author: MONTEMURO, Judge:

text:
    468 A.2d 806
    COMMONWEALTH of Pennsylvania v. Wilbur Lee BELLAMY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 14, 1983.
    Filed Dec. 2, 1983.

      Eric J. Cox, Harrisburg, for appellant.
    Ronald Thomas Williamson, Assistant District Attorney, Harrisburg, for Commonwealth, appellee.
    Before CAVANAUGH, MONTEMURO and HESTER, JJ.
   MONTEMURO, Judge:

This matter is before the court on the appeal of Wilbur Lee Bellamy requesting relief under a Post Conviction Hearing Act (PCHA) petition alleging ineffective assistance of trial counsel. Bellamy contends that his trial counsel was ineffective in failing to properly advise him regarding his decision whether or not to testify at trial. Bellamy originally expressed a desire to testify at trial in order to establish an alibi, however, he was concerned about his prior convictions being introduced to impeach his credibility. Trial counsel filed a motion to suppress Bellamy’s prior convictions in a pretrial omnibus motion. The lower court deferred ruling on the motion to suppress the prior convictions until after the Commonwealth’s case-in-chief at trial. At that point in the trial, Bellamy’s counsel did not renew the motion to suppress and so the trial court was not called upon to make a ruling. See, Commonwealth v. Miller, 465 Pa. 458, 350 A.2d 855 (1976).

Bellamy, who did not testify at trial, argues that ineffectiveness of his trial counsel precluded him from making a knowing and informed decision regarding whether he should testify. Specifically, he contends that: (1) trial counsel never informed him of the motion and the possibility that his prior convictions might be suppressed, but instead advised him not to testify because his prior convictions would be admitted to impeach his testimony at trial; and, (2) even had he been aware of the motion to suppress, he could not have made an informed decision absent a definitive ruling on the motion.

This court previously ordered a remand in this case for an evidentiary hearing on the issue of ineffectiveness of trial counsel. Commonwealth v. Bellamy, 293 Pa.Super. 95, 437 A.2d 1007 (1981). That opinion instructed that the hearing develop why counsel did not renew the motion to suppress, and whether his failure to do so was a substantial factor in Bellamy’s decision not to testify. An evidentiary hearing was held during which both trial counsel, Maurino Rossanese, and Bellamy testified. The lower court subsequently entered an order dismissing the petition and issued an accompanying opinion. In that opinion the lower court determined that the central issue was one of credibility, which they resolved against Bellamy.

While the lower court’s dismissal of Bellamy’s ineffective assistance of counsel claim was not couched in terms of the well-established standard for analysis of such claims, it is clear that the traditional test was met. That test requires a two-step inquiry. Initially, it must be determined whether the issue underlying the charge of ineffectiveness is of arguable merit. If arguable merit exists, the inquiry shifts to a determination of whether the course selected by counsel had some reasonable basis designed to effectuate his client’s interests. Commonwealth v. Burton, 491 Pa. 13, 417 A.2d 611 (1980); Commonwealth v. Evans, 489 Pa. 85, 413 A.2d 1025 (1980).

■ Applying this test, we consider whether the issue underlying the charge of ineffectiveness of counsel is of arguable merit. It is imperative that the underlying issue be properly identified. The thrust of Bellamy’s petition is that he did not have the opportunity to make an informed decision. It is significant that Bellamy does not contend that the motion to suppress was meritorious and he would have testified upon a ruling in his favor. The underlying issue, therefore, is not whether the motion would actually have been granted, but whether Bellamy’s decision not to testify was informed.

The lower court correctly perceived that the crux of this issue was credibility. Rossanese testified that “prior to the trial” , he discussed the motion to suppress with Bellamy, indicating how it operated and that the likelihood of suppression was lessened since he could present his alibi through other witnesses. See, Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973). Rossanese stated that Bellamy was adamant that his prior record not be brought before the jury. Rossanese responded that the motion would have to be put before the judge, the judge would have to make a ruling, and if the motion was granted, the Commonwealth could not bring Bellamy’s convictions before the jury. Rossanese related that at the close of the Commonwealth’s case, he asked Bellamy if he wanted to take the stand, to which Bellamy replied “No. I don’t. Forget it.” (N.T. 9) At that juncture, Rossanese believed it would be pointless to pursue the motion.

Bellamy testified that he conferred with Rossanese just before the trial commenced, and was advised not to take the stand because of his prior convictions. He said the Rossanese never discussed the motion to suppress with him and that he was never informed of his option to try and keep the prior convictions out.

On the basis of this record and the lower court’s observance of the demeanors of Rossanese and Bellamy, they found the former to be credible and the latter to be incredible. They concluded that Bellamy knew he had a right to press the motion, but decided for his own reasons not to testify. Furthermore, the lower court found that Rossanese’s failure to pursue the motion to suppress was not a substantial factor in Bellamy’s decision not to testify. In essence, therefore, the lower court held that Bellamy’s decision not to testify had been informed. Such a holding was tantamount to a determination that the issue underlying the charge of ineffectiveness of counsel was without arguable merit.

On appeal from a decision in a proceeding for post conviction relief under the PCHA, the findings of the court below will not be disturbed by the reviewing court unless they have no support in the record. Commonwealth v. Young, 433 Pa. 146, 249 A.2d 559 (1969). There is ample support in the record for the lower court’s findings in both the testimony of the trial counsel and the fact that the motion to suppress had indeed been filed.

Accordingly, we affirm the Order of the trial court.

CAVANAUGH, J., concurred in the result.

      . Post Conviction Hearing Act, Act of January 25, 1966, P.L. 1580 (1965), § 1 et seq., 19 P.S. § 1180-1 et seq., repealed, Act of April 28, 1978, P.L. 202, No. 53, § 2(a) (1397) effective June 27, 1980, as amended by the Act of June 26, 1980, P.L. 265, No. 77, § 1, delaying repeal until June 27, 1981, as further amended by the Act of June 26, 1981, P.L. 123, No. 41 § 1, delaying repeal until June 26, 1982, repealed by Act of May 13, 1982, P.L. 587, No. 1982-122, § 3, replaced by 42 Pa.C.S.A. 9541 et seq.

      . Bellamy’s testimony reveals that this conversation took place in the Montgomery County Prison just before he was brought over to the courthouse for the commencement of the trial.

