the case was listed for argument on July 6, 1987. The parties complied with the court’s order. Following argument, the trial court entered the order at issue herein, and Husband filed a timely appeal. Neither party to this appeal objects to the procedure utilized in this case. Because of the importance of the issues raised by Husband, the case has been argued before an en banc panel of this Court.

Preliminarily, we note that the amount of a support order is largely within the discretion of the trial court, whose judgment should not be disturbed on appeal absent a clear abuse of discretion. Melzer v. Witsberger, 505 Pa. at 475 n. 8, 480 A.2d at 997 n. 8. An abuse of discretion is not merely an error of judgment, but rather a misapplication of the law or an unreasonable exercise of judgment. Id.; DeWalt v. DeWalt, 365 Pa.Super. 280, 283, 529 A.2d 508, 510 (1987). A finding that the trial court abused its discretion must rest upon a showing by clear and convincing evidence, and the trial court will be upheld on any valid ground. Shindel v. Leedom, 350 Pa.Super. 274, 279, 504 A.2d 353, 355-56 (1986).

I.

Husband’s first and second issues concern the obligation of a parent to support a child over the age of eighteen who is seeking a college education. Pennsylvania is one of a number of states whose child support statutes do not limit child support to “minor children.” Horan, Postminority Support for College Education — A Legally Enforceable Obligation in Divorce Proceedings? 20 Fam.L.Q. 589, 592 (Winter 1987). In fact, our child support statutes expressly provide for the possibility that parents may be liable for the support of children who are eighteen or older. 23 Pa.C.S. § 4321. Our case law has identified two situations in which such a support obligation may be imposed: 1) where the child suffers from a physical or mental defect that renders self-support impossible, Brown v. Brown, 327 Pa.Super. 51, 54, 474 A.2d 1168, 1169 (1984); Verna v. Verna, 288 Pa.Super. 511, 515, 432 A.2d 630, 632 (1981); Commonwealth ex rel. Welsh v. Welsh, 222 Pa.Super. 585, 588, 296 A.2d 891, 893 (1972), and 2) where the child wishes to obtain a college education. Pennsylvania is among a minority of states that impose a support obligation in the latter situation. Horan, supra, at 592 n. 9.

A parent’s legal obligation to support a child in college, absent a specific agreement to do so, was first established in Commonwealth ex rel. Ulmer v. Sommerville, 200 Pa. Super. 640, 190 A.2d 182 (1963). In that opinion this Court held that a parent may be required to support a child attending college if two conditions are met: first, the child must be able and willing to pursue successfully his or her course of study; second, the parent must have sufficient estate, earning capacity, or income to enable him or her to comply with the support order without suffering undue hardship. Id., 200 Pa.Superior Ct. at 643-44, 190 A.2d at 184. These conditions have been reaffirmed in numerous subsequent cases. See, e.g., DeWalt v. DeWalt, 365 Pa.Super. at 287, 529 A.2d at 512; Brown v. Brown, 327 Pa.Super. at 53, 474 A.2d at 1169; Curtis v. Curtis, 326 Pa.Super. 40, 44, 473 A.2d 597, 599 (1984); Lederer v. Lederer, 291 Pa.Super. 22, 25, 435 A.2d 199, 201 (1981).

In addition to the basic elements of the parental obligation, a number of subsidiary issues have also been resolved by our courts. It is settled law, for example, that a child’s own resources may be taken into account. Miller v. Miller, 353 Pa.Super. 194, 197, 509 A.2d 402, 404 (1986); Ulmer v. Sommerville, supra. A child will not necessarily be required to contribute as much as possible, however, Miller v. Miller, 353 Pa.Super. at 197-98, 509 A.2d at 404, nor will he or she be required in every case to attend a state-supported institution rather than a more expensive private one, Commonwealth ex rel. Larsen v. Larsen, 211 Pa.Super. 30, 33, 234 A.2d 18, 20 (1967). Although our courts have held that the post-secondary school education to which parents may be required to contribute includes private preparatory school, Commonwealth ex rel. Stump v. Church, 333 Pa.Super. 166, 172, 481 A.2d 1358, 1361 (1984), and commercial art school, Kopp v. Turley, 359 Pa.Super. 106, 110-11, 518 A.2d 588, 591 (1986), we have declined to extend the parental obligation to include postgraduate and professional training, Brown v. Brown, 327 Pa.Super. at 55-56, 474 A.2d at 1170.

