author: CIRILLO, President Judge:

text:
    530 A.2d 1381
    In the Interest of R.M.R. Appeal of Kenneth E. DeLONG.
    Superior Court of Pennsylvania.
    Argued June 10, 1987.
    Filed Sept. 18, 1987.
    Ambrose R. Campana, Williamsport, for appellant.

      Before CIRILLO, President Judge, OLSZEWSKI and HESTER, JJ.
   CIRILLO, President Judge:

This is an appeal from an order of the Court of Common Pleas of Snyder County, Juvenile Division, upholding an agency determination of child sexual abuse.

R.M.R. was born in December of 1980 and is the child of Sherry Ryan and appellant Kenneth DeLong. The child resides with his maternal grandparents, Henry and Dorothy Royer. On April 1, 1985, Children & Youth Services of Snyder County (“CYS”) received a report that R.M.R. was being sexually abused when in the custody of his father. At the time, DeLong was attempting to gain custody of his child. A CYS caseworker, James Rinck, met with R.M.R. on April 2 and 3 and concluded that the allegations were substantiated.

On April 9, 1985, the Family Division of the Court of Common Pleas suspended DeLong’s visitation rights. The court also ordered CYS to investigate the charges of abuse.

On May 22, 1985, CYS filed a child Protective Services investigation report stating that DeLong had sexually abused his child. Pursuant to the provisions of the Child Protective Services Law, 11 P.S. §§ 2201-2224, this report was an “Indicated report.” The Act defines such a report as one “made pursuant to this act if an investigation by the child protective service determines that substantial evidence of the alleged abuse exists based on (i) available medical evidence, (ii) the child protective service investigation, or (iii) an admission of the acts of abuse by the child’s parent or person responsible for the child’s welfare.” 11 P.S. § 2203.

The Act also provides for “founded” and “unfounded” reports. A founded report is “a report made pursuant to this act if there has been any judicial adjudication based on a finding that a child who is a subject of the report has been abused.” An unfounded report is “any report made pursuant to this act unless the report is a ‘founded report’ or unless an investigation by the appropriate child protective service determines that the report is an ‘indicated report.’ ” Id. § 2203.

The Act also provides that the subject of a report may at any time request the agency to expunge its records on the grounds of inaccuracy. See id. § 2215(d). The statute defines expunge as “to strike out or obliterate entirely so that the expunged information may not be stored, identified, or later recovered by any means mechanical, electronic or otherwise.” Id. § 2203.

DeLong later made such a request but on April 30, 1986, his petition was denied. On May 5, 1986, he filed an appeal of this decision to the appropriate administrative agency. While DeLong’s appeal was pending, CYS filed a petition to initiate proceedings in juvenile court.

At the start of the hearing in juvenile court, appellant’s attorney, Ambrose Campana, objected, claiming that the court lacked jurisdiction. This exchange ensued:

MR. CAMPANA: Your Honor, I would like to place my objection to these proceedings on the record. We’re proceeding under the child protective services act, as I understand it, for the purpose of determining whether or not the report of child abuse filed with this county’s family and children’s welfare service in April of 1985, is a, quote, founded report as defined by the child protective services act. And additionally if there is a founded report that this Court make a finding as to who the alleged child abuser is.
I object to these proceedings, Your Honor, because I don’t think that the child protective services act encompasses jurisdiction of that sort. Additionally under the child protective services act a hearing is presently scheduled in Harrisburg for July of 1986, upon Kenneth DeLong’s, the father in this case, request for a hearing to expunge a record that was filed against him on — in these circumstances. The report that he’s asking to be expunged is an indicated report of child abuse perpetrated by him upon his minor son; and for those reasons, Your Honor, I place my objection on the record to those proceedings.
THE COURT: Do you have a position as to how the Court is to determine a founded report since the definition includes a judicial adjudication, other than proceeding such as those initiated today?
MR. CAMPANA: No, Your Honor, I do not.
THE COURT: Thank you.
MR. CAMPANA: Apparently the act indicates a judicial determination and, of course, that’s only by a judge. And I can’t — I cannot argue, Your Honor. I think that the Court’s authority doesn’t extend beyond the definition of founded report that was just read by the Court from the child protective services act.

CYS responded that it was not proceeding under the Child Protective Services Act but under the Juvenile Act, 42 Pa.C.S. §§ 6331 et seq., though it was not requesting a determination of dependency or delinquency. The court did not resolve this issue but allowed the parties to proceed.

At the hearing, James Rinck of CYS and Dr. Robyn E. Johns, a clinical psychologist who had examined the child, both testified that they believed R.M.R. had been sexually abused. On June 30, 1986, the court issued an order substantiating the allegations of abuse. The trial court’s order denying DeLong’s motion for post-trial relief stated that appellant DeLong was not a party to the action and had no standing to challenge the result. The court then wrote, assuming that DeLong does have the requisite stand-, ing, his motions are denied. DeLong then appealed to this court.

On July 1, 1986, CYS changed the original “indicated” report to a “founded” report. Also around this same time, DeLong’s appeal of the denial of his expungement request was heard by a hearing officer of the Department of Public Welfare (“DPW”). DPW refused to expunge what by then was a “founded” report of child abuse.

Appellant presents two issues for our review: (1) whether the court of common pleas properly exercised jurisdiction over this matter; and (2) whether the court committed reversible error by improperly admitting hearsay evidence. Because of our disposition of this case, we need not address these issues separately.

Appellant claims that the court of common pleas lacked subject matter jurisdiction over this case. He states that the Child Protective Services Act (“CPSA”), 11 P.S. § 2201 et seq., defines a founded report as a report made after a judicial adjudication of child abuse. He argues that this provision means a judicial adjudication pursuant to a statute other than the CPSA. DeLong asserts that the CPSA does not provide an independent means to adjudicate child abuse.

Appellee CYS disagrees. It argues that the Act should be construed to allow the appropriate agency to request an adjudication of child abuse from a court. It claims that the CPSA enlarges the jurisdiction of our juvenile courts so that they may now make determinations of dependency, delinquency and child abuse.

The trial court apparently adopted still another interpretation. The judge’s exchange with appellant’s counsel indicates that he believes that the CPSA itself provides for judicial determinations of child abuse.

Initially, we note that the appellee’s interpretation of the CPSA has already been rejected by this court. In In re M.B., 356 Pa.Super. 257, 514 A.2d 599 (1986), a panel of this court held that the Juvenile Act envisions actions for dependency and delinquency but does not include a separate action for child abuse. The M.B. court found that the CPSA, as a separate and distinct statute, does not alter the jurisdiction of the Juvenile Act. Id., 356 Pa.Superior Ct. at 262, 514 A.2d at 601. Our review of this issue leads us to a similar conclusion.

As outlined above, resolution of this appeal hinges upon statutory interpretation. In Pennsylvania, courts must follow the rules of statutory construction as provided by our legislature. See 1 Pa.C.S.A. § 1921. This section states:

(a) The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.
(b) When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.
(c) When the words of the statute are not explicit, the intention of the General Assembly may be ascertained by considering, among other matters:
(1) The occasion and necessity for the statute.
(2) The circumstances under which it was enacted.
(3) The mischief to be remedied.
(4) The object to be attained.
(5) The former law, if any, including other statutes upon the same or similar subjects.
(6) The consequences of a particular interpretation.
(7) The contemporaneous legislative history.
(8) Legislative and administrative interpretations of such statute.

Id.

The statute in question is far from explicit on the relevant issue. Nowhere does it state that it creates an independent action for child abuse. As a result, we must examine the statutory language, structure, and goals and the probable consequences of each proffered interpretation in light of the' Act’s legislative and administrative history and interpretation.

Section 2202 of the Act states that its purpose is to encourage more complete reporting of suspected child abuse and to establish in each county a child protective service capable of investigating such reports swiftly and competently, providing protection for children from further abuse and providing rehabilitative services for .children and parents involved so as to ensure the child’s well-being and to preserve and stabilize family life wherever appropriate.

11 P.S. § 2202.

Toward that end, the Act requires that certain persons such as doctors or school teachers must report suspected child abuse. Id. § 2204. The Act also establishes reporting procedures and a mechanism whereby an abused child may be taken into protective custody. Id. § 2208.

Under the statute, DPW must keep a central registry of all reports of child abuse. This information is to be confidential but may be used to aid law enforcement officials or local child protective service agencies, which are given specific legal and remedial duties under the law. See id. §§ 2214-17. A certification from DPW that an applicant has not been named in the registry is necessary whenever a person applies for a child care position. Id. § 2223.1.

The thrust of the Act is to create a comprehensive system for the reporting and treatment of child abuse cases. The Act explicitly provides for court proceedings in two instances. When an appropriate person takes an abused child into protective custody, the child protective service may petition the court to extend protective custody beyond the 24-hour period specified in the law. See id. § 2208(a)(2).

In § 2223(b), the Act states that:
(b) The court shall have the duty, upon consideration of the petition of any attorney for the child, to order a local child protective service or other agency to establish and/or implement, fully and promptly, appropriate services, treatment, and plans for a child found in need of them. Additionally, the court, upon consideration of the petition of any attorney for the child, shall have the duty to terminate or alter the conditions of any placement, temporary or permanent, of a child.

These are the only provisions in the statute which clearly establish that the Act may be used as an independent vehicle to initiate court proceedings. The abbreviated emergency procedure for protective custody under § 2208, is akin to an action for a preliminary injunction and may hardly be considered an adjudication of child abuse. It is designed to be a temporary, stopgap measure until the more time-consuming procedures under the Juvenile Act can be implemented. As 11 P.S. § 2208(c) provides:

(c) In no case shall protective custody under this act be maintained longer than 72 hours without a detention hearing. If at the detention hearing it is determined that protective custody shall be continued, the child protective services agency shall, within 48 hours file a petition with the court under the Juvenile Act.