      . The defense had listed three alibi witnesses. Bellamy’s proposed testimony would have been corroborative of that testimony.

      . The Commonwealth closed on the morning of the second day of trial.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    468 A.2d 808
    PENNSY SUPPLY, INC., Appellant, v. The NICHOLSON COMPANY.
    Superior Court of Pennsylvania.
    Argued Dec. 15, 1981.
    Filed Dec. 2, 1983.

      Arthur Berman, Harrisburg, for appellant.
    James F. Carl, Harrisburg, for appellee.
    Before WICKERSHAM, BECK and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from an order denying appellant’s motion to modify or vacate an arbitration award. We reverse.

The appellant, Pennsy Supply, Inc. (hereinafter referred to as Pennsy), supplied transit-mixed concrete during the construction of an industrial storage silo at the Ralston Purina plant in Mechanicsburg, Pennsylvania. A problem arose during construction of the silo, causing a delay before construction could be resumed. As general contractor, appellee, The Nicholson Company (hereinafter referred to as Nicholson), absorbed the costs of the delay. Nicholson alleged that the- cause of the delay was faulty concrete provided by Pennsy. Pennsy denied liability, and the parties agreed to have an arbitrator with engineering expertise resolve the dispute.

Hearings were held before an arbitrator on March 27 and 28, 1979, at which Pennsy and Nicholson each presented extensive technical evidence regarding the composition of the concrete mixture supplied by Pennsy. Although the hearings were closed on March 28, 1979, Nicholson sent the arbitrator a letter dated April 10, 1979, attached to which were two additional letters dated March 29, 1979 and April 6, 1979. The March 29 and April 6 letters were addressed to Nicholson’s counsel and were signed by an expert witness who testified on behalf of Nicholson at the arbitration hearings. The letter of March 29 included a table and graph “showing the relationship of absorbences ... to reference concretes made with ... Plastocrete [concrete mixture], Plastocrete from Pennsy Supply ..., and concrete from the [storage bin which Nicholson was constructing].” (Excerpt from the letter of March 29, 1979.) The letter of April 6 contained the expert’s “comments regarding the mechanisms by which greater than a normal dose ... of Plastocrete N could have occurred in the concrete furnished by Pennsy Supply---- The comments [were] based upon information made available during the arbitration hearing on March 27 and 28, 1979, and [an] analysis of Plastocrete obtained from Pennsy Supply during January____” (Excerpt from the letter of April 6, 1979.)

Nicholson sent copies of the above letters to Pennsy’s counsel. In a letter to the arbitrator dated April 16, 1979, counsel for Pennsy wrote:

With this letter I must strongly object to [Nicholson’s] submitting to you copies of letters ... received from [Nicholson’s expert witness] ... dated March 29, 1979 and April 6, 1979. Neither of these were [sic] requested or solicited by you at the hearing. They were made post-hearing without the opportunity of cross-examination on the part of the other party and consequently we would view a submission of this nature and magnitude as a reprehensible act on the part of a participant in arbitration and we further strongly feel that this alone might be sufficient to effect the validity of a determination to be made by you in this proceeding. We also view this as a serious breach of ethical conduct in this arbitration proceeding.
As the record indicates that the arbitration proceedings were closed at the conclusion of the receipt of testimony, except for the information to be obtained from [a specified third-party chemical company], although we see errors and misrepresentations of [the Nicholson expert witness’s] presentation [letters], we will not comment on the same.

On May 28, 1979, the arbitrator ruled that Pennsy and Nicholson were equally liable for the construction problems and should share the expenses incurred. Pennsy then filed its petition to vacate the arbitration award, and alleged that the award was invalid because of the presentation of ex parte evidence. The lower court found that although Pennsy objected to the arbitrator’s ex parte receipt of the expert’s letters, Pennsy had an affirmative duty to request that the arbitrator disregard the letters or re-open the proceedings to permit cross-examination as to the letters or the introduction of new evidence. The trial court held:

It may be true that receipt of ex parte evidence might be sufficient to vacate an arbitrator’s award. “Parties to an arbitration may, however, by their words or actions, waive these otherwise guaranteed procedural protections.” Reisman v. Ranoel Realty Co., 224 Pa.Super. 220, 225, 303 A.2d 511, 514 (1973). While it was improper for Nicholson’s counsel to submit the two expert letters, Pennsy has failed to show through “clear, precise and indubitable evidence” that it was denied a fair hearing. Kreisl et al. v. Varano et al., 46 Northum.L.J. 116, 121 (1974). Pennsy’s failure to take any affirmative steps in clarifying the record requires us to affirm the Arbitrator’s award. (Lower Court Opinion at p. 5).

Our review of the relevant case law indicates that although the lower court was correct in finding that Nicholson acted improperly in submitting the two expert letters to the arbitrator after the hearing had been closed, the trial court erred in holding that Pennsy waived its right to object to this procedural inequity.

Nicholson argues that before a common law arbitration award can be overturned, it must be shown that there was actual fraud, involving collusion with one of the parties, or misconduct intended to create a fraudulent result. (Brief for Appellee at p. 1, 4) (quoting Mellon v. Travelers Insurance Co., 267 Pa.Super. 191, 195, 406 A.2d 759, 761 (1979)). However, we also said in Mellon, “it is indisputable that even in the absence of fraud or misconduct as those terms have been defined by Runewicz v. Keystone Insurance Co., supra [234 Pa.Super. 355, 338 A.2d 602 (1975) ] a court may set aside an arbitration award if the parties were not accorded a fair hearing.” Mellon, supra, 267 Pa.Superior Ct. at 196, 406 A.2d at 761. In Mellon, a panel of arbitrators awarded $20,000 to the appellee based on a theory not argued by the parties, but raised sua sponte. Appellants argued that the arbitrators’ action in entering awards to appellee on claims never made denied them their due process right to a fair hearing, because they had no opportunity to make arguments or introduce evidence with respect to those claims. This Court agreed, finding that the arbitrators’ action constituted an overt denial of due process. The basis for this holding was stated as follows:

Here, appellants were denied their right to notice, and so their right to be heard. They were never told that the panel might enter awards to appellee Denney on claims she never made. Consequently, they never marshalled such evidence nor prepared such arguments as they might have had against the claims.

Id., 267 Pa.Superior Ct. at 197, 406 A.2d at 762.