As Husband notes in his first issue, an additional limitation on the parental obligation to pay a child’s college expenses is that only in exceptional cases may that obligation be extended past the child’s twenty-third birthday. DeWalt v. DeWalt, 365 Pa.Super. at 289, 529 A.2d at 513 (citing Brown v. Brown, 327 Pa.Super. at 55, 474 A.2d at 1170). As we explained in DeWalt:

In Brown v. Brown [supra ], we stated that a parent’s obligation to pay his child’s college expenses may not be extended past the child’s twenty-third birthday except in unusual cases____ This is not an arbitrary number____ It is consonant with the policies underlying [the] parental obligation.
The duty to pay for a child’s college education in certain circumstances results from a balancing of competing policies. The disadvantages forced upon children by their parents’ divorce should be minimized. Parents who would have supported their child’s education if they had not divorced, should not be encouraged to further victimize a child by leaving him without a college degree. However, this parental obligation is not limitless and does not extend into perpetuity____ [I]t is dependent upon a showing by the child that he is interested in pursuing his education.
By the age of twenty-three, a young adult will usually have had at least four years to complete his college education. If he has shown the requisite interest, he should have his degree in hand. If he has not demonstrated this commitment and has failed to take advantage of the opportunity given him, he has waived any right to complain about a lack of parental interest____ Of course, exceptional cases will arise where the circumstances are such that this rule should not be inflexibly applied.

Id. 365 Pa.Super. at 289-90, 529 A.2d at 513 (citations omitted; emphasis added). We identified two circumstances in which the rule should not be applied: where a child has been unable to complete his or her education because the parent refused to pay support, and where the child was unable to complete the course work in the usual time period because of illness. Id.

At the time the support order in this case was entered, the parties’ oldest child, Cecilia, was twenty-three years old. As noted in the parties’ joint stipulation of facts, Cecilia graduated from high school in 1982. She attended Muhlenberg University from the fall of 1982 through the fall of 1984, was “gainfully employed” during the spring of 1985, and then, having changed her major from education to nursing and transferred to Syracuse University, attended Syracuse during the academic years 1985-1986 and 1986-1987. Exhibit G of the parties’ stipulation of facts includes a statement by Cecilia’s academic advisor that Cecilia is a student of good character and good academic standing who is expected to complete her senior year successfully. Husband has been ordered to pay two-thirds of Cecilia’s college expenses for 1987-88, her final year. He asserts that Cecilia’s case presents no exceptional circumstances that would justify an award of support past her twenty-third birthday.

We are unable to determine, on the record before us, whether exceptional or unusual circumstances exist that would justify the trial court’s order of support. Wife asserts that extenuating circumstances can be “inferred” from the record (Brief for Appellee at 8-9). She suggests that Cecilia’s decision not to attend college during the spring of 1985 may have resulted from the “disruption of family life” created by the impending birth of a child to Cecilia’s sister Christine and by the marital situation of the parties, who eventually separated on June 1, 1985. Wife also notes that Cecilia changed her major and transferred from Muhlenberg to Syracuse. However, there is in fact no evidence of record that explains, and does not merely suggest, why Cecilia has not obtained a college degree within the usual four-year period. Husband should not be made to bear a support obligation on the basis of hypothetical deductions as to what may have occurred in Cecilia’s life.