Similarly, § 2223(b) deals with children in need of social services and/or treatment. The court may feel that the child and his family need help but there may exist insufficient evidence to prove that a particular individual has abused the youngster. If a court may order services only when abuse has been proven, the Act will be unable to accomplish its remedial purposes. The agency will be foreclosed from intervening before a situation reaches the crisis stage and cannot be resolved absent legal proceedings. This is contrary to the express purpose of the statute: “to preserve and stabilize family life wherever appropriate.” Id. § 2202.

Other sections of the Act may plausibly be interpreted as creating an action for child abuse. In § 2217(9), the Act empowers the local agency to initiate appropriate court action if the agency’s offer of social services is refused by the family of an abused child.

Section 2222 provides specific procedural and evidentiary rules which must be followed “in child abuse proceedings in juvenile or family court____” This provision appears to take for granted the existence of a separate “child abuse” proceeding.

The definition of “founded” report may also be construed as lending support to the appellee’s position. As previously discussed, a report is founded if there has been a judicial adjudication of child abuse. Logically, there must be some means to make that adjudication. Otherwisé, the legislature provided for a report which cannot be made. We will not interpret a statute in an absurd or unreasonable manner. Valley Forge Industries v. Armand Constr., Inc., 38 Pa.Commw. 603, 606, 394 A.2d 677, 678 (1978). See also 1 Pa.C.S.A. § 1922(1).

Section 2223(a) of the statute states that “when a proceeding has been initiated alleging child abuse,” the court must appoint a guardian ad litem for the child. Prior to its amendment in 1982, this section read, “when a proceeding has been initiated arising out of child abuse” (emphasis added). This difference is significant. Previously, the statutory language contemplated that the relevant action need result only from an incident of child abuse. It did not specify what the proceedings would entail. As long as child abuse was involved, the statute applied in actions brought under the Protection from Abuse Act, 35 Pa.C.S.A. § 10182, criminal abuse or dependency proceedings under the Juvenile Act, 42 Pa.C.S.A. § 6341.

For the amended section to apply, the complainant must allege child abuse. This envisions an action wherein the complaint may contain a specific enumeration of this offense.

Viewed in a vacuum, the Act intimates that a specific, independent action for child abuse is within its aegis. But our analysis does not take place in a vacuum. Section 2223’s direction that child abuse must be specifically alleged is actually consistent with a finding that the Act does not permit an independent action for abuse. If such an action were permitted, the statute should logically read “when a proceeding has been initiated for child abuse.” The Agency would not need to be reminded to specifically allege that abuse has occurred. Logically, the legislature desired such a specific allegation because the final adjudication might be for dependency. If that finding is based upon a specific allegation of abuse, DPW might be entitled to place a founded report in its files. If abuse has not been alleged, the broad finding of dependency will not support that type of report.

An action “for” a legal principle is different from an allegation of that principle. For example, a person may bring an action in tort for bad faith refusal to pay insurance benefits. Or, that person may “allege” that refusal as part of a contract action. Stating that it is sometimes permissible to make the allegation does not necessarily mean that it constitutes a cause of action. Thus, stating that child abuse may be “alleged” does not mean that there exists an independent action “for” child abuse.

This interpretation is consistent with the Act’s definition of a “founded” report. The report is one made after an adjudication of child abuse. The statute does not specify that the adjudication must be made under the CPSA. It may have been pursuant to the Protection from Abuse Act, a dependency proceeding, or a criminal action. If the legislature intended that a founded report should be based on an adjudication under the CPSA, logic dictates that that eminent body would have so stated.

In light of this analysis, it is apparent that the procedural requirements of § 2222 are intended to apply when child abuse is alleged pursuant to a recognized cause of action. As discussed below, this provision resulted from the legislature’s concern that the rules of evidence in a deprivation proceeding made proof difficult when the proceeding was based on child abuse. Our legislators wished to make it easier to prove dependency based upon child abuse. This is directly contrary to the position that they intended to create a separate and distinct action.

Section 2217 is susceptible to a similar interpretation. The legislature stated that the agency may take “appropriate” action. That might be an action for protective custody or one of the proceedings noted above. Basing an entirely new cause of action upon the term “appropriate”, would be a rather broad statutory interpretation. Such a vague term is far too slight a peg to support such a weighty decision.

It is undeniable that the statute does not clearly spell out the existence of a child abuse action. Yet, it deals with matters of the utmost seriousness. If a person is adjudicated to have committed child abuse, his reputation will have been smeared and his good name blemished. Forever more, he will appear to the people of his community with a red letter emblazoned on his forehead. The legislature has directed that penal statutes must be strictly construed. 1 Pa.C.S.A. § 1928(b)(1). This law does not provide a penal sanction such as a prison term or a criminal record. It does provide a means for the state to destroy a man’s reputation and home. Because of the importance of the interests involved, we must adhere to a strict construction of the statute. This cautions us against implying the creation of a cause of action where none has been explicitly provided.

As § 1921 directs, the consequences of each viable interpretation must be examined. If we were to hold that an action for child abuse may be brought under the Juvenile Act the procedures of that Act would govern the action. Proceedings under the Juvenile Act are initiated by the filing of a petition which sets forth the facts bringing the child within the definition of “dependent” or “delinquent”. 42 Pa.C.S.A. § 6334. In order for us to find that the Juvenile Act encompasses an additional action for “child abuse” we must find that the above-cited sections have been amended by implication. We doubt that our legislature would attempt to accomplish this result in such an indirect manner as hiding the amendment in a separate statute and couching it in vague terms.

Under the Juvenile Act, a finding of dependency is often the first step before the court orders disposition of the child. 42 Pa.C.S.A. § 6338. A court order of dependency without disposition is a non-appealable interlocutory order. Commonwealth v. Van Bashkirk, 303 Pa.Super. 148, 152, 449 A.2d 621, 624 (1982). A court determination of child abuse without disposition would also be an interlocutory order. But the effect of the two orders is quite different. An adjudication of child abuse necessarily smears the reputation of the accused party. Though his good name will have been trampled, he will not be entitled to appeal. He will be suspended in legal limbo with no means of vindication. This is intolerable. If we allow a man’s name and reputation to be destroyed via a civil proceeding, fairness dictates that he should have some further recourse.

Even this interpretation is preferable to that offered by the trial court in this case. Under the Juvenile Act, all necessary parties receive notice of the hearing and have a right to counsel, the right to introduce witnesses, and the right of cross-examination. 42 Pa.C.S.A. § 6331 et seq. The . trial court’s order stated that the appellant was not a party to the proceeding. This is a plausible result if the CPSA is interpreted as creating a cause of action for child abuse, independent of the Juvenile Act. Apparently, the court inferred that the resulting action would concern the child and the agency and not the accused child abuser. This interpretation not only severs the accused’s right to appeal, it eviscerates any rights he may have to participate in the initial adjudication. His name will be in a government file as an adjudicated child abuser but he will not have been a party to the adjudication and will have had no right to appeal the determination. He may bring an administrative action for “expungement” but he then bears the burden of proof. The term travesty is too mild to describe this situation.

The Act is very specific in most instances. Section 2208 states that if protective custody is to be maintained after the detention hearing, the agency must proceed under the Juvenile Act. See 11 P.S. § 2208(c). In this instance the legislature clearly specified that the Juvenile Act is controlling. It is logical to assume that if the lawmakers intended that other proceedings under the Child Abuse Act should be brought under the Juvenile Act, they would have specified this point in a manner similar to that used in § 2208.

The purpose of the Act may also be achieved without the creation of an independent action for abuse. As noted previously, the purposes are to encourage reporting of abuse, protecting children from further abuse and providing rehabilitative services. See 11 P.S. § 2202.

Each of these goals is attainable without resort to adjudications of child abuse. Branding someone a child abuser is not rehabilitative. It is hard to envision how a civil “child abuse” action adds anything to the overall statutory scheme. Viewing the Act without this action, the law still provides independent means to encourage reporting and expedite protective custody.

Furthermore, the criminal law provides a means to punish child abusers and protect society from their anti-social actions. Under the Juvenile Act, the state may remove a child from a perilous home situation. The Protection from Abuse Act provides a mechanism for emergency relief in this type of case. These proceedings comprise a comprehensive scheme to combat abuse which also affords the accused the full panoply of his constitutional rights. Not only would a civil child abuse action under the CPSA fail to add to this scheme, for the reasons discussed above, it would threaten the rights of the accused person.

Also, the addition of this action would actually alter the statute’s effect. Its focus is on protection of the child and the preservation of family harmony. Inclusion of an abuse action would make the statute penal in nature. Instead of protection of the child, punishment of the offender becomes paramount. This alteration is unwise and unnecessary. As noted, the criminal law and the Juvenile Code provide ample means to punish these offenders. The law anticipates that local agencies will devote their limited resources to protect children and rehabilitate offenders. Diversion of these precious resources to criminal-style prosecutions will necessarily diminish the time and money available to pursue these other, more important goals.

The legislative history of the Act supports this conclusion. In 1974, when the bill was first proposed, its sponsor, Senator Michael O’Pake, stated that the statute would aid juvenile court judges in deprivation proceedings. He stated:

Equally important, the cries from child protective workers and juvenile court judges is that they cannot in a deprivation proceeding satisfy themselves that it was a child abuse situation, rather than an accident because, as you know, the innocent victim cannot testify. This bill would shift the burden of proof ... It would say that the battered child would be prima facie evidence of a beating, and then the persons most logical to testify, namely the accused, in the deprivation proceeding, would be asked to come forward and respond and explain away the battering or the abuse.
Now, that and the burden of coming forward with proof would apply only to the deprivation proceeding in juvenile court and not to the criminal proceeding, for obvious reasons.

Pa. Senate Journal 1797 (April 22, 1974).

This speech demonstrates that the abuse allegations were to be part of a deprivation proceeding in juvenile court. The bill was passed by the legislature but vetoed by Governor Shapp.

In 1975, the legislation was reintroduced in different form. The legislative debates exhibit a concern over the definition of child abuse. Nothing in the debates indicates that an additional cause of action was created. Senator DiCarlo, one of the bill’s most forceful spokesman, emphasized that the new law altered the Juvenile Act only in that it expanded the availability of protective custody. He stated:

As far as his questions about the Juvenile Act, what I have said we have done is expand the protective custody section under child abuse, under the child abuse legislation in front of us, specifically setting a means test defining what an abused child is. That is spelled out very specifically, if a child is physically abused, if he is sexually attacked or molested.