Thus, a hearing had been held where evidence was presented by both sides in support of specific claims. When the award was entered on grounds not raised at the hearing, we found reversible error. The earliest Pennsylvania decision focusing directly on this issue is Speer v. Bidwell, 44 Pa. 23 (1863). In Speer, the parties agreed to submit the matter in dispute in writing to the arbitrators. The Supreme Court held that since there was no agreement that ex parte testimony might be taken to sustain the statement of either party, it was manifest error for the arbitrators to receive the unsworn declarations of an interested witness without the knowledge of the other party. “Mistakes they may have considered possible, and assumed the risk of them, but misconduct of the selected tribunal is a thing not anticipated, and therefore not waived by any agreement to submit to the award.” Id., 44 Pa. at 26.

In disposing of this case on the basis of waiver, the court below relied on Reisman v. Ranoel Realty Co., supra. In Reisman, this Court remanded for further hearings the lower court’s affirmance of an arbitration award. The case arose out of a construction contract dispute. The parties proceeded to arbitration under the Pennsylvania Arbitration Act and under the Rules of the American Arbitration Association. A hearing was convened before the arbitration panel. Several witnesses testified, but shortly after appellee began to testify, and before there was an opportunity for appellant to cross-examine him or present its own witnesses, the parties agreed to narrow the issues by having counsel state each side’s position in oral argument. After such argument, it was agreed that each side would submit a brief after which there would be a second meeting with the panel in order to determine what witnesses and evidence would be necessary. A second hearing was held with only the arbitrators and counsel present. Appellee claimed, and the lower court found, that the parties agreed at this second meeting to allow the arbitrators to decide if a further evidentiary hearing was necessary. A few weeks after this second meeting, counsel for appellant requested a further hearing in order to cross-examine appellee and to present other witnesses in its defense. This request was refused and the hearing was later declared closed. We found that the record did not support a holding that appellant consented at the second meeting to an agreement amounting to a waiver of any further, hearing. Accordingly, the case was remanded for a further hearing to determine if appellant consented to the closing of the hearings. In reaching this decision, we cited Rule 37 of the American Arbitration Association which provides that a party’s continued participation in proceedings where the hearing panel may have acted in objectionable fashion without stating his objection in writing, bars a later complaint as to the misconduct of the arbitrators. Although Reisman arose under the Pennsylvania Arbitration Act, we specifically relied on Curran v. Philadelphia, 264 Pa. 111, 107 A. 636 (1919), for the common law rule that the party who asserts that such a waiver has taken place has the burden of showing words or conduct on the part of the opposing party indicating waiver.

In Curran, supra, a street cleaning contract called for an officer of the appellee, the City of Philadelphia, to be the arbitrator for questions concerning monies due. The appellant was not afforded a hearing or an opportunity to demand one prior to the rendition of the arbitrator’s decision. Our Supreme Court held that although one may impliedly or expressly authorize an arbitrator to proceed in his absence, appellant’s failure to demand a hearing prior to appealing the arbitrator’s decision did not amount to waiver. The intent to confer upon an arbitrator the power to proceed ex parte must clearly appear. Curran, 264 Pa.Superior Ct. at 119, 107 A. at 639, 640. Since appellant did not assent to an ex parte hearing, the award was improper.

In the case sub judice, the only words submitted to the arbitrator after he received the experts’ letters were in the form of a written objection to their admission by the appellant:

[W]e would view a submission of this nature and magnitude as a reprehensible act on the part of a participant in arbitration and we further strongly feel that this alone might be sufficient to effect the validity of a determination to be made by you in this proceeding. We also view this as a serious breach of ethical conduct in this arbitration proceeding.

Although the above objection to the submission of the letters did not specifically suggest that the arbitrator disregard the letters, such a request could certainly be implied. More importantly, the written objection belies a showing of waiver under the common law standard announced in Cur-ran, supra. That is, there are no words or conduct indicating consent to the close of the hearings after the ex parte receipt of evidence. The court below committed an error of law by placing upon Pennsy an affirmative duty to do more than object in writing to the ex parte evidence.

For the above stated reasons, we reverse the order of the court below and vacate the arbitrator’s award.

      . Since the parties in the instant case did not specify the rules which would govern the arbitration proceeding, either in the arbitration agreement or in any subsequent agreement, common law rules control- the enforcement of the arbitration award. Weiss v. Zerman Realty and Construction Co., 214 Pa.Super. 180, 182, 251 A.2d 810, 811 (1969).


author: CERCONE, President Judge:

text:
    468 A.2d 812
    Frank R. VACCA, Appellant, v. Rocco MATTEO and Sarah Matteo, Husband and Wife.
    Superior Court of Pennsylvania.
    Argued May 2, 1983.
    Filed Dec. 2, 1983.

      Rames J. Bucci, Philadelphia, for appellant.
    Mary Beth Kramer, Philadelphia, for appellees.
    Before CERCONE, President Judge, and McEWEN and HOFFMAN, JJ.
   CERCONE, President Judge:

Appellant, Frank R. Vacco, takes this appeal from the order of the Court of Common Pleas, in which the court granted appellees’, Rocco and Sarah Matteo, motion to quash appellant’s appeal from an award by a board of arbitrators. After thoroughly reviewing the record, we find that this case must be remanded for an evidentiary hearing.

This action was initiated by appellant — plaintiff, a real estate broker, against appellee-defendants, husband and wife, to recover commissions allegedly due appellant for providing a buyer for appellees’ property. The matter initially went to arbitration and, following a hearing, the arbitrators ruled in favor of appellees. On June 1, 1979, appellant timely filed an appeal with the Court of Common Pleas. Included with this notice was a certification by counsel for appellant attesting that appellant “has paid all costs which have occurred to the time of taking of this Appeal.” The case was subsequently brought before the Honorable Matthew W. Bullock, Jr., sitting without a jury. Prior to trial, appellees’ made a motion to quash the appeal from the arbitrator on the grounds that appellant failed to pay all costs occurred at the time of taking the appeal, as was then required by local rule of court, Rule 108. The court did not immediately rule on appellees’ motion, but instead proceeded to hear the case on the merits. However, after two days of testimony, the court granted appellee’s motion to quash. Appellant filed a timely appeal to this Court from the trial court’s order quashing the case.