At the same time, we are reluctant to deny Cecilia the support to which she may be entitled simply because the present record does not disclose that hers is an exceptional or unusual case. The parties’ joint stipulation of facts was filed on June 24, 1987, and the case was argued before the trial court on July 6, 1987. Our opinion in DeWalt v. DeWalt, supra, which makes explicit the need for a showing of exceptional circumstances if a parent is to be required to contribute to a child’s college expenses past the child’s twenty-third birthday, was not filed until July 29, 1987. Thus, we cannot fault Wife for not including in the joint stipulation a more detailed explanation, if one exists, of the reason for Cecilia’s extended academic career. Accordingly, we vacate paragraph three of the trial court’s support order, which directs Husband to pay two-thirds of Cecilia’s educational costs for the academic year 1987-88, and remand the case to the trial court for further hearing concerning Cecilia’s entitlement to support.

II.

In his second issue Husband contends that the trial court erred in ordering him to pay two-thirds of Christine’s educational expenses for the academic years 1987-88 and 1988-89. The essence of his claim is that because Christine “is emancipated and the mother of a child herself” (Brief for Appellant at 11), she is no longer entitled to his support.

We learn from the joint stipulation of facts that Christine “graduated from Notre Dame High School in 1984, attended the University of Rochester during the fall of 1984, gave birth to a child in the spring of 1985, attended Lehigh University in the fall of 1985, was employed by Heide Hafner, Inc., Rainbow Abstract, Inc., and Griffin and Griffin, Inc. during the winter, spring and summer of 1986, and attended Moore Institute of Art during the fall of 1986 and spring of 1987. Her child’s name is Cassandra, age 2 years---- Her income from Rainbow Abstract, Inc. was $1,532.00.” Copies of W-2 forms attached to the joint stipulation of facts indicate that Christine’s 1986 income from the other employers was $3,170.01. The parties’ 1985 federal income tax return indicates that they claimed Christine and her daughter as dependents for that year. Finally, the stipulation of facts notes that the marital residence was occupied by Wife and the parties’ six children, thus indicating that, at the time the stipulation was entered into (on or about June 24, 1987), Christine had not left the family home.

Pursuant to 23 Pa.C.S. § 4323(a), a court shall not order either or both parents to pay for the support of a child who is emancipated. The term “emancipated” is not defined in the definitions section of the support statute, 23 Pa.C.S. § 4302, or in the definitions section of the general provisions of Pennsylvania Consolidated Statutes, 1 Pa.C.S. § 1991. Husband does not argue that Christine has emancipated herself by marrying; in fact, he concedes that her child was born out of wedlock. Nor does he contend that she has left the family home in order to live independently; as noted above, the facts of record indicate otherwise. His argument is, simply, that because she is twenty-one and the mother of a child, she is no longer entitled to support.

Husband cites no case law, and our research has uncovered none, which holds that a college student who has had a child should, for that reason alone, be treated differently for purposes of support from a college student who has not had a child. We decline to adopt such a distinction in this case, for Husband has advanced no persuasive reason why we should do so. In a different case, where the facts indicated that the child in question had not only become a parent but had also chosen to lead an independent life or had become estranged from his or her own parents, we might well reach a different result. In the case before us, however, we see no reason why Christine should be denied the support to which our case law entitles her. Accordingly, we affirm the trial court's order of support for Christine.

III.

The third and fourth issues are presented by Husband as a single claim: that the trial court failed to follow the procedure established by our Supreme Court in Melzer v. Witsberger, supra, for the calculation of child support obligations and thereby imposed upon him a support obligation that is excessive. Husband notes that he has been ordered to pay $31,200.00 per year toward the support of the three younger children and $23,652.00 toward the support of the three college-age children for the academic year 1987-88, for a total one-year support obligation of $54,-852.00. The trial court, however, did not address Husband’s duty of support as a single obligation. Instead, the order of support is based upon two separate conclusions of law: 1) after deduction of Husband’s reasonable living expenses, he has the sum of $700.00 available to meet his weekly support obligations for the three younger children; and 2) Husband has sufficient assets and earning capacity to provide for the major portion of the college expenses of the three college-age children. The trial court did not err in distinguishing between the children on the basis of age, for the legal standard that controls a parent's obligation to pay child support varies with the child’s age. DeWalt v. DeWalt, 365 Pa.Super. at 283, 529 A.2d at 510. While parents may be liable for the support of children who are eighteen or older, parents are liable for the support of children who are unemancipated and eighteen or younger. 23 Pa.C.S. § 4321. Therefore, we address separately Husband’s support obligation for the three younger children and his total support obligation, including contributions to the educational expenses of the three children in college.