Pa.Senate Journal 3001 (Oct. 15, 1975).

Senator O’Pake’s 1975 statements also demonstrate that the law was intended as a supplementary aid to the provisions already in the Juvenile Act. He stated:

Mr. President, the second attack made by those who oppose the bill was that the bill is punitive rather than rehabilitative in nature. Well, anyone who reads the bill should understand that this bill applies only to Juvenile or Family court; we are not changing one iota of the law in Criminal Court. The accused will still have all the constitutional rights that any accused has before any subsequent criminal proceeding. We are concerned about the travesties, the injustices that occur in Juvenile Court when, because of the technical rules of evidence, case after case is dismissed, and those babies are returned to those homes and the caseworkers know and the judges know, and everyone else concerned knows, that the next time that baby comes back the abuse is going to be much worse than it was the first time.

Id. at 291.

These comments indicate that the Act did not create any new causes of action. It was designed to protect children but still promote family harmony. Its only relation to the Juvenile Act was to make it easier to prove deprivation based on child abuse. This point is repeated throughout the debates. Nowhere is a new proceeding for child abuse mentioned. Not only do the language and structure of the Act support a finding that the Act lacks such an action, this result is buttressed by the legislative history.

In 1984, the Act was amended. It was proposed that the definition of a founded report should be narrowed to include only persons convicted of a crime involving child abuse. Opponents of the proposed amendment stated that a person placed on ARD has not been convicted of a crime but is still an adjudicated child abuser. They argued successfully that such persons should not be allowed to work with children and thus, are the proper subjects of “founded” reports. No one suggested that the Act itself provided a means to adjudicate child abuse. See generally Pa. House Journal at 2344-45 (Nov. 27, 1984). Yet, this would have been the appropriate time to raise the issue. If the Act. had contained this mechanism, the proposed amendment would have eliminated it. But no one rose to defend its continued existence. The logical conclusion is that it had no defenders because there is no such provision.

A 1979 report to the legislature on the Act also supports this view. The report was prepared to examine problems encountered in the implementation of the Act. It stated:

Since the Juvenile Act provides no statutory basis for a judicial finding of abuse, founded cases are actually adjudicated “dependent” based on abuse per Act No. 124.
When Act No. 124 was drafted, it was intended that the existing procedures for bringing a child within the jurisdiction of the juvenile court division would be utilized, rather than erecting a procedural superstructure for the limited purpose of formalizing the founded status of an abuse complaint.

Joint State Government Report on The Child Protective Services Law 64, 78 (January 1979).

Recognizing that this has caused confusion, the report recommends:

Place all requirements relating to court procedures for children in the Juvenile Act and revise these requirements to facilitate the processing of protective service cases. Provide full procedures for petitioning for an abuse ruling in Act No. 124. Clarify status classification for dependency rulings which are not based upon child abuse as defined in Act No. 124.

Id. at 82.

These proposals demonstrate that: (1) the Juvenile Act does not provide for specific adjudications of child abuse; and (2) the Child Abuse Act does not provide any mechanism to adjudicate child abuse. The report proposed that this situation should be changed.

But the report’s recommendations were not adopted. It is hardly appropriate for local agencies to amend the Act by fiat, substituting a more convenient interpretation of the statute for one that was intended by the legislature.

Scholarly commentary on the Act supports our view. The Children’s Rights Chronicle, in a thorough examination of the Act, stated:

Child protective services in many Pennsylvania counties, in cases of child abuse, want to ensure that the court makes a particularized finding (or adjudication) of abuse so that the original child abuse report will be “founded.” Although such language in the petition may be helpful, it is not a pre-condition for a report to be “founded.” The report will be “founded” if the court makes clear that the adjudication of dependency is based on a finding of abuse. 11 P.S. § 2203. Neither the Juvenile Act nor the CPSL provides explicitly for “an adjudication of abuse pursuant to the CPSL,” which is so often sought by protective services. The final adjudication is one of dependency, not abuse.

3 Children’s Rights Chronicle 3 (Nov. 1984). See also Beatty and Woodley, Child Molesters Need Not Apply: A History of Pennsylvania’s Child Protective Services Law and Legislative Efforts to Prevent the Hiring of Abusers by Child Care Agencies, 22 Dick.L.Rev. 669 (1985) (close examination of history and purpose of Act presents no evidence that “child abuse” action was created).

Appellee asserts that this issue has already been judicially settled in its favor in In re M.B., 356 Pa.Super. 257, 514 A.2d 599 (1986). This assertion is incorrect. In M.B., a petition alleging child abuse was filed against the father. The juvenile division of the court of common pleas found the allegation of abuse “unfounded” but determined that the child was dependent under the Juvenile Act. Id., 356 Pa.Superior Ct. at 259, 514 A.2d at 600.

On appeal, this court reversed, holding that it violated due process to proceed under the Juvenile Act when the petition was filed under the Child Protective Services- Law. The court stated:

The issues before the Court in an abuse and dependency proceeding are distinct. The proof and argument on one would not necessarily match the proof and argument for the other. In an abuse case, the evidence revolves around the alleged incident of abuse, and the decision which must be reached is whether that evidence meets the standard defined in the Child Protective Services Law.
On the other hand, a dependency proceeding focuses on whether the child at the time of the proceeding is without proper parental care or control. Such differences manifest the unfairness inherent in allowing a child to be declared dependent after a proceeding under the Child Protective Services Law when no petition was ever filed under the. Juvenile Act.

Id., 356 Pa.Superior Ct. at 260, 514 A.2d at 601.

The court held that the two Acts are separate and distinct and that the Juvenile Act does not provide for a cause of action for abuse. This is hardly favorable to appellee’s argument. Appellee claims that the M.B. court interpreted the CPSA as providing an action for child abuse. The court did nothing of the kind. It was not faced with that issue. The allegation of abuse was dismissed at the trial level. This court was in no position to approve or disapprove of the propriety of such allegations. Its holding that the trial court did not have jurisdiction under the Juvenile Code is not an implicit finding that jurisdiction was proper under the CPSA. Based on the preceding analysis, it is apparent that jurisdiction was not present under the Act because the Act does not provide an independent means to adjudicate child abuse. Nor does the Juvenile Act.

Under the Juvenile Act an allegation of child abuse must be made as part of a dependency proceeding. If the legislature is displeased with this result, it must amend the relevant statutes. This court is constrained from taking such an action by the nature of the judicial role in our governmental system. We are not the promulgator of statutory law, only its interpreter. We seek to divine the intent of the legislature and apply it in a given situation. Judges who overstep the bounds of their authority become Platonic Commissioners, a role which is anathema to our democratic system.

The order of the Court of Common Pleas of Snyder County is reversed and the Department of Public Welfare is hereby ordered to remove the founded report based on that court order which is presently in its file. Jurisdiction relinquished.


source: Caselaw Access Project

author: HESTER, Judge:

license: Public Domain

text:
    531 A.2d 1
    COMMONWEALTH of Pennsylvania v. Helen Paula SACCO, Appellant.
    Superior Court of Pennsylvania.
    Argued June 10, 1987.
    Filed Aug. 5, 1987.
    Reargument Denied Sept. 28, 1987.
    Petition for Allowance of Appeal Denied Feb. 23,1988.
    George C. Entenmann, Pittsburgh, for appellant.
    Andrea F. McKenna, Assistant Deputy Attorney General, Harrisburg, for Com., appellee.
    Before CIRILLO, President Judge, and OLSZEWSKI and HESTER, JJ.
   HESTER, Judge:

Helen Sacco, appellant, was sentenced to probation for a period of one year and to pay a $1000 fine plus costs following her non-jury conviction of seven counts of failing to file sales tax returns and to remit sales taxes pursuant to 72 P.S. § 7268(b). We conclude that inasmuch as she filed the returns and paid the tax prior to the institution of the within criminal proceedings, she did not violate the provisions of the statute. We reverse.

On February 5, 1986, appellant was charged with failure to file tax returns and failure to remit sales taxes due on August 15, 1983, September 15, 1983, September 20, 1983, October 20, 1983, November 20, 1983, and January 20, 1984, which had been collected in the operation of Piccolo Piccolo, her restaurant in Pittsburgh. At trial, the supervisor of the sales tax division of the Pennsylvania Department of Revenue testified that all the returns were filed on February 23, 1984, and all taxes due, including penalties and interest, were paid by April 16, 1984. Notes of testimony, 5/16/86, at 16-18. Notwithstanding that fact, appellant was convicted under the following statutory language:

§ 7268. Crimes
(b) Other Crimes____ [A]ny person who shall wilfully fail, neglect or refuse to file any return or report required by this article or any taxpayer who shall refuse to pay any tax, penalty or interest imposed or provided for by this article, ... shall be guilty of a misdemeanor, and, upon conviction thereof, shall be sentenced to pay a fine not exceeding one thousand dollars ($1000) and costs of prosecution, or undergo imprisonment not exceeding one year, or both.

72 P.S. § 7268(b) (emphasis added). Contrast with section 7203 of the Internal Revenue Code of 1986.

Appellant did not fail to file the required returns, nor did she refuse to remit the required taxes. She performed these actions nearly two years prior to the institution of criminal action. Accordingly, her convictions cannot stand.

. The Commonwealth argues that section 7268(b) should be construed as requiring the “timely” filing and remittance of taxes. In other words, it would have section 7268(b) read: “any person who shall wilfully fail, neglect or refuse to file any return or report required by this article [at the time or times required by law] or any taxpayer who shall refuse to pay any tax, penalty or interest imposed or provided for this article [when due], ... shall be guilty of a misdemeanor.”