Our disposition of the herewithin matter is precluded by two factors. First, there is no transcript of the hearing before the Court of Common Pleas in the record. Second, Judge Bullock retired from the bench without authoring an opinion explaining his ruling; instead, the opinion was authored by another judge, the Honorable Charles P. Mirarchi, Jr., who frankly admits in his opinion that a remand for an evidentiary hearing is necessary to resolve the factual question of payment or non-payment of costs.

It appears from the briefs and record that the parties agree that some of the costs were paid. The dispute centers around the question of whether all the costs were paid. While we agree that an evidentiary hearing is necessary, owing to the absence of clear resolution of the factual question, before entering our order we wish to clarify a point of law which the parties seem to have overlooked. In Black and Brown, Inc. v. Home for the Accepted, Inc., 233 Pa.Superior Ct. 518, 335 A.2d 722 (1975), this Court was asked to interpret a provision then contained in the statutes which likewise required that an appellant “pay all the costs that may have occurred in such suit of action” when appealing to the Court of Common Pleas from a decision at arbitration. We ruled in that while the requirement that record costs be paid during the appeal period was mandatory, a “valid attempt to make such timely and full payment, coupled with substantial though incomplete compliance with the requirement should not result in the harsh finality of an order quashing an appeal from arbitration.” Id., 233 Pa.Superior Ct. at 552, 335 A.2d at 724. See also Sager and Sager v. Bock, 280 Pa.Superior Ct. 459, 421 A.2d 812 (1980). Certainly, this rationale applies with equal force to local Rule 108, which contains the same directive as the statute which we interpreted in Black and Brown, Inc. Therefore, the question to be decided by the lower court in the instant case is not whether appellant in fact paid all record costs, but whether appellant made a valid and timely attempt, and, at least, substantially complied with the requirement to pay record costs.

Accordingly, the herewithin matter is remanded for an evidentiary hearing on the issue of appellant’s payment or nonpayment of costs upon his appeal to the Court of Common Pleas on June 1, 1979, from the award of the board of arbitrators, entered May 3, 1979. If, after this evidentiary hearing, the court determines that appellant properly paid the costs, then the order of the Court of Common Pleas, dated March 13, 1981, which directed the case be quashed, is to be vacated and the case shall proceed to trial on the merits. If, however, the court finds that appellant did not properly pay costs, then the order quashing this case shall be reinstated. This court does not retain jurisdiction.

       The Act of June 16, 1836, P.L. 715 § 27; the Act of January 14, 1952, P.L. (1951) 2087, § 4; the Act of March 15, 1956, P.L. (1955) 1279, § 1, 5 P.S. § 71 (1963).
      This section was repealed effective June 27, 1980 by the Act of April 28, 1978, P.L. 202, No. 53, § 2(a), 42 Pa.C.S. (Supp.1978).
      The newest provisions in this area can be found at 42 Pa.C.S. §§ 7361, 7362 (Supp.1979).


author: HESTER, Judge: CAVANAUGH, Judge,

text:
    468 A.2d 814
    COMMONWEALTH of Pennsylvania, Appellant, v. Ronald C. DANIELS.
    Superior Court of Pennsylvania.
    Argued Sept. 13, 1983.
    Filed Dec. 2, 1983.

      Ronald Eisenberg, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Vivian A. Sye-Payne, Philadelphia, for appellee.
    Before CAVANAUGH, MONTEMURO and HESTER, JJ.
   HESTER, Judge:

On January 24, 1980, appellant, Ronald C. Daniels, was charged with possession with intent to deliver a controlled substance, knowingly or intentionally possessing a controlled substance and the manufacture of a controlled substance. He was held for court on all but the charge of manufacture of a controlled substance. The original 180-day run-date under Pa.R.Crim.P. No. 1100 was July 22, 1980.

On July 21, 1980, the Commonwealth filed a Petition for Extension under Rule 1100(c). Said petition was granted and the run-date was extended to October 13, 1980. On October 9, 1980, a second petition for the extension of the 180-day period was filed; it too was granted with the proviso that no further extensions be granted. The run-date was therein extended to December 10, 1980.

On December 10, 1980, the day of trial, the Commonwealth’s only witness, a police officer, was “on-call” and was on his way to court when the case was called. In deference to the “must be tried” order then in effect, the lower court dismissed the charges, sua sponte, pursuant to Rule 1100. The Commonwealth subsequently filed a Petition to Reconsider Discharge under Rule 1100. That petition was also denied and the Commonwealth filed this prompt appeal.

Pennsylvania Rule of Criminal Procedure 1100 serves the dual purpose of protecting the accused’s speedy trial rights and assuring the public that trials will be commenced promptly so that those convicted will be readily punished. Where an extension of the trial date beyond the 180-day period is requested, and the Commonwealth neither purposefully abuses the accused’s speedy trial rights nor lacks due diligence in preparing the prosecution, said 180-day period should not be strictly enforced. Commonwealth v. Reihart, 302 Pa.Super. 515, 449 A.2d 35 (1982); Commonwealth v. Long, 288 Pa.Super. 414, 432 A.2d 228 (1981); Commonwealth v. Genovese, 493 Pa. 65, 425 A.2d 367 (1981).

It is to be noted here this matter was continued on two occasions prior to the Commonwealth’s final request on December 10, 1980. These two earlier Commonwealth petitions for extensions were granted due to defense counsel’s illness, appellee’s illness and defense counsel’s busy schedule. The Commonwealth was prepared to proceed at each of the earlier trial listings.

Normally, the Commonwealth’s due diligence is discussed where the court is considering the propriety of an application for an extension of the 180-day run-date. See, Pa.R. Crim.P. No. 1100(c)(3). Here, there was no such application. When the case was called for trial on the extended run-date and the Commonwealth’s only witness was not present, the court dismissed the charges. We do believe, however, that the due diligence standard and the reasonableness of the Commonwealth’s actions are also pertinent where the court, of its own volition, dismisses the charges on the run-date with a few hours remaining on that day’s court calendar.

We have held that the practice of placing Commonwealth witnesses on call in order that they would be available for trial within a short period of time does not constitute lack of due diligence. Commonwealth v. Sheppard, 305 Pa.Super. 283, 451 A.2d 533 (1982). In Sheppard, supra, this Court held:

The issue presented by this Commonwealth appeal is whether placing a Commonwealth witness on call, so that she would be available for trial within minutes, constitutes a lack of due diligence entitling defendant to a discharge from criminal liability under Pa.R.Crim.P. 1100. We hold that such is not a lack of due diligence; therefore appellant’s convictions for robbery and related offenses will be reinstated and the case remanded for further proceedings consistent with this opinion.