A.

Husband’s third issue requires us to determine whether the trial court applied the standards established by our Supreme Court in Melzer v. Witsberger, supra, for the calculation of child support obligations. The Court held in Melzer that the trial court’s calculation of support should be based on the following guidelines: First, the hearing court must calculate the reasonable expenses of the children. Second, the court must determine the respective abilities of the parents to support the children, taking into account the property, income, and earning capacity of each parent and making allowance for each parent’s reasonable living expenses. Third, the court is to calculate each parent’s total support obligation in accordance with the following formula:

parent’s total obligation parent’s income available for support both parents’ income available for support

X children’s needs

Finally, the court shall determine what portion of the parent’s obligation may be offset by support provided directly to the child. 505 Pa. at 471-73, 480 A.2d at 995-96. We explained in DeWalt v. DeWalt, 365 Pa.Super. at 285, 529 A.2d at 508, that a majority of the Supreme Court in Melzer eschewed a strict, mechanistic formula and instead endorsed a flexible approach to support cases. Accordingly, while trial courts are required to calculate the Melzer formula, they may adjust the resulting support obligation where the particular circumstances warrant doing so. Id. Husband asserts that the trial court failed to follow the Melzer procedure, in particular, by failing to calculate the parties’ incomes.

Although the trial court stated that it was applying the Melzer standard to the case at bar, the court did not include in its findings of fact the actual Melzer formula given above. This Court has recently held that “[t]o insure that an actual dollar figure is determined as to the reasonable needs and expenses of the parents and children the calculated Melzer formula must be in the record.” Marshall v. Ross, 373 Pa.Super. 235, 239, 540 A.2d 954, 956 (1988), quoting Ryan v. DeLong, 371 Pa.Super. 248, 255, 538 A.2d 1, 3 (1987). However, we cannot fault the trial court for not computing the Melzer formula in this case, the reason being that Wife has no income available for child support. The court found that while Wife has monthly interest income of approximately $900.00, she has reasonable personal expenses of approximately $1,200.00. Wife’s securities account, which at the time of the court’s order had a balance of $170,000.00, had decreased from a balance of approximately $240,000.00 one year earlier. As Wife explained in her verified petition for discovery dated May 11,1987, and in her 1987 income and expense statement, she has not received any income from Griffin and Griffin, Inc., a construction company owned by the parties, since May 7, 1986. In addition, we agree with Wife that although the parties’ interests in Griffin and Griffin, Inc., are subject to eventual equitable distribution, Wife’s fifty percent share of the company does not now provide her with income that can be utilized for child support (Brief for Appellee at 11). A party’s ability to pay must be determined as of the time support payments are sought. Melzer v. Witsberger, 505 Pa. at 470 n. 5, 480 A.2d at 995 n. 5; Costello v. LeNoir, 462 Pa. 36, 40, 337 A.2d 866, 868 (1975). Where, as here, Wife has no income available for child support, the result to be obtained by calculating the Melzer formula is a foregone conclusion: Wife’s share of the child support obligation will be zero and Husband’s share will be one hundred percent. It would serve no useful purpose to remand this case to the trial court for formal calculation of the Melzer formula when, given the circumstances of the case, the result of such calculation is already apparent from the record.

Husband asserts that Wife’s ability to pay child support must be taken into account. As noted earlier, Melzer v. Witsberger holds that each party’s ability to pay is dependent upon the party’s property, income, and earning capacity. 505 Pa. at 471, 480 A.2d at 996. However, under the “nurturing parent doctrine” an exception is created whereby, in appropriate cases, the earning capacity of a parent who chooses to stay home with young children need not be considered. Hesidenz v. Carbin, 354 Pa.Super. 610, 616, 512 A.2d 707, 710 (1986); Butler v. Butler, 339 Pa.Super. 312, 318-19, 488 A.2d 1141, 1143-44 (1985); Commonwealth ex rel. Wasiolek v. Wasiolek, 251 Pa.Super. 108, 113-14, 380 A.2d 400, 403 (1977). As of the date the support order in the present case was entered, the three younger children were still at home, and one of the three, Bernadette, was confined to a wheelchair. The trial court declined to consider Mother’s earning capacity, finding it in the children’s best interests to have her continue to remain at home. We conclude that the trial court did not abuse its discretion in doing so.