The Commonwealth provides no persuasive authority for judicial alteration of statutorily defined criminal conduct. Its reliance on 18 Pa.C.S. § 105 is seriously misplaced. Section 105 provides that “[t]he provisions of this title shall be construed according to the fair import of their terms.” The official comment explains that the section alters the common law rule that definitions of criminal conduct must be strictly construed. The comment further explains:

There is no valid reason why penal statutes should not be reasonably construed according to the “fair import of their terms____” Such a rule is appropriate for a modern penal code which carefully defines crimes and defenses rather than leaving their definition to several centuries of common law.

18 Pa.C.S. § 105, official comment — 1972 (emphasis added).

The Commonwealth’s argument is flawed in that it asks us to supply omitted language, not to give existing language its fair meaning. Appellant’s conduct, tardiness, does not fall within the conduct proscribed by the legislature in 72 P.S. § 7268(b), which sets forth a carefully defined crime.

To the contrary, appellant’s mischief is addressed by 72 P.S. §§ 7265 and 7266. These sections provide non-criminal sanctions for tardiness in the form of interest and penalties. The legislature thus has imposed monetary sanctions for tardy taxpayers and other, more serious, criminal sanctions for taxpayers who do not pay their taxes, remit taxes withheld, or file returns. Appellant falls into the former category.

In Commonwealth v. Lobiondo, 501 Pa. 599, 462 A.2d 662 (1983), the supreme court directed us to construe statutes defining criminal conduct together, stating that they are necessarily interrelated. It further guided us by ruling that legislative distinctions cannot be judicially ignored. In this case, the distinction between tardiness and nonfeasance has been made.

Case authority cited by the Commonwealth is unpersuasive; it involves interpretation of existing statutory language, not supplementation of it. See Commonwealth v. Duncan, 456 Pa. 495, 321 A.2d 917 (1974) (whether prowling inside as opposed to outside premises was prowling “around” the premises); Commonwealth v. Mason, 381 Pa. 309, 112 A.2d 174 (1955) (whether a barter, transaction involved a “sale” of stock); Commonwealth v. Butler, 189 Pa.Super. 399, 150 A.2d 172 (1959) (whether a partially hidden weapon was “concealed”).

The judgment of sentence is vacated and appellant discharged.

      . Section 7203 reads:
      Willful failure to file return, supply information or pay tax.
      Any person required under this title to pay any estimated tax or tax, or required by this title ... to make a return, ... who willfully fails to pay such estimated tax or tax, [or] make such return, ... at the time or times required by law or regulations, shall, in addition to other penalties provided by law, be guilty of a misdemeanor....
      (Emphasis added).

      . 18 Pa.C.S. § 105 applies to 72 P.S. § 7268 pursuant to 18 Pa.C.S. § 107, which makes 18 Pa.C.S. § 105 applicable to criminal offenses defined under any statute.


author: POPOVICH, Judge:

text:
    531 A.2d 2
    CROZER-CHESTER MEDICAL CENTER, a Pennsylvania Not for Profit Corporation, and Reproductive Health and Counseling Center, a Pennsylvania Corporation v. Thomas MAY, Miriam Andrews, Joan E. Andrews, Robert E. Moran and Mary Ann Moran. Appeal of Gerald LYNCH, et al., Appellants.
    Superior Court of Pennsylvania.
    Argued April 22, 1987.
    Filed Aug. 21, 1987.

      Joseph D. Branca, Aston, for appellants.
    Donald T. Petrosa, Media, for Crozer-Chester, appellee.
    Donald A. Browns, Media, for Reproductive Health, appellee.

      Before POPOVICH, JOHNSON and HESTER, JJ.
   POPOVICH, Judge:

This is an appeal from the “Adjudication Of Civil Contempt” entered by the Court of Common Pleas of Delaware County on August 25, 1986, (later reduced to judgment) against forty-eight (48) defendants/appellants. We affirm.

This case stems from a decree nisi entered by the lower court on February 10, 1984, enjoining the five individuals whose names appear in the caption of this case and “all others acting in concert with them” or “otherwise hav[ing] reasonable notice” of the court’s decree precluding, in essence, entry onto or remaining upon the premises of the plaintiffs (Crozer-Chester Medical Center and Reproductive Health and Counseling Center) for the purpose of “interfering or accosting individuals seeking services” from the plaintiffs, and procuring others to do the. same. The decree nisi was made final following the dismissal of exceptions on November 9, 1984. An appeal to Superior Court resulted in an affirmance of the injunction in its entirety.

On March 29, 1986, counsel for the plaintiffs appeared in court and alleged that the defendants, whose names appear in footnote 1,

... acted in violation of the Court’s order ... by engaging in ... protest on the property of th[e plaintiffs] ... by actually entering and occupying [one of the plaintiffs’] building[s] ____ They ... d[id] it by blocking the doorways and entrances ... and by otherwise acting in a manner which was disruptive to the procedures that were going on at that facility.
The Delaware County Sheriff’s Office was called ... [and t]he Defendants were read the injunction[] and refused to leave. They had to be arrested and removed from the premises.

Based on the aforesaid, which was asserted to be in violation of the court’s February 10th decree, counsel for the plaintiffs orally “filed” a petition for contempt against the defendants and asked that it be made returnable from the bench. The court did so and made the rule returnable for April 3, 1986.

Hearings were conducted over a period of two months (i.e., April 3, 11 & May 16, 27, 28 & 29 of 1986), at the conclusion of which the court adjudged the forty-eight defendants named in footnote 1 to be in civil contempt of his February 10, 1984 decree, made final on November 9, 1984, by their conduct on the grounds of the plaintiffs on March 29, 1986. This timely appeal followed.

We note at the outset the appealability of the order in question given the inclusion of sanctions (in the form of a pecuniary penalty) in the court’s contempt order. See Schnabel Associates, Inc. v. Building & Construction Trades Council of Philadelphia and Vicinity, AFL-CIO, 338 Pa.Super. 376, 487 A.2d 1327 (1985).

The defendants raise six (6) issues for our consideration which, having been preserved by proffering them in the court below, will be discussed seriatim.

First, the defendants complain that, because they were neither named parties in the injunction nor shown to have acted in concert with the five named parties whose names appear on the face of the injunction, the court erred in holding them in contempt.

The law is quite clear that:

... persons not parties to an injunction order are bound to observe its restrictions when those restrictions are known to such persons to the extent that they must not aid and abet its violation by others. In addition, if persons are not parties to the injunction order, but its terms are known to them and they are within the class intended to be restrained, they may not violate the injunction’s restrictions.

Neshaminy Water Resources Auth. v. Del-Aware Unlimited, Inc., 332 Pa.Super. 461, 469, 481 A.2d 879, 883 (1984) (Citation-omitted; emphasis in original).

With the preceding in mind, our review of the six volumes of testimony, generated during the contempt hearings below, evidences that at .approximately 8:00 a.m. on the 29th day of March, 1986, some fifty (50) individuals (“pro-lifers”) came onto the private property of the plaintiffs. In particular, the Reproductive Health and Counseling Center (RHCC) was forcibly entered.

Delaware County Deputy Sheriffs Robert Masho and Steven Turek had been assigned by their superiors to the RHCC building “to enforce” the February 10th injunction, and they were on the second floor of the building at 8:00 a.m. When they observed the group making their way to the RHCC, the two Deputy Sheriffs ran down to the first floor lobby and noticed members of the plaintiffs’ staff attempting to hold back the group of pro-lifers and telling them to leave.

Deputy Sheriff Masho told those pro-lifers who had made-it into the building that they were “in violation of an injunction ... and that if they didn’t leave, they might be arrested.” The Deputy’s repetition of the warning only caused the crowd to push harder against the doors of the RHCC.

Local police arrived on the scene and assisted the Deputy Sheriffs in rounding up those pro-lifers who had gained entry and were running loose in the building and locking themselves in the various examination rooms chanting, singing and praying to stop the abortions taking place on the premises. Needless to say, the plaintiffs’ operations were “interrupted” during the presence of the pro-lifers.

Those pro-lifers who left willingly were released, but those who “fought” were arrested (initially 19 in number), placed in the Sheriff’s bus and transported to the local station, where they gave their names and addresses as they were being processed and formally charged. (See Exhibit P-10)

At approximately 9:45 a.m., Frank Mitarantonda, Chief Deputy for the Delaware County Sheriffs Department, arrived on the scene, which, as described by one of the Deputy Sheriffs, was still pure “bedlam”. After discussing with the other police personnel on the site as to what to do, Chief Deputy Mitarantonda, sometime between 11:00-11:30 a.m., read the court’s injunction, save for point 9, over a loudspeaker (with a 100 watt amplifier) resting atop a police vehicle situated about 25-40 yards away from the RHCC building.

When those present and in ear-shot of the loudspeaker refused to leave peaceably, they were arrested and taken to the police station, as was the earlier group, and processed for arrest. And, like the former group of 19 or so pro-lifers, this second group also gave their names and addresses to the police. (See Exhibit P-14)

We conclude that the defendants had actual knowledge of the court order, since it was read to them and orally informed of the same by Deputy Sheriff Masho. Despite this, the defendants acted in concert or combination with others to prevent or interfere with the operation of the plaintiffs’ facility. See Neshaminy, supra.

The second issue raised by the defendants concerns the claim that their privilege against self-incrimination was violated by comment upon, or consideration of, their failure to testify.

The short-hand response to the argument made is, initially, that the hearings related to whether the defendants were in civil contempt, it being the objective of the court below to assure compliance with its order entered “ ‘primarily for the benefit of a private party.’ ” Rulli v. Dunn, 337 Pa.Super. 613, 616, 487 A.2d 430, 431 (1985), citing Brocker v. Brocket, 429 Pa. 513, 522, 241 A.2d 336, 340 (1968). Such being the case, “while a defendant in a civil case may invoke the privilege [of the Fifth Amendment against self-incrimination] and it may not be used against him in any way in a subsequent criminal prosecution, the court in the civil case may draw any adverse inference which is reasonable from the assertion of the privilege.” City of Philadelphia v. Kenny, 28 Pa.Cmwlth. 531, 540-41, 369 A.2d 1343, 1349 (1977), cert. denied, 434 U.S. 923, 98 S.Ct. 401, 54 L.Ed.2d 281 (1977) (Emphasis in original).