Id., 305 Pa.Superior Ct. at 289, 451 A.2d at 535-536. In support of its holding, the Sheppard court made the following policy statements:

The well-established practice of placing a witness on call at his or her home or place of business preserves the time, expense, and future availability of the witness. It insures that when the defense is actually ready to proceed to trial, the Commonwealth will be ready, unhampered by disillusioned witnesses who have “given up” on the case and stopped showing up for trial listings.
The lower court granted relief on an erroneous legal theory and incorrectly concluded that the Commonwealth was not prepared or duly diligent simply because its complaining witness was on call. When the interest at risk is the public’s right to the imposition of appropriate punishment for defendant’s predatory conduct, the lower court’s eagerness to discharge defendant under Rule 1100 in order to express its disapproval of the Commonwealth’s following the well-established practice of having its witness on call, conveys the unfortunate impression of ‘[s]trained and illogical judicial construction, [which] adds nothing to our search for justice, but only serves to expand the already bloated arsenal’ of criminal defendants. Commonwealth v. Genovese, 493 Pa. at 72, 425 A.2d at 371.
Id., 305 Pa.Superior Ct. at 290-291, 451 A.2d at 536-537.

We further note that the court’s dismissal was premature. It would be anomalous indeed to permit the sua sponte dismissal of the action under Rule 1100 where several hours remained on the run-date, while it is firmly held that a petition to dismiss presented on the 178th or 179th day shall be denied because the period has not expired. Commonwealth v. Robinson, 238 Pa.Super. 508, 362 A.2d 1005 (1976).

This case was dismissed at 12:45 p.m. There is no evidence that the assigned trial judge nor any other judge was unable to commence trial later that afternoon. Moreover, the Commonwealth did act reasonably and with due diligence in securing its only witness for trial. Unfortunately, that witness was a police officer whose presence in the station or on a beat is equally important for law enforcement purposes as his service as a prosecution witness. For this reason, we will not deem the Commonwealth’s trial preparation as slothful. The witness was “on call”, had been notified of the immediacy of trial and was, in fact, proceeding to the courtroom at the time of dismissal. Barring unforeseen circumstances, he would have arrived in court in time to justify the commencement of trial later that day.

The Commonwealth was not frantically seeking time in order to prepare its case at the last moment; preparation was complete and it was simply waiting the arrival of its sole witness. More importantly, the run-date had not expired. For these reasons, we reverse and remand for trial.

Reversed and remanded.

CAVANAUGH, J., filed a dissenting statement.

CAVANAUGH, Judge,

dissenting:

I respectfully dissent. The facts of this case must be viewed in the context of the trial judge’s obligation to manage the proceedings in his courtroom. In this case, an extension of time in which to commence trial was granted by Judge Caesar until December 10, 1980. The order provided that the trial date was “not to be further extended.” At the opening of court on December 10, 1980, the trial court was told by the prosecutor that the state’s only witness, a police officer, was “on call”. The judge was told at 10:30 a.m. that the witness was “on his way.” The court was waiting to commence trial but could not do so until the witness for the prosecution was present in court. At noon the court told the prosecutor that if the witness was not present by 12:30 the case would be dismissed, and, in fact, the case was dismissed at about 12:45 p.m. as the witness had not appeared.

The court below in its opinion concisely sets forth the heart of the matter in this case. The judge stated:

This Court defends itself in this matter due to the proper administration required by its supervisory capacity. In this case the Commonwealth being fully aware that the case was ordered tried on December 10, 1980, nevertheless indicated to the Court that it had placed a witness on call rather than have him present in the Courtroom at 9:30 A.M. as most witnesses are required.

The court is charged with the duty of judicial administration. The trial judge must be in charge of his courtroom and he properly dismissed the case since the Commonwealth did not comply with his directive to proceed at 12:30 p.m. The prosecutor’s statement on the trial date that “we have until midnight to try this case” was improper in view of the trial judge’s directive that trial be commenced no later than 12:30 p.m.

I would affirm.

      . The Commonwealth had actually subpoenaed two police officers for trial with the opinion that either one would sufficiently serve the prosecution. One officer was unavailable due to employment-related injuries. The other officer was summoned to court from the Police Administration Building in Philadelphia on the day of trial.

      . We are troubled by the court's dismissal of the proceedings without motion by appellee. Rule 1100 does not expressly preclude the court’s sua sponte dismissal; however, Rule 1100(f) discusses the defendant's motion to dismiss. No provision provides for the court’s sua sponte dismissal. • This issue, though deserving of attention, is not considered due to our disposition of the remaining issue raised by the Commonwealth.


author: PER CURIAM:

text:
    468 A.2d 817
    Roman HARASYM v. PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, Philadelphia Electric Company and the City of Philadelphia. Appeal of the CITY OF PHILADELPHIA.
    Superior Court of Pennsylvania.
    Argued Sept. 20, 1983.
    Filed Dec. 2, 1983.

      Sarah Makin, Assistant City Solicitor, Philadelphia, for appellant.
    Alexander Zdrok, Philadelphia, for Harasym, appellee.
    Claudia J. Martin,' Philadelphia, for Pa. Dept, of Trans., appellee.
    Wayne M. Thomas, Philadelphia, for Phila. Elec. Co., appellee.
    Before CIRILLO, JOHNSON and CERCONE, JJ.
   PER CURIAM:

Appellant City of Philadelphia brings this appeal from the order of the trial court dated December 23, 1981 denying appellant’s motion to open judgment or in the alternative to reconsider its order of November 10, 1981. Because the order of December 23 is not a final order, we quash the appeal.

The instant action arose from an automobile accident on July 27, 1978 in which plaintiff Harasym was injured when his vehicle struck a utility pole owned by Philadelphia Electric Company (PECO) on a state highway maintained by the Pennsylvania Department of Transportation (PennDot). PECO, in turn, joined appellant as an additional defendant and filed a crossclaim against appellant.