Husband’s argument that the trial court failed to establish his income is also without merit. The trial court found that although Husband had reduced his weekly draw from Griffin and Griffin, Inc., from $1,200.00 in June 1986 to $600.00 in June 1987, his earning capacity remained the same because he retained his access to the accumulated earnings of the company. Given the fact that the parties took management fees from the company in the amount of $122,645 in 1980, $37,125 in 1981, $192,900 in 1982, $42,545 in 1983, $16,376 in 1984, and $43,008 in 1985, as stated on the federal income tax returns attached to the joint stipulation of facts, the court’s conclusion is reasonable. Husband’s reasonable weekly living expenses were determined to be $490.00. The trial court concluded that Husband has the sum of $700.00 available each week to meet his support obligations for the three younger children (Trial Court’s Conclusion of Law No. 1), a conclusion that is plainly warranted by the figures for weekly earning capacity and expenses. Husband was ordered to pay $600.00 per week, $100.00 less than the amount available, toward the support of those children. This sum is equal to the average weekly living expenses of the children as found by the trial court. We conclude that the trial court did not abuse its discretion in ordering Husband to pay the stated amount toward the support of Bernadette, Vincent, Jr., and Mary.

B.

As the order of support for the three younger children has been determined to be proper, Husband’s remaining issue in this appeal is whether, if his arguments concerning Cecilia and Christine, the college-age daughters, are rejected, the total amount of support for college expenses that he has been ordered to pay is excessive. Husband argues, in effect, that the trial court erred in concluding as a matter of law that he “has sufficient assets and earning capacity to provide for the major portion of the college expenses of the three adult daughters” (Trial Court’s Conclusion of Law No. 4). In light of our decision to vacate the trial court’s award of support to Cecilia, the oldest child, and to remand for further proceedings, we will address Husband’s present claim only as it pertains to the order of support for Christine and Patricia.

As noted earlier in section I, a parent may be ordered to pay for a child’s college education if the obligation will not impose an undue hardship upon the parent. DeWalt v. DeWalt, supra; Lederer v. Lederer, supra. Paragraphs four and five of the trial court’s order of August 3, 1987, direct Husband to pay two-thirds of the total cost of tuition, room, board, and books for the 1987-88 and 1988-89 academic years for Christine and Patricia, both of whom attend the Moore Institute of Art. The total cost for both daughters for the 1987-88 year is $21,750. Husband’s obligation for the first year is therefore $14,500; presumably there will be a small increase for the second year. Having reviewed the information presented in the record concerning Husband’s financial situation, we conclude that the trial court did not abuse its discretion in ordering Husband to pay this amount. As noted earlier, the amount that Husband was ordered to contribute per week to the support of the three younger children was $100.00 less than the amount available to him after his weekly expenses were subtracted from his weekly earning capacity. In addition, Husband has a securities account that was valued at approximately $270,000 in 1987. In that year he received approximately $9,800.00 in interest and dividends. These figures leave no doubt that the obligation to pay two-thirds of the educational expenses of Christine and Patricia for the 1987-88 and 1988-89 academic years does not impose an undue hardship upon Husband. Accordingly, we affirm paragraphs four and five of the trial court’s order.

IV.

Paragraph three of the trial court’s order is vacated and the case is remanded to the trial court for further proceedings consistent with this opinion. The remaining portions of the order are affirmed. Jurisdiction is relinquished.

WIEAND and DEL SOLE, JJ., file a concurring and dissenting opinion.