The defendants’ third issue relates to the allegation that the plaintiffs failed to give them written notice of the charges lodged against them, and that these same plaintiffs failed to specify the legal nature of the contempt charge.

It is beyond cavil that “formal service of the order upon the alleged violators is not necessary prior to a contempt adjudication, as long as the parties had actual knowledge of the order.” Neshaminy, supra, 332 Pa.Super. at 470, 481 A.2d at 883.

Instantly, Deputy Sheriff Masho informed the first nineteen (19) to be arrested around 9:00 a.m., after forcing their way into the RHCC building, that they were in violation of a court injunction and would have to leave the premises or face arrest. Knowledge of this communique is evidenced from the Deputy Sheriff’s reference to members of the pro-lifers answering back that they knew nothing about any injunction, and they were not leaving because killings were taking place on the premises. .

The remaining arrestees/defendants were read the injunction over a loudspeaker by Chief Deputy Mitarantonda, and still the pro-lifers had to be physically removed from the grounds after being asked to disperse or face arrest. Thus, we find, in light of the record evidence on the matter of notice, that the defendants were adequately advised of the existence of a court order prohibiting their presence on the plaintiffs’ property for the purposes exhibited by their obstreperous behavior. Accordingly, the defendants will not be heard to plead ignorance of the order or lack of notice of its existence. To so hold would be to take a myopic view of the evidence to the contrary.

As for the defendants’ fourth argument that the five essential elements to an adjudication of contempt were not being adhered to, i.e., (1) a rule to show cause why attachment should not issue; (2) an answer and hearing; (3) a rule absolute (arrest); (4) a hearing on the contempt citation; and (5) an adjudication of contempt, we disagree.

As noted by the Court in Rouse Philadelphia Inc. v. Ad Hoc '78, et al., 274 Pa.Super. 54, 417 A.2d 1248 (1979), cert. denied, 449 U.S. 1004, 101 S.Ct. 545, 66 L.Ed.2d 301 (1980), the five-step procedure is not necessary in those cases where the contempt proceedings are predicated upon the violation of an order which was served on the contemnor and entered after a full hearing on the merits. When this occurs, contempt proceedings may be commenced by attachment, and due process requires no more than notice be given of the alleged contravention and the opportunity to explain one’s defense.

Instantly, the contemnors were given notice as to the charges (i.e., by means of oral confirmation of being in contempt of a court order/injunction by police personnel on March 29, 1986); they were given timely notice and opportunity to answer and defend during the six days of hearings; and the proceedings are determined by this Court to have been fair and impartial. This is all that is required under the law, and no deviation having taken place herein as to those procedural matters requires that we deny the defendants’ due process complaint. See Neshaminy, supra.

The defendants’ two remaining issues, i.e., the plaintiffs’ alleged deliberate violation of the court’s sequestration order during the hearings and an assault on the sufficiency of the evidence, are not meritorious.

As to the purported intentional violation of the sequestration order by two of the numerous witnesses who testified on the notice element of the injunction to the plaintiffs, suffice it to say that the evidence of contempt was overwhelming, and, thus, any possible effect a deviation of the sequestration order could have had on the outcome of the case is de minimus. Cf. Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978).

Order affirmed.

      . The names of those defendants/appellants involved in this appeal are:
      1. Gerald Lynch 2. Howard Walton 25. Rita Bucky 26. Pasquale Varallo 27. Charles Mammucari 28. Roland Markun 29. Mary Bryne 30. Mary Anne Hayot 31. Anne Marie Breen 32. Patricia McNamara 33. Ellen Walton 34. John Martin 35. John O'Brien 36. Gregory Plata, Priest 37. Dolores McGrail 38. Gladys Dougherty 39. William Starrs 40. Robert Atkinson 41. Maureen Melly 42. Carolyn Killion 43. Kathleen Coll 44. Paul Neal 45. James Dempsey 46. Barbara Dempsey 47. Rosemary Moran 48. Joseph Coll 3. David Hoch 4. Dennis Sadler 5. Debra Baker 6. Richard Junod, Dr. 7. George Isajiw, Dr. 8. Harold Stoliker 9. Craig Combs 10. Roger Shepard 11. Robert Lewis 12. Walter Gies 13. Margaret Caponi 14. Anne Knorr 15. Ellen Jones 16. Thomas Mcllhenny 17. Thomas Herlihy 18. John Stanton 19. Henry Tenaglio 20. Norman Williams 21. Carl Knapp 22. Michael McMonagle 23. Joseph Wall 24. James Breen

      . The injunction, in its entirety, reads:
      AND NOW, to wit, this 10 day of Feb., 1984, it is hereby ORDERED and DECREED as follows:
      1. The Defendants, Thomas J. May, Miriam A. Andrews, Joan E. Andrews, Robert E. Moran and Mary Ann Moran, and each of them and all others acting in concert with them, and all others who may be shown a certified copy of this Court’s Decree or to otherwise have reasonable notice of the Court’s Decree arc enjoined and restrained from:
      1. Entering upon or remaining upon the premises of the Plaintiffs in the Borough of Upland, Pennsylvania, for the purposes of in any way interfering or accosting individuals seeking services from the Plaintiffs.
      2. Entering or remaining upon any part of the steps, porch or hallway of the building, house or the facility of one of the Plaintiffs, to wit, Reproductive Health and Counseling Center.
      3. Entering upon or remaining upon any part of the adjacent private parking lot and sidewalk for the use of the staff, employees, patients, business invitees and guests of the Plaintiffs.
      4. From photographing or attempting to photograph any staff member, employee, patient, prospective patient, business invitee oi guests of the Plaintiffs while such person is upon, entering oi leaving the property of the Plaintiffs, Crozer-Chester Medical Ccn ter, and Reproductive Health and Counseling Center at 15th and Upland Avenue in the Borough of Upland.
      5. From damaging in any manner the property of the Plaintiffs oi interfering with the Plaintiffs’ rights to use such property for all lawful purposes.
      6. From otherwise acting upon the private property of the Plaintiffs in a manner disruptive or intending to be disruptive of the operation of the Plaintiffs’ hospital and counseling services.
      7. From procuring another or others to do any of the acts herein enjoined.
      8. Any picketing which may be done by these Plaintiffs or others subject to this Decree outside the limits of the private property of these Plaintiffs and particularly at the entrance from the public street known as Upland Avenue at its intersection with Seminary Avenue, the private properly of the Plaintiffs, shall be limited to ten pickets at any one time and these pickets must be in constant motion at least five feet apart and shall not by any means whatever obstruct ingress and egress to the private property of the Plaintiffs by anyone, whether they be pedestrians or in conveyances.
      9. The parties hereto shail bear their own expenses, cost of litigation, counsel fees, and since no damages have been proven in this litigation, neither compensatory nor punitive damages arc awarded.
      The Office of Judicial Support is directed to enter this Decree Nisi and to give notice thereof to the parties or their counsel of record. If no Exceptions arc filed within ten (10) days, this Decree Nisi shall be entered as a Final Decree.

      . The order appealed reads, save for the names of the defendants appended to said order, as follows:
      ADJUDICATION OF CIVIL CONTEMPT
      AND NOW, this 25 day of Aug , 1986, upon consideration of the record, the evidence presented at hearings held beginning on April 3, 1986 and concluding May 29, 1986, and the Briefs submitted by counsel, it is hereby
      ADJUDGED and DECREED that the Defendants named on the attached list arc in civil contempt of this Court by reason of their going onto the property of Plaintiffs and otherwise acting in a manner violative of the Court’s Decree Nisi entered February 10, 1984, and Final Decree entered November 9, 1984; the conduct of the Defendants willfully violated the terms and conditions of the Decrees of this Court on March 29, 1986, and it is therefore hereby:
      ORDERED:

        1. That a conditional fine of S200100 be imposed upon each of the Defendants; however, each Defendant may purge himself or herself of the contempt and avoid the necessity of paying the fine by staying off the private property of Crozer-Chester Medical Center and Reproductive Health and Counseling Center in accordance with the Court's Decrees referred to above, so long as the Decrees remain in effect;
      2. Should sufficient evidence be brought before the Court that any of the Defendants has entered onto the private property of the Plaintiffs subsequent to the date of this Order, in violation of this Court’s Decrees, the Court will order immediate payment of the above fine and in default thereof, that Defendant will be sentenced to 15 days in the Delaware County Prison;
      3. Said future violation, or any other future violation, may also be the basis for a new Petition for Contempt;
      4. This Order shall remain in effect until further Order of this Court.


author: OLSZEWSKI, Judge:

text:
    531 A.2d 8
    COMMONWEALTH of Pennsylvania, Appellee, v. James QUIER, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 27, 1987.
    Filed Sept. 10, 1987.

      Bruce W. Weida, Allentown, for appellant.
    Emil W. Kantra, II, Assistant District Attorney, Allentown, for Com., appellee.
    Before CIRILLO, President Judge, and OLSZEWSKI and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

This is an appeal from an order denying appellant’s Post-Conviction Hearing Act (PCHA) petition following his guilty plea to third-degree murder, robbery and conspiracy. Appellant claims that trial counsel was ineffective: (1) for failing to advise him of the right to appeal the trial court’s “implicit denial” of his motion in arrest of judgment and for failing to effect such an appeal; and (2) for failing to pursue appellant’s petition for reconsideration of sentence and for failing to advise appellant of his right to appeal the sentence imposed by the trial court. Appellant asserts that because of counsel’s ineffectiveness, appellate review of his sentence was effectively foreclosed. We agree with appellant that counsel’s performance was deficient. We, consequently, have reviewed the attack on the sentence imposed and conclude that the claim is meritless. Accordingly, the judgment of sentence is affirmed.

In 1976, appellant was convicted by a jury of second-degree murder. Motions in arrest of judgment and for a new trial were timely filed and, by order dated March 7, 1978, the motion for a new trial was granted. That order, however, failed to mention and dispose of the motion in arrest of judgment. It is not questioned that appellant’s trial counsel failed to advise the appellant of his right to appeal the “implicit denial” of that motion. Consequently, the appeal period expired on April 9, 1978, with no appeal having been taken.