On May 6,1980 PECO served a Request for Production of Documents upon appellant. PECO filed a motion for sanctions on March 2, 1981, as appellant had failed to produce the requested documents. The trial court then ordered appellant to produce the requested documents within 20 days or be subject to further sanctions. Upon appellant’s production of only certain documents, and pursuant to PECO’s second sanctions motion on September 4, 1981, the trial court entered an order on November 10, 1981 granting judgment as to liability in favor of PECO against appellant on PECO’s crossclaim, conditioned on the plaintiff’s prevailing against PECO in the original complaint, which had not proceeded to trial at that time.

That order set forth:

ORDER
AND NOW, to wit, this_day of November, 1981, no Answer or Answering Memorandum having been filed by Defendant, City of Philadelphia, Defendant’s, Philadelphia Electric Company, Motion for Sanctions is granted and it is Ordered that judgment as to liability be entered against Defendant, City of Philadelphia, in favor of Defendant, Philadelphia Electric Company, in the crossclaim should Plaintiff prevail against said Defendant, for Defendant’s, City of Philadelphia, failure to produce documents as directed in our Order of March 2, 1981, it appearing that said Defendant will be prejudiced in the defense of this claim by the failure of the Additional Defendant to furnish the documents requested.
BY THE COURT:
Greenberg, J.
11/10/81

This court has jurisdiction over “all appeals from final orders of the courts of common pleas.” Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa.C.S. § 742 (effective June 27, 1978) (emphasis added). A final order is an order which either ends the litigation or disposes of the entire case. Piltzer v. Independence Federal Savings and Loan Association, 456 Pa. 402, 319 A.2d 677 (1974); Bracken v. Bracken, 294 Pa.Super. 371, 439 A.2d 1247 (1982).

The order in the instant case did not determine the rights of the parties in any final way. The trial court has •merely determined that, should PECO be liable for the plaintiffs injuries, then appellant would be liable, as the order substitutes appellant for PECO. No determination has yet been made concerning PECO’s liability to the plaintiff. As such, the order is expressly conditional and therefore not reviewable on appeal. Commonwealth ex rel. Blatt v. Parker, 165 Pa. 213, 30 A. 675 (1895).

We find the instant case similar to that in Navarro v. Ohio Casualty Insurance Company, 295 Pa.Super. 151, 441 A.2d 394 (1982), where a grant of summary judgment on liability only without entry of judgment against any party was held not to be a final order for purposes of appeal. See also Pa.R.C.P. 1035(b) (summary judgment on liability alone is interlocutory).

Appeal quashed.


text:
    468 A.2d 818
    Gerald Alan WILSON, Administrator, C.T.A. of the Estate of Eleanor D. Wilson, Deceased and Louis D. Wilson, as surviving spouse on behalf of himself and on behalf of all other survivors of Eleanor D. Wilson, Deceased, v. KEYSTONE INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 20, 1982.
    Filed Dec. 16, 1983.
    Petition for Allowance of Appeal Granted March 15, 1984.

      Hugh Hutchison, Philadelphia, for appellant.
    Eli N. Donsky, Philadelphia, for appellees.
    Before JOHNSON, WATKINS and LIPEZ, JJ.
   OPINION

PER CURIAM:

The sole issue in this appeal is whether basic loss benefits under the Pennsylvania No-Fault Motor Vehicle Insurance Act may be “stacked.” We have held up disposition of this appeal until the issue could be determined by this court en banc, which has now held that basic loss benefits may not be stacked. Antanovich v. Allstate Insurance Company, 320 Pa.Super.Ct. 322, 467 A.2d 345 (1983). Since the court below computed the amounts the insurance company was ordered to pay under the assumption that benefits may be stacked, we must vacate the order and remand with a direction to recompute the benefits in accordance with Antanovich v. Allstate Insurance Company, supra.

Order vacated, and case remanded with instructions. Jurisdiction is relinquished.


author: CAVANAUGH, Judge:

text:
    468 A.2d 1098
    In the Matter of the ADOPTION OF Gene Tuney MULLEN. Appeal of Mary Ann Mullen WARD.
    Superior Court of Pennsylvania.
    Submitted March 31, 1983.
    Filed Oct. 28, 1983.
    Reargument Denied Jan. 12, 1984.
    Petition for Allowance of Appeal Granted May 21, 1984.

      Gary Eiben, Erie, for appellant.
    Jeffrey A. Connelly, Erie, for appellee.
    William A. Dopierala, Erie, for participating party.
    Before CAVANAUGH, BROSKY and MONTGOMERY, JJ.
   CAVANAUGH, Judge:

This is an appeal from the final decree of the Orphans’ Court Division of the Court of Common Pleas of Erie County terminating the parental rights of appellant Mary Ann Mullen Ward to her natural son Gene Tuney Mullen. Appellee is Children’s Services of Erie County (hereinafter “Children’s Services”).

The lower court found that grounds for termination existed under three alternate provisions of the Adoption Act, specifically 23 Pa.C.S. § 2511(a)(1), (2) and (5). Appellant contends that the evidence is insufficient to establish grounds for involuntary termination under any one of these three statutory provisions. We agree with appellant and reverse.

For the purpose of this appeal, we may assume that the proper scope of review in cases of involuntary termination of parental rights is limited to determining whether the decree of the Orphans’ Court is supported by competent evidence. In re L.A.G., 490 Pa. 85, 415 A.2d 44 (1980). “The adjudication of the Orphans’ Court will not be disturbed if ‘the record is free from legal error and ... if the chancellor’s findings are supported by competent and adequate evidence, and are not predicated upon capricious disbelief of competent and credible evidence.’ ” In re Burns, 474 Pa. 615, 624, 379 A.2d 535, 540 (1977) (citations omitted) (quoting Cohen Will, 445 Pa. 549, 550, 284 A.2d 754, 755 (1971)). In applying this standard to the instant case, the record discloses the following facts.

Gene was born to appellant on October 28, 1976. Problems first appeared in August of 1978 when, in connection with a special pre-school program, a routine physical examination of the child showed that he had “failed to thrive” and had not received standard immunizations.

A more serious problem surfaced in September of 1979 when a school nurse noticed a burn injury which had been treated in an unsanitary way. This incident triggered a referral to Children’s Services, which investigated the burn and evaluated the home situation. While the burn appeared to have been accidental, the home was found to be disorganized, dirty and roach-infested. It was clear that appellant was having a very difficult time coping with Gene, who was himself diagnosed as hyperactive, with developmental delays and under the best of circumstances a difficult-to-manage child. Appellant was determined to be an individual who was “intellectually limited,” with a low threshold for frustration, and whose personal life was in turmoil. All of this combined to create an unworkable situation for raising Gene and after meeting with Children’s Services, appellant on September 20, 1979, voluntarily placed him in the care of the agency, which in turn made a foster family placement. After the voluntary placement, there were several supervised visits and meetings with Children’s Services until November 30, 1979, when Gene was adjudicated dependent. In conjunction with the dependency adjudication, a schedule of fifteen visits between appellant and her child were established.