WIEAND, Judge,

I concur in the decision of the majority to affirm that portion of the order which directs appellant to pay the sum of six hundred ($600) dollars per week for the support of three minor children. I also concur in the affirmance of the directive to pay two-thirds of the college expenses of a nineteen year old daughter and a twenty year old daughter and agree that that portion of the order ordering payment of two-thirds of the college expenses of a twenty-three year old daughter must be vacated. However, I dissent from the majority’s decision to remand for further proceedings concerning payment of college expenses for the emancipated, twenty-three year old daughter who elected to discontinue her college enrollment and enter the work force. When she subsequently decided to return to a different school and follow a different course of study, she could no longer compel her father to pay her expenses. This was not altered merely because her mother and father are now engaged in bitter divorce proceedings.

The law is clear that a parent does not have a duty to support an emancipated child, and that “once a child capable of self-support is emancipated, a subsequent change in situation does not revive any parental liability for support.” 67A C.J.S. Parent & Child § 6. See also: Commonwealth ex rel. Welsh v. Welsh, 222 Pa.Super. 585, 296 A.2d 891 (1972); Colantoni v. Colantoni, 220 Pa.Super. 46, 281 A.2d 662 (1971). Moreover, in DeWalt v. DeWalt, 365 Pa.Super. 280, 529 A.2d 508 (1987), this Court said:

The duty to pay for a child’s college education in certain circumstances results from a balancing of competing policies. The disadvantages forced upon children by their parents’ divorce should be minimized. Parents who would have supported their child’s education if they had not divorced, should not be encouraged to further victimize a child by leaving him without a college degree. However, this parental obligation is not limitless and does not extend into perpetuity. As discussed above, it is dependent upon a showing by the child that he is interested in pursuing his education. Id., [Brown v. Brown ] 327 Pa.Superior Ct. at 55-56, 474 A.2d at 1170.
By the age of twenty-three, a young adult will usually have had at least four years to complete his college education. If he has shown the requisite interest, he should have his degree in hand. If he has not demonstrated this commitment and has failed to take advantage of the opportunity given him, he has waived any right to complain about a lack of parental interest. As an adult, he must be prepared to accept at least this much responsibility. Of course, exceptional cases will arise where the circumstances are such that this rule should not be inflexibly applied. A child may be unable to complete his education in four years because his parent refused to pay support. If a support order is finally entered, it would hardly be fair to terminate the obligation before the child has received four full years of parental aid. A contrary result would reward the parent for his own intransigence. Likewise, a child may have been ill and unable to complete his course work in the usual time frame. Certainly, the law will not compound his suffering by refusing to consider these extenuating circumstances when determining the parental support obligation.

Id. 365 Pa.Super. at 290, 529 A.2d at 513-514 (emphasis added).

In the instant case, the oldest daughter is twenty-three years of age and in her ninth semester of college. Her college matriculation was voluntarily interrupted when she dropped out and obtained a job. Later, she enrolled at another institution of higher learning and changed her course of study. The evidence failed to show exceptional circumstances, as the majority concedes, which would have taken her out of the rule in DeWalt.

For these reasons, I would vacate the portion of the order which directed appellant to contribute to the cost of educating his emancipated daughter. I would not remand to provide her with an opportunity to relitigate the cause of action which she failed to prove when the matter was previously before the court. I would not afford her the proverbial “second bite.”

DEL SOLE, Judge,

concurring and dissenting:

As does my colleague, Judge Wieand, I concur in the majority’s decision to affirm the support order entered on behalf of the parties’ three minor children. However, I must dissent from the majority’s rulings regarding the parties’ three children who were over the age of 18 when the support action was initiated by their mother. I believe that the petition for support as to these three women should be dismissed for failure to conform to Pa.R.C.P. 1910.3(4).