Appellant’s trial counsel was replaced by court order dated April 11, 1978. New counsel thereafter filed an appeal nunc pro tunc from the “denial” of appellant’s motion in arrest of judgment. That appeal was denied by the Pennsylvania Supreme Court on May 10, 1978, after indicating that the order was interlocutory. It was understood that the appeal would be reviewed after a final order was entered by the trial court.

Thereafter, the Commonwealth and appellant entered into plea bargaining negotiations and, on June 7, 1978, a plea agreement was entered. An extensive guilty plea colloquy was conducted during which appellant agreed, inter alia, to withdraw his appeal to the Supreme Court. The court accepted the plea of guilty to charges of third degree murder and robbery.

On October 9, 1978, appellant’s counsel filed a petition for reconsideration of sentence claiming the sentence imposed was illegal. This petition was neither pursued nor withdrawn by appellant or his counsel. According to the record, the court never disposed of the motion. Subsequently, appellant filed a PCHA petition and a hearing on the matter, was held on March 21, 1986. Following the denial of appellant’s PCHA petition, this appeal was taken.

Appellant first contends trial counsel rendered ineffective assistance by failing to advise him of the right to appeal the trial court’s “implicit denial” of the motion in arrest of judgment and for failing to effect such an appeal. The burden of proving trial counsel was ineffective falls upon the appellant. Commonwealth v. Jones, 298 Pa.Super. 199, 205, 444 A.2d 729, 732 (1982). Additionally, the law presumes that counsel is effective. Commonwealth v. Norris, 305 Pa.Super. 206, 210, 451 A.2d 494, 496 (1982).

Pennsylvania law regarding ineffective assistance of counsel is well documented. The process to be utilized is a three-pronged analysis consisting first of a determination of whether the issue underlying the ineffectiveness claim is of arguable merit. The second prong evaluates whether the course chosen by counsel had some reasonable basis aimed at promoting the appellant’s interests, and the third prong requires the appellant to establish that the ineffectiveness so prejudiced his case that it is likely that the result would reasonably have been different absent the errors.

Commonwealth v. Tyson, 363 Pa.Super. 380, 383, 526 A.2d 395, 397 (1987), citing Commonwealth v. Brandt, 353 Pa. Super. 250, 509 A.2d 872 (1986). See also Commonwealth v. Pierce, 345 Pa.Super. 324, 498 A.2d 423 (1985), aff'd, 515 Pa. 153, 527 A.2d 973 (1987).

The PCHA court found that trial counsel had failed to advise appellant of his right to appeal the “implicit denial” of his motion in arrest of judgment. (Trial court op., September 30, 1986, at 2). We agree with the PCHA court that the trial court’s failure to dispose of the motion in arrest of judgment was, in effect, a denial of that motion. A denial of a motion in arrest of judgment is an appealable order. “Although the order appealed from is interlocutory, •such an order is appealable when a new trial has been granted.” Commonwealth v. Harris, 315 Pa.Super. 544, 547 n. 3, 462 A.2d 725, 727 n. 3 (1983). See Commonwealth v. Chenet, 473 Pa. 181, 373 A.2d 107 (1977); Pa.R.A.P. 311(a)(5).

Notwithstanding trial counsel’s failure to properly advise appellant of his right to appeal or to effect such an appeal, appellant waived his appellate right by subsequently entering the guilty plea. A guilty plea can result in the waiver of certain rights. Commonwealth v. Dosch, 348 Pa.Super. 103, 501 A.2d 667 (1985). In Dosch, the plea agreement required the defendant to enter pleas of guilty to certain offenses and withdraw his pending post-trial motions in order to take advantage of specific sentence recommendations. The court found the agreement was not invalid because appellant’s pleas of guilty were entered voluntarily with full understanding of the post-trial rights he was surrendering. Id. 348 Pa.Super. at 108, 501 A.2d at 670, citing, Commonwealth v. Mika, 277 Pa.Super. 339, 343, 419 A.2d 1172, 1174 (1980) (defendant may waive the right to appeal, provided such waiver is a “knowing and intelligent” act on the part of the defendant).

In the instant case, we have no doubt that appellant knowingly, voluntarily and intelligently waived his right to an appeal on the “implicit denial” of his motion in arrest of judgment. Appellant was provided with notice of his appeal rights along with notice of their subsequent waiver during the course of the guilty plea colloquy on June 12, 1978. An examination of the guilty plea transcript also supports such a finding. Appellant was asked if he understood that he would be withdrawing his appeal before the Supreme Court of Pennsylvania. (Notes of guilty plea colloquy, June 7, 1978, at 9). Appellant responded in the affirmative indicating that he knew his appeal rights would be waived by pleading guilty. Id.

Moreover, testimony from the PCHA hearing also indicates that appellant had been advised that he would lose his appeal rights as a result of his guilty plea. (Notes of PCHA hearing, March 21, 1986, at 37-38). Appellant’s attorney, who had represented appellant at the guilty plea hearing, testified he told appellant that if the plea bargain agreement was accepted, any rights to pursue an appeal would be waived. Id. Given that the testimony from both the guilty plea colloquy and the PCHA hearing unquestionably supports the conclusion that appellant was aware he had waived his appellate rights, appellant’s claim that trial counsel was ineffective is without merit.

Appellant next alleges that his trial counsel rendered ineffective assistance of counsel by failing to pursue a petition for reconsideration of the sentence imposed following his guilty plea and for failing either to advise appellant of his right to appeal the sentence imposed by the trial court or to pursue an appeal. To reiterate, following the plea agreement, appellant’s counsel filed a petition for reconsideration of sentence. A hearing had been scheduled but was continued due to the illness of appellant’s counsel. No hearing ever took place on the petition for reconsideration and the matter remains unresolved to date. No appeal from the judgment of sentence was filed.

Initially, we note that failure of the trial court to dispose of the petition for reconsideration did not relieve defense counsel of the need to file a timely appeal.

Failure of the lower court to act upon the petition for reconsideration within the thirty-day appeal period does not toll the thirty-day period within which an appeal from the judgment of sentence must be filed. The lower court’s failure to act upon the petition within the thirty-day period has the same effect as a denial of the motion.

Commonwealth v. Villaloz, 303 Pa.Super. 518, 521, 450 A.2d 47, 48 (1982), citing, Commonwealth v. Lee, 278 Pa.Super. 609, 612, 420 A.2d 708, 709 (1980). Also, the Comment to Rule 1410 states:

Under this rule, the mere filing of a motion for modification of sentence and the court’s scheduling of a hearing on the motion do not affect the running of the thirty-day period for filing a timely notice of appeal, and the need for the defendant to file his appeal (both of the case or as to the sentence) within that period.

Comment Pa.R.Crim.P. 1410. Despite the court’s failure to act upon the petition for reconsideration, an appeal should have been filed within the thirty-day time period.

In the instant case, appellant claims that counsel rendered ineffective assistance by failing to pursue a petition for reconsideration of the sentence and for failing to advise him of the right to appeal the sentence. We agree. “An accused has an absolute right to appeal, Pa. Constitution, Article Y, Section 9, and counsel can be faulted for allowing that right to be waived.” Commonwealth v. Wilkerson, 490 Pa. 296, 299, 416 A.2d 477, 479 (1980). “This requirement that counsel protect the appellate right of an accused extends even to circumstances where the appeal is totally without merit.” Id. 490 Pa. at 299, 416 A.2d at 479. When a defendant enters a plea of guilty, he waives the right to challenge anything but the legality of his sentence and the validity of his plea. Commonwealth v. Montgomery, 485 Pa. 110, 113, 401 A.2d 318, 319 (1979), citing, Commonwealth v. Greer, 457 Pa. 646, 326 A.2d 338 (1974). Failure to inform of appellate rights, even though counsel has a reasonable basis, however, is ineffective assistance of counsel because it negates the validity of the plea. Commonwealth v. Johnson, 339 Pa.Super. 296, 488 A.2d 1132 (1985).

Based upon the holding of Johnson, we are forced to conclude that trial counsel rendered ineffective assistance of counsel by failing to advise appellant of his right to file a direct appeal from the judgment of sentence and to pursue a timely appeal. There is simply no evidence of record suggesting that appellant had voluntarily waived his right to appeal the judgment of sentence.

This Court has held that once a defendant has shown he was denied his appellate rights, relief must be granted in the form of an appeal nunc pro tunc. Commonwealth v. Miranda, 296 Pa.Super. 441, 442 A.2d 1133 (1982). Accordingly, because appellant was denied his constitutionally protected appellate rights, he is granted an appeal nunc pro tunc from the judgment of sentence imposed on September 28, 1978. We need not remand for a direct appeal, however, as we have a full and adequate record before us. See, Commonwealth v. Johnson, 339 Pa.Super. at 307, 488 A.2d at 1138. Rather, we will review this case as a direct appeal.

Turning to the merits of this appeal, appellant contends that his sentence was manifestly excessive and unfair in light of the sentences imposed on his co-conspirators.

Sentencing is a matter within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. Commonwealth v. Simpson, 353 Pa.Super. 474, 510 A.2d 760 (1986), allocator denied, 514 Pa. 624, 522 A.2d 49 (1987). When sentencing is exercised within statutory guidelines, the sentence will not be disturbed on appeal unless it is so excessive as to constitute an abuse of discretion. Commonwealth v. Stafford, 313 Pa.Super. 231, 459 A.2d 824 (1983). Nothing in the certified record indicates the sentences received by the other co-conspirators. The trial court noted, however, that one of appellants co-conspirators actually received a longer sentence. Hence, it appears that the sentence imposed on appellant was not unduly harsh. Moreover, the trial court found appellant’s sentence was justified by his participation in the crime. See Commonwealth v. Sinwell, 311 Pa.Super. 419, 425, 457 A.2d 957, 960 (1983) (“A trial court is not bound to impose a like sentence on all participants of a crime.”); Commonwealth v. Burton, 451 Pa. 12, 15, 301 A.2d 675, 677 (1973) (co-defendants are not required to receive equal sentences and the sentencing court may impose different sentences after considering all facts relating to each defendant). We find no error in this determination.