During the next ten months, appellant managed to keep eight of the fifteen visits, although Children’s Services testified that these were only of limited value because of appellant’s continuing inability to control her child’s behavior and interact in a constructive way. Also during this period, Children’s Services arranged for individual counseling, but appellant failed to follow through on all but one of the sessions. Although appellant has consistently professed her love for and interest in Gene, the record indicates that she frequently allowed other personal problems to interfere with her efforts to reunite with him. On June 12, 1980, appellant was married to her present husband, Ward.

On September 30, 1980, the Orphans’ Court reviewed its November 30, 1979, dependency adjudication and allowed appellant an additional ninety days to improve her cooperation with Children’s Services. During this ninety day period appellant attended three of six scheduled parenting classes, participated in two home visits with Gene and persuaded her reluctant husband to submit to psychological testing and evaluation. Notwithstanding these efforts, on January 12, 1981, Children’s Services decided to file a petition to involuntarily terminate appellant’s rights, and ended all cooperation with appellant and her efforts to reunite with Gene.

On June 3, 1981, appellant had a child by her husband, and in August of 1981 a new Children’s Services case worker was assigned. Although it took a few months for the new caseworker to form a rapport with appellant and her husband, regular visits were ultimately established. At the final hearing on the petition, it appeared through the uncontradicted testimony of this caseworker that appellant, her husband and her then ten-month-old baby had moved to a new apartment and were cooperating fully. The caseworker further testified that the new home was clean and orderly, and that appellant was caring properly for her new baby.

While prior Pennsylvania cases had held that the standard of proof in involuntary termination of parental rights cases was a preponderance of the evidence, the United States Supreme Court recently held that such cases must be proved by clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Appeal of G.J.A., 304 Pa.Super. 21, 450 A.2d 80 (1982). “Clear and convincing evidence is ‘... testimony [that] is so clear, direct, weighty and convincing as to enable the jury to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.’ ” In re Jackson, 267 Pa.Super. 428, 431, 406 A.2d 1116, 1118 (1979) (quoting LaRocca Trust, 411 Pa. 633, 640, 192 A.2d 409, 413 (1963)).

The first of the three statutory provisions relied upon by the lower court provides that a parent’s rights may be terminated if

[t]he parent by conduct continuing for a period of at least six months either has evidenced a settled purpose of relinquishing parental claim to child or has refused or failed to perform parental duties.

23 Pa.C.S. § 2511(a)(1).

This section, thus, contains two alternate grounds for termination: one requiring a “settled purpose” to relinquish parental rights and the other requiring a “refusal or failure” to perform parental duties. In Interest of T.S.L., 487 Pa. 245, 409 A.2d 332 (1979). Although these two grounds are independent, both require a showing of continuous conduct for at least six months. The lower court found such conduct for a period of approximately one and one-half years, from August 13, 1979, to January, 1981. Lower court opinion at 6.

With regard to the first alternative ground, our Supreme Court has said:

[a] “settled purpose” to relinquish parental claims requires a deliberate decision by the parent to terminate the parental relationship, and the parent must persist in that determination throughout the six-month period. Thus, this Court has required an “ ‘affirmative indication of a positive intent,’ ” as well as a “finality of purpose,” before sustaining a conclusion of a “settled purpose.” Moreover, any action by the parent within the six-month period inconsistent with such “settled purpose” will preclude an involuntary termination of that parent’s rights.

In re Adoption of R.W.B., 485 Pa. 168, 174, 401 A.2d 347, 350 (1979) (citations omitted).

The undisputed evidence and finding of the lower court was that appellant consistently proclaimed her interest in Gene throughout the one and one-half year period. Lower court opinion at 6. Thus, contrary to the lower court’s conclusion, appellant affirmatively indicated a settled purpose to retain her parental rights, rather than a deliberate decision to relinquish them. The evidence, therefore, does not sustain a decree of termination on this ground.

With respect to the second ground under § 2511(a)(1), requiring a six month refusal or failure to perform parental duties, the evidence indicates that between August 13, 1979, and November 30, 1979, appellant met with Children’s Services, decided to voluntarily place Gene for his own benefit and visited with the child several times. Between November 30, 1979 and September 30, 1980 appellant admittedly missed several visits with Gene and failed to follow through on the counselling program; however, during this period of personal crisis, she did manage eight visits with the child. Between September 30, 1980 and January, 1981, appellant had two home visits with Gene, attended three of six scheduled parenting classes and prevailed upon her husband to submit to psychological testing.

We have often held that:

[pjarenthood is not ... a mere biological status, or passive state of mind which claims and declines to relinquish ownership of the child. It is an active occupation, calling for constant affirmative demonstration of parental love, protection and concern ... [A parent] must exert himself to take and maintain a place of importance in the child’s life...

Appeal of Diane B., 456 Pa. 429, 433, 321 A.2d 618, 620 (1974). “Accordingly, when a child has been placed in foster care, a parent has an affirmative duty to work towards the return of the child.” In re William L., 477 Pa. 322, 333, 383 A.2d 1228, 1233 (1978), cert. denied, 439 U.S. 880, 99 S.Ct. 216, 58 L.Ed.2d 192 (1978).

The record reveals that the appellant originally placed Gene for his own benefit, visited the child throughout the one and one-half year period identified by the lower court and took other substantial steps toward reunion with her son. Furthermore, it is undisputed that appellant is an emotional woman of limited intelligence who was going through a difficult period of personal crisis. Under these circumstances we believe that the lower court erred in finding that appellant had refused or failed to perform her parental duties for a continuous period of six months.

The two other statutory provisions relied upon by the lower court provide that a parent’s rights may be terminated if

(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.
(5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.

23 Pa.C.S. § 2511(a)(2), (5).

While subsection (a)(2) relates to parental failure or abuse, and subsection (a)(5) relates to voluntary or court ordered removal, both subsections, in substantially similar language, require a finding that the underlying conditions cannot or will not be remedied. In Interest of C.M.E., 301 Pa.Super. 579, 448 A.2d 59 (1982).