The Rules of Civil Procedure direct which parties may bring an action for support. The general rule requires an action to be brought by any person “to whom a duty of support is owing.” Pa.R.C.P. 1919.3(1). Generally, an adult person to whom support is owed will maintain their own action. And, the Rules of Civil Procedure define an adult as an individual eighteen years of age or over. Pa.R. C.P. 76. A minor is defined by the Rules as an individual under the age of eighteen, Pa.R.C.P. 76, and a person having custody of the minor may bring an action for support on the minor’s behalf. Pa.R.C.P. 1910.3(2). In actions seeking support for a an adult child, the Rule permits a parent to institute the proceedings if the written consent of the child is acquired. It states:

An action shall be brought

(4) by a parent on behalf of a child over eighteen years of age to whom a duty of support is owing, with the written consent of the child.

Pa.R.C.P. 1910.3(4). (emphasis added.)

The comment to this rule states that it is designed to “permit a parent to initiate an action on behalf of a child who is away at school or otherwise absent from the forum.” In this case, Appellee, mother, initiated an action against Appellant, father, seeking support for three children who had past their eighteenth birthday. The record does not include the written consent of these women to bring this support action against their father.

The application of this Rule has been considered by this court in a situation where a parent sought review of an order increasing his duty of support for an adult child who was not a party to the action. In Com. ex rel. Cochran v. Cochran, 339 Pa.Super. 602, 489 A.2d 804 (1985) this court construed Rule 1910.3(4) to require “the written consent of a child over eighteen years of age when a parent seeks to impose an additional support obligation on the other parent”. Id., 339 Pa.Superior Ct. at 607, 489 A.2d 804. Finding no such consent the court ruled that the petition for increased support should have been dismissed. In support of its decision the court commented: “If through the written consent requirement we have given children over eighteen a role in the decision whether to seek a support order in the courts, there is no reason why that role should exist only if the child was not previously covered by a support order during his or her minority.” Id.

In this case, Appellant’s three eldest daughters did not file an action for support against their father. The action was brought by their mother, however no written permission was obtained from these women. In accordance with Rule 1910.3(4) and this court’s decision in Cochran, I would dismiss the petition for support of Appellant children who were over the age of eighteen at the time the action was initiated.

The majority suggests that this result is unwarranted because no objection to the lack of consent was raised by the father. It is the majority’s position that the father’s inaction has waived the issue of non-compliance with Rule 1910.1 et seq. See Majority Opinion at 192, n. 2. I do not believe this issue can be waived. The failure to include the consent of the adult children to this action amounted to the absence of indispensable parties. An indispensable party is one whose rights are so connected with the claim litigated that no relief can be granted without infringing upon those rights. Columbia Gas Transmission Corp. v. Diamond Fuel Co., 464 Pa. 377, 346 A.2d 788 (1975). Rule 1910.3(4) recognizes the necessity of requiring adult children to maintain their own support actions against one or both parents, and also makes a provision for assisting them in this endeavor when they may be absent from the forum; it permits a parent to initiate the action with the written consent of the child. The Rule, in effect, makes the adult child an indispensable party to the support action. “The absence of indispensable parties goes absolutely to the jurisdiction, and without their presence the court can grant no relief____ This objection to the court’s jurisdiction may be raised at any time in the proceedings and, if not raised by the parties, should be raised sua sponte.” Posel v. Redevelopment Authority of Philadelphia, 72 Pa. Commw.Ct. 115, 456 A.2d 243, 246 (1983). Thus, I believe the failure to include the adult children’s consent to this support action is not an issue subject to waiver, and the support petition should be dismissed.

It is my position that this decision would be in keeping with the spirit of the Rule. As recognized by the Cochran court an adult child should be the person to decide whether to pursue court ordered support from a parent. The necessity of making such a decision may prompt children to enter private discussions with their parents, individually or together, to resolve issues such as support for college education. This course of action, outside the court system, is undoubtedly better in promoting family harmony. Further, it is the course which these children would necessarily take if the circumstances were different and their parents had not divorced.

The majority refers to caselaw which maintains that children of divorced parents should not be “victimized” by withholding payment of a college education if their parents would have supported their education had they remained married. Majority Opinion at 193-195. In an effort to prevent this perceived “victimization” these children have been permitted to seek support through the court system. However, it is important to realize that children of parents who remain together do not look to the courts to resolve their college financial problems. The children of a two-parent household must work out their college finances with their parents without the power of the judiciary behind them, and failing that they must somehow earn or borrow the money needed. This, in my view, is the far better practice. Pa.R. C.P. 1910.3(4) promotes this procedure. It necessarily involves adult children in the financial decisions which must be made concerning their further education.