In conclusion, the sentence imposed on appellant was not manifestly excessive or unfair. Finding no merit in appellant’s claim, the sentence imposed is affirmed. Order affirmed.

      . 42 Pa.C.S. § 9541, et seq.

      . One of the grounds in support of the petition for reconsideration was a claim that the murder and robbery charges merged for sentencing purposes. This claim would not entitle appellant to relief. Appellant pled guilty to third-degree murder, not felony murder. Under such circumstances, robbery is not a constituent offense of the murder. Commonwealth v. Harper, 346 Pa.Super. 105, 115, 499 A.2d 331, 337 (1985).

      . In reviewing this matter as a direct appeal from the judgment of sentence, we are presented with a challenge to a discretionary aspect of the sentence. In Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), our Supreme Court mandated that a party appealing the discretionary aspects of a sentence comply with the requirement of Pa.R.App.P. 2119(f) that he set forth a "concise statement of the reasons relied upon for allowance of appeal." The Court explained that this rule was promulgated to implement 42 Pa.C.S. § 9781(b), which provides that “[ajllowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under [the Sentencing Code]." Appellant's brief does not contain the Rule 2119(f) statement. While this omission normally would preclude our review of appellant’s excessiveness issue, see Tuladziecki, supra, we believe we may consider whether appellant's contention has "arguable merit” within the context of an ineffectiveness claim. See Commonwealth v. Jones, No. 2371 Philadelphia 1986, slip op. at 6 (Pa.Super. 7/15/87).


author: BECK, Judge:

text:
    531 A.2d 12
    Elizabeth BLOOM, John O. Sowash and Mary M. Bank, Appellants, v. Stanley SELFON, Individually and as Executor of the Last Will and Testament of Kathryn B. Orstein, Deceased.
    Superior Court of Pennsylvania.
    Argued April 1, 1987.
    Filed Sept. 9, 1987.
    Petition for Allowance of Appeal Granted Feb. 11, 1988.

      William J. Myers, Indiana, for appellants.
    Robert F. Claraval, Harrisburg, for appellee.
    Before WIEAND, BECK and CERCONE, JJ.
   BECK, Judge:

This is an appeal by the heirs-at-law of the late Kathryn B. Orstein challenging the trial court’s construction of decedent’s last will and testament. At issue is whether under the terms of the will decedent’s estate passed to a relative of her ex-husband.

The relevant facts are not in dispute. Kathryn B. Orstein married W. Lee Orstein in 1966. On August 30, 1978, she executed a will which reads in part as follows:

I— I direct the payment of all my just debts and funeral expenses out of my estate as soon as may be practical after my death.
II— I devise and bequeath all of my estate of whatever nature and wherever situate unto my husband, W. Lee Orstein.
III— Should my said husband predecease me, then I devise and bequeath all of my estate of every nature and wheresoever situate unto my issue per stirpes.
IV— If my said husband predeceases me and we have no issue, then all of my estate shall be distributed to my husband’s uncle, Stanley Selfon.
V— I appoint my husband, W. Lee Orstein, Executor of this, my Last Will and Testament. Should my said husband fail to qualify or cease to act as such, then I appoint the said Stanley Selfon to act in this capacity. Neither of my personal representatives shall be required to post bond in this or any jurisdiction.

The Stanley Selfon referred to in the final two paragraphs is the husband of W. Lee Orstein’s aunt, and thus W. Lee Orstein’s uncle by marriage.

The Orsteins divorced in 1981. Decedent, however, did not revise her will. She died without issue on February 25, 1984. She was survived by both W. Lee Orstein and Stanley Selfon.

The parties to this suit agree that — as decedent’s ex-husband — W. Lee Orstein is barred by operation of law from receiving a bequest or serving as an executor. See 20 Pa.Cons.Stat.Ann. § 2507(2) (Purdon 1975) (discussed infra ). Paragraph II of the will is therefore ineffective. The parties also agree that since decedent had no issue paragraph III of the will is ineffective. The present controversy concerns Mr. Selfon’s rights under paragraph IV.

On March 20, 1984, the will was admitted to probate and letters testamentary were issued to Mr. Selfon. Selfon administered the estate as executor. Pursuant to paragraph IV, he distributed the entire proceeds of the estate to himself.

On June 17, 1985, decedent’s sister Elizabeth, her sister Mary, and her brother John filed an action for declaratory relief in the Orphan’s Court Division of the Court of Common Pleas of Cumberland County. Plaintiffs (here appellants) alleged that they are the sole intestate heirs of the decedent. They argued that the paragraph IV bequest to Mr. Selfon was subject to a condition precedent that W. Lee Orstein predecease Kathryn B. Orstein; since Mr. Orstein was still alive, they reasoned that this condition had not been satisfied and that a total intestacy resulted. Following a hearing, the Honorable Kevin A. Hess issued an order denying relief. Plaintiffs-appellants filed post-trial motions which were denied and then appealed to this court.

We deal here with a “gift over” — a gift to an alternate beneficiary (Selfon) designed to take effect if the will’s primary beneficiary (W. Lee Orstein) dies during the testatrix’s lifetime. The precise issue on appeal is whether the trial court committed an error of law by enforcing the gift over where: (1) the primary beneficiary was the testatrix’s former spouse, and (2) this spouse did not die but rather was divorced. This is a question of first impression for an appellate court in Pennsylvania. After careful consideration, we conclude that the trial court did not err and we affirm.

We will first discuss the general problem of interpreting a gift over within the context of a subsequent divorce. We will then proceed to consider a special complication — the fact that the gift over will go to a relative of the testatrix’s ex-spouse.

I.

Reduced to its essentials, decedent’s will provides that she leaves everything to her husband, and if he predeceases her, then to the alternate beneficiary. This is certainly a common testamentary plan. In the early part of the century, the probate of such a will would have presented little difficulty; in Jones’s Estate, 211 Pa. 364, 60 A. 915 (1905), the Court held that divorce did not affect the right of the former spouse to take under a will. Thus, in the Jones era, the ex-spouse would have received the bequest and the rights, if any, of the alternate beneficiary would have remained a moot question.

In 1947, however, Pennsylvania became one of many states to adopt a statutory provision based on section 53 of the Model Probate Code. This provision as currently revised is codified as section 2507(2) of the state Decedents, Estates and Fiduciaries Code:

If the testator is divorced from the bonds of matrimony after making a will, all provisions in the will in favor of or relating to his spouse so divorced shall thereby become ineffective for all purposes.

The provision clearly disqualifies the ex-husband from receiving the estate. Consequently, the probate court is faced with a choice of upholding the distribution to the alternate beneficiary or of declaring an intestacy.

At this point, it is useful to recall certain general principles of wills construction. First, the primary goal of the court is to effectuate the intent of the testatrix. The intent of the testatrix is of central importance and such intent may be denied only where it is unconstitutional, unlawful or against public policy. In re Estate of Janney, 498 Pa. 398, 446 A.2d 1265 (1982). Except where a statute dictates a contrary result, the court must respect a testatrix’s wishes even when they conflict with the best interest of her own family. See Estate of Stewart, 325 Pa.Super. 545, 473 A.2d 572 (1984), aff'd 506 Pa. 336, 485 A.2d 391 (1984).

Second, testamentary intent can only be ascertained by carefully reviewing all of the language contained in the will. In re Estate of Ogden, 353 Pa.Super. 273, 276, 509 A.2d 1271, 1273 (1986). “[T]he words of the instrument are not viewed in a vacuum,” ibid., but rather as part of an overall testamentary plan. See Estate of Zerbey, 313 Pa. Super. 297, 459 A.2d 1237 (1983). This does not mean that the court may ignore the text of the will in favor of extrinsic evidence or rewrite the will for the testatrix. See In re Estate of Macfarlane, 313 Pa.Super. 397, 459 A.2d 1289 (1983). However, specific “[w]ords or phrases will be rejected when they ... subvert or defeat testator’s whole testamentary scheme and divest the bounty from those whom he obviously intended to benefit ...” Hill Estate, 432 Pa. 269, 279, 247 A.2d 606, 612 (1968) (citing March Estate, 357 Pa. 216, 219, 53 A.2d 606, 607 (1947)).

Third, if the decedent’s intent is unclear, certain presumptions are applied to the construction of the will. “First among these presumptions is that a testator intends to dispose of his entire estate and not to die intestate as to any part of it.” Estate of Williams by Lorgan v. Williams, 357 Pa.Super. 476, 480, 516 A.2d 359, 361 (1986). Moreover, and more generally, “the law will impute to the testator’s words such meaning as under all the circumstances will conform to his probable intention and be most agreeable to reason and justice.” Estate of McKenna, 340 Pa.Super. 105, 110, 489 A.2d 862, 865 (1985).

In the instant case, appellants view the words “if my spouse predeceases me” as imposing an absolute requirement that the former spouse die before the testatrix. These words, however, may also be viewed as part of a broader scheme, i.e., a method by which the testatrix describes her order of preference regarding who should enjoy her estate. It is overwhelmingly likely that the only reason for the predecease clause was to provide a fallback beneficiary in case the husband was no longer available to take under the will. Once the husband is barred by divorce from taking the gift, the time of his death no longer has any apparent significance. Therefore, as the trial judge noted in his opinion, “[cjommon sense, in part, impels us to the conclusion that [the predecease clause] ... is less a pre-condition and more a provision to address the situation where the primary beneficiary could or would not [take under the will]...” Trial Ct. Op. at 5.