Children’s Services own caseworker testified that appellant and her husband were cooperating well with the agency and were providing a clean and satisfactory home, as well as proper care for their ten-month-old baby, at the time of the final hearing on the petition; This testimony was uncontradicted. Thus, contrary to the lower court’s findings, the record shows not only that the underlying conditions of Gene’s placement could be changed, but to a great extent they had been changed. We, therefore, conclude that the record fails to support the lower court’s ruling under both subsections 2511(a)(2) and (a)(5).

We find Judge Woodside’s observation with regard to the state’s power to remove a child from his natural parents, of even greater significance where, as here, the state attempts to finally and permanently sever a natural parent’s relationship with his or her child:

A child cannot be declared ‘neglected’ merely because his condition might be improved by changing his parents. The welfare of many children might be served by taking them from their homes and placing them in what the officials consider a better home. But the Juvenile Court Law was not intended to provide a procedure to take the children of the poor and give them to the rich, nor to take the children of the illiterate and give them to the educated, nor to take the children of the crude and give them to the cultured, nor to take the children of the weak and sickly and give them to the strong and healthy.
Rinker Appeal, 180 Pa.Super. 143, 148, 117 A.2d 780-783 (1955).

Since we find that none of the statutory provisions relied upon by the lower court are sustained by the record, we reverse.

      . The parental rights of the natural father, Gene Tuney Cooner, were terminated by order of the same court; however, he is not a party to this appeal. It should also be noted that appellant has since married her present husband, Ward, and has had one child by that marriage.

      . Because we agree with appellant that the evidence was insufficient to support an involuntary termination, we need not consider her second contention that the lower court erred in terminating her rights on a ground not alleged in the petition.

      . We recognize that the issue of the proper scope of review applied in custody cases is presently before our en banc Court in the case of In re Donna Williams, 674 Pittsburgh, 1981, argued May 10, 1983; however, the exercise of a different scope of review in this case would not affect the result.

      . During this period, appellant had a series of live-in boy friends who have threatened and physically abused her. Her problems with these men continued until June 1980, when she married her husband, Ward.

      . For reasons not appearing in the record, this petition was not actually filed until June 17, 1981.

      . The lower court indicated that it was "clearly convinced” that the requirements for termination of appellant's parental rights had been met. Lower court opinion at 7. However, nowhere in the lower court’s opinion is there a discussion of this standard or its application to the particular facts of this case. Although it is thus unclear as to the burden of proof applied by the lower court, we need not remand as we have in other cases, see, e.g., In re: Adoption of N.N.C., 315 Pa.Super. 457, 462 A.2d 284 (1983). Rather, since we find that the evidence does not meet even the preponderance standard, we will reverse without remand. See In re: Involuntary Termination of Parental Rights to B.L. and J.L., 316 Pa.Super. 175, 462 A.2d 851 (1983).

      . It may be argued that during the ten month period from November 1980, to September, 1981, there could have been a six month period where there were no visits; however, the lower court does not identify, nor does the record suggest any such specific six month period. The evidence only shows a ten month period, during which there were eight visits.


author: CIRILLO, Judge:

text:
    468 A.2d 1103
    ESTATE OF Edith HOFFMAN, Deceased, Appellant, v. J. Ralph HOFFMAN.
    Superior Court of Pennsylvania.
    Submitted May 26, 1983.
    Filed Nov. 10, 1983.

      Henry M. Horvat, Jr., Pittsburgh, for appellant.
    Thomas P. Geer, Pittsburgh, for appellee.
    Before CAVANAUGH, ROWLEY and CIRILLO, JJ.
   CIRILLO, Judge:

The Estate of Edith Hoffman seeks to collect on a judgment note issued by Edith’s former husband, Ralph Hoffman. A resolution of the issues turns upon a series of financial transactions between the Hoffmans.

In August 1971, Edith and Ralph purchased a tavern for $135,000.00. The land, valued at $100,000.00, was titled in both names; the business and liquor license, valued at $35,000.00, were titled exclusively in Ralph’s name. To finance the purchase, Ralph and Edith jointly gave a $65,-000.00 mortgage for the land, and Edith supplied the $70,-000.00 balance from her own resources. Edith’s funds apparently paid for the $35,000.00 cash payment on the land and Ralph’s business and liquor license. To compensate Edith for his interest in the property, his portion of the closing costs, and the business and liquor license, Ralph issued the $54,947.38 demand judgment note presently before the Court.

One year later, the parties sold the tavern for slightly less than their purchase price. In that transaction, the buyer assumed the $65,000.00 mortgage on the tavern, with the Hoffmans pledging their marital abode to the mortgagee as additional collateral. The two took from the buyer a $40,000.00 second mortgage with monthly payments over a five year period of $792.84. They also received a cash payment of $20,823.77 in the form of a check which was deposited in one bank and immediately paid out to another bank for the purchase of a certificate of deposit in the name of “Mrs. Edith Hoffman, in trust for John Ralph Hoffman.”

“One who deposits money in a savings account in [her] own name in trust for another establishes a totten trust.” In re Estate of McFetridge, 472 Pa. 546, 550, 372 A.2d 823, 825 (1977). See 20 Pa.C.S. 6304(b). By creating a Totten trust, Edith retained complete control of the funds and could revoke the trust at will. If she did not revoke the trust, any balance in the account at her death inured to Ralph. McFetridge, supra.

From November 1972 until November 1977, payments for the second mortgage were sent to the Hoffmans. Ralph received the first seven payments, amounting to $5,549.88. Ralph and Edith jointly received the next six, amounting to $4,757.04. Edith received the remaining forty-seven, amounting to $37,163.48.

In January 1974, the judgment note was filed and judgment confessed.

In December 1975, Ralph deeded to Edith his interest in the marital property. Edith sold the property one year later for $47,500.00, and after satisfying the mortgage and paying closing costs she received net proceeds of $32,-000. 00. To satisfy the mortgagee’s continued request for collateral on the tavern mortgage, Edith placed these proceeds, along with an additional $8,000.00, into another Tot-ten trust with Ralph as beneficiary.

Finally, in June 1978, Ralph divorced Edith and one month later Edith died. Edith’s estate then sought execution on Ralph’s note, and Ralph