Since Appellant’s adult daughters did not file an action for their own support and since they did not give their mother written consent to pursue an action in their behalf, I would dismiss their Complaint for support in accordance with Rule 1910.3(4).

      . The children are Bernadette, born August 31, 1970; Vincent, Jr., bom December 12, 1974; and Mary, bom May 17, 1978.

      . The record as certified to this Court does not contain the written consent of Cecilia, Christine, and Patricia, all of whom were over the age of eighteen when Mother's complaint for support was filed, to Mother’s maintenance of a support action against Father on their behalf. See Pa.R.C.P. 1910.3(4). The lack of such consent was not raised by Father in the trial court or in this appeal, and he has not sought to defend against the claims for support for the three daughters on the ground that their written consent does not appear in the record. Therefore, he has. waived any claim concerning non-compliance with Rule 1910.3(4).
      We are aware of the ruling by a panel of this Court in Commonwealth ex rel. Cochran v. Cochran, 339 Pa.Super. 602, 489 A.2d 804 (1985), that Rule 1910.3(4) requires the written consent of a child over the age of eighteen when one parent seeks, on the child’s behalf, to impose an additional support obligation on the other parent. However, the issue of the child's consent had not been waived in that case. To the contrary, the appellant, who was the child’s father, had specifically raised the absence of the child’s consent as a defense to the mother’s request for an increase in support for the child. Therefore, this Court’s opinion in Cochran v. Cochran is not controlling in the present case.

      . Attached to the joint stipulation of facts as exhibits are the parties’ federal income tax returns, both personal and corporate, for the years 1980 through 1985; information concerning the Internal Revenue Service audit of the parties' 1982-1984 returns; tuition information, 1986 W-2 forms, and spring 1987 grades for Cecilia, Christine, and Patricia; and 1986-87 parochial school tuition bills and a 1987-88 tuition schedule for the three younger children. The stipulation and exhibits are included in the record that has been certified to this Court.

      . Pa.R.C.P. 76 defines "minor" as “an individual under the age of eighteen years” and "adult" as "an individual eighteen years of age or over." However, the definitions section of Pennsylvania Consolidated Statutes, 1 Pa.C.S. § 1991, defines "minor” as "[a]n individual under the age of 21 years" and "adult" as "[a]n individual 21 years of age or over." See Sutliff v. Sutliff, 515 Pa. 393, 401 n. 4, 528 A.2d 1318, 1322 n. 4 (1987) (plurality). In this opinion we will distinguish between children under eighteen and children eighteen and over, without using the terms "minor” and “adult.”

      . As noted earlier, this Court observed in DeWalt v. DeWalt, supra, that “[i]n Brown v. Brown [supra ], we stated that a parent’s obligation to pay his child’s college expenses may not be extended past the child’s twenty-third birthday except in unusual cases." DeWalt, 365 Pa.Super. at 289, 529 A.2d at 513 (emphasis added). The issue in Brown was whether a parent can be required to support a twenty-two-year-old child who is attending law school. While we noted in Brown that ”[e]ven the scarce authority for the theory that a full-time student is a dependent adult ... has not been extended to a child beyond age 22,” 327 Pa.Super. at 55, 474 A.2d at 1170 (citation omitted), we were not called upon to place an age limit upon a parent’s obligation to pay for a child’s college education. Accordingly, we do not view our opinion in Brown as having constituted notice to Wife of such an age limit.

      . The parties’ joint stipulation of the facts does not include a stipulation that the parties’ liability for support shall be decided solely on the facts stated therein. Therefore, we may remand for further proceedings.

      . Husband was also ordered to provide medical and hospitalization insurance for the six children and to pay one-half of any reasonable medical and hospital expenses not covered by insurance. He does not specifically challenge this portion of the order in his brief.