In reaching this determination, we are guided by the decisions in other jurisdictions which have dealt with the issue at hand. See generally Annotation, Divorce: Devolution of Gift Over Upon Spouse Predeceasing Testator Where Gift to Spouse Fails Because of Divorce, 74 A.L. R.3d 1108 (1976). Several opinions have interpreted survivorship clauses as barring recovery, but the majority of cases in states which have adopted provisions similar to Pennsylvania’s code section 2507(2) have upheld the alternate bequest. Although the precise reasoning of the courts varies, the underlying policy was aptly summarized by the Wisconsin Supreme Court:

... a testator probably intends that a gift over be given effect whenever the spouse cannot take whatever the reason. Since divorce takes the spouse out of the picture as surely as death, it does not seem logical to tie the disposition of the estate to the death of the divorced spouse who is no longer a qualified beneficiary. The effect of [a contrary] rule of construction is to give preference to the law of intestacy over a testamentary dispositional scheme.

In re Estate of Graef, 124 Wis.2d 25, 38, 368 N.W. 633, 639 (1985).

We also note that this view is in accord with the Uniform Probate Code (U.P.C.). Section 2-508 of the U.P.C. provides in part:

If after executing a will the testator is divorced or his marriage annulled, the divorce or annulment revokes any disposition or appointment of property made by the will to the former spouse, any provision conferring a general or special power of appointment on the former spouse, and any nomination of the former spouse as executor, trustee, conservator, or guardian, unless the will expressly provides otherwise. Property prevented from passing to a former spouse because of revocation by divorce or annulment passes as if the former spouse failed to survive the decedent, and other provisions conferring some power or office on the former spouse are interpreted as if the spouse failed to survive the decedent.

Although our state statute is less comprehensive, we cannot conclude that the Pennsylvania legislature has implicitly rejected the U.P.C. position. Cf. Porter v. Porter, 286 N.W.2d 649, 656 (Iowa 1979) (Iowa legislature did not implicitly reject U.P.C. by retaining provision based on section 53 of Model Probate Code). Pennsylvania adopted what is now code section 2507(2) over twenty years before the U.P.C. was promulgated by the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association in 1969. Since section 2507(2) is silent as to the rights of the alternate beneficiary, nothing therein is inconsistent with the result that we reach today.

In summary, there are two ways of interpreting the words “if my spouse predeceases me” (or “if my spouse does not survive me”) when they appear in a will. This clause may indicate that unless the spouse actually outlives the testatrix, the gift to the alternate beneficiary is void under all circumstances. Or the clause may express an intention that the gift should go first to the spouse, if possible, and then to another.

Each will is a unique testamentary document. “[N]o will has a twin brother,” Henderson Estate, 405 Pa. 451, 455, 176 A.2d 428, 430 (1962), and one cannot assume that all decedents mean the same thing by the same language. However, we are inclined to prefer the broader construction since this reading avoids an intestacy and is more likely to reflect the testatrix’s wishes. Therefore, in the absence of clear evidence of an intent to the contrary, property which is prevented from passing to a former spouse because of divorce should pass in the same manner as if the former spouse had failed to survive the decedent. Cf. Jones v. Brown, 219 Va. 599, 248 S.E.2d 812 (1978); First Church of Christ, Scientist v. Watson, 286 Ala. 270, 239 So.2d 194 (1970) (similar reasoning).

II.

Upon reviewing the Orstein will, we conclude that there is no special factor which counsels in favor of declaring an intestacy. Decedent established a simple formula for distributing her estate — first to husband, then to issue, then to appellee Selfon. We will follow this formula to the extent that it is possible to do so.

The one truly unusual aspect of decedent’s will is the identity of the last named beneficiary. Selfon is of course decedent’s ex-spouse’s uncle. At first blush, this appears to create a substantial problem.

A decedent will sometimes leave her estate to her spouse with a gift over to a charity or to a favorite member of her own family. See In re Estate of Fredericks, 311 So.2d 376 (Fla.Dist.Ct.App.1975) (gift over to hospital); Iles v. Iles, 158 Fla. 493, 29 So.2d 21 (1947) (gift over to testator’s brother). In such a case, it is particularly likely that failing to enforce the gift over after the decedent has been divorced would thwart her intent. One would not expect the divorce to have any impact on her feelings toward the alternate beneficiary.

On the other hand, where the gift over is to the spouse’s relative, the divorce takes on added significance. Following the divorce, testatrix may drift apart from the ex-spouse’s family and may become closer to those individuals who are her intestate heirs. We conclude however that this possibility does not justify interfering with the bequest to Selfon.

The law contains no general presumption against gifts to an ex-spouse’s relatives. Section 2507(2) reflects a legislative judgment that the average decedent would wish to change “all provisions in the will in favor of or relating to his spouse so divorced”; the General Assembly saw no need to protect the decedent by also invalidating provisions in the will in favor of or relating to the divorced spouse’s kin. If the Orstein will had contained a direct and exclusive gift to appellee — e.g., “I leave $50,000 to my husband’s uncle Stanley” — this gift would surely be enforced. It follows that divorce alone is not sufficient reason to avoid a will construction which permits an alternate bequest to Selfon.

Moreover, on a practical level, “[tjhere is no reason to assume that in all or even most cases a testator estranged from his spouse will also be estranged from alternative beneficiaries under the will, even if they are relatives of that spouse.” Porter v. Porter, 286 N.W.2d at 655. In the instant case, testatrix did not mention her intestate heirs at all; she mentioned appellee twice — as an alternate beneficiary in paragraph IV of the will and as an alternate executor in paragraph V. New individuals who execute a will would choose of all people a husband’s uncle — rather than their own brother and sisters — as an object of their bounty. Such a disposition would seem to evidence an exceptionally close bond — a bond which may well outlast the end of the marriage. Families, after all, are comprised of individuals and individuals form relationships in patterns which cannot always be neatly regulated or predicted. We shall not disturb the pattern that this will reflects.

Order affirmed.

      . Two Pennsylvania trial courts have considered this issue and reached conflicting results. Both cases involved this scenario: (1) testator executed a will providing that if his wife did not survive him for thirty days, a portion of his estate should be distributed to his wife’s children from a prior marriage; (2) testator divorced his wife; (3) testator died before his former wife. Under these circumstances, a Montgomery County court declared an intestacy in Reichelderfer Estate, 28 Fiduc.Rep. 337 (1978). Conversely, a Bucks County court upheld the gift to the ex-wife’s children in Riley Estate, 5 Fiduc.Rep.2d 41 (1984).

      . It is also true that an "heir or statutory distributee will not be disinherited except by express words or necessary intendment.” 357 Pa.Super. at 480, 516 A.2d at 361. In the instant case, however, there is no possible way of construing the will so as to include a bequest to decedent’s brother and sisters; since the will does not mention appellants, they can only take if there is an intestacy.

      . See, e.g., In re Estate of Guess, 213 So.2d 638 (Fla.Dist.Ct.App.1968); In re Will of Lampshire, 57 Misc.2d 332, 292 N.Y.S.2d 578 (1968); Davis v. Davis, 24 Ohio Misc. 17, 258 N.E.2d 277 (1970); In re Estate of Freeman, 651 P.2d 1071 (Okla.Ct.App.1982); Volkmer v. Chase, 354 S.W.2d 611 (Tex.Civ.App.1962); In re Estate of McLaughlin, 11 Wash. App. 320, 523 P.2d 437 (1974). Cf. Provident Mutual Life Ins. Co. of Philadelphia v. Camerlin, 566 F.Supp. 1517 (W.D.Pa.1983), aff’d Til F.2d 147 (3d Cir.1984) (similar issue concerning conveyances voided by divorce pursuant to 20 Pa.Cons.Stat.Ann. § 6111.1 (Purdon 1987)).

      . See, e.g., First Church of Christ, Scientist v. Watson, 286 Ala. 270, 239 So.2d 194 (1970); McGuire v. McGuire, 275 Ark. 432, 631 S.W.2d 12 (1982); Iles v. Iles, 158 Fla. 493, 29 So.2d 21 (1947); Lamontagne v. Hunter, 341 So.2d 1074 (Fla.Dist.Ct.App.1977); In re Estate of Fredericks, 311 So.2d 376 (Fla.Dist.Ct.App.1975); Porter v. Porter, 286 N.W.2d 649 (Iowa 1979); Steele v. Chase, 151 Ind.App. 600, 281 N.E.2d 137 (1972); Russell v. Estate of Russell, 216 Kan. 730, 534 P.2d 261 (1975); In re Will of Sharinay, 58 Misc.2d 334, 295 N.Y.S.2d 502 (1968); Calloway v. Estate of Gasser, 558 S.W.2d 571 (Tex.Civ.App. 1977); Jones v. Brown, 219 Va. 599, 248 S.E.2d 812 (1978); Peiffer v. Old Nat. Bank & Union Trust Co., 166 Wash. 1, 6 P.2d 386 (1931); In re Estate of Graef, 124 Wis.2d 25, 368 N.W.2d 633 (1985).

      . One way in which a testatrix could clearly communicate an intent to the contrary would be to provide that she leaves all to the spouse, but if the spouse predeceases her "in that event and in that event only” the estate is to go to the alternate beneficiary. See McFarlen v. McFarlen, 536 S.W.2d 590 (Tex.Civ.App.1976).

      . Wc do not believe that a bequest to "my husband’s uncle” is itself a bequest "in favor of or relating to the spouse so divorced” within the meaning of the statute. Section 2507(2) has been used to invalidate will provisions which were clearly designed to provide a financial benefit for the ex-spouse or to grant the ex-spouse a significant role in the administration of the decedent’s estate. See In re Estate of Corso, 494 Pa. 269, 431 A.2d 253 (1981) (voiding provision which exempted ex-wife’s share of estate from estate taxes); In re Domanyi's Estate, 30 Fiduc. 133, 13 D. & C.3d 482 (Somerset Co. 1979) (voiding provision appointing ex-wife as executrix). We conclude that section 2507(2) is not implicated by a provision which merely refers to the ex-spouse tangentially, or by a provision which happens to benefit a party with whom the ex-spouse has an independent relationship. Cf. In re Estate of Graef, 124 Wis.2d 25, 368 N.W.2d 633 (1985) (gift to ex-wife’s mother is not gift “in favor of" ex-wife under Wisconsin’s probate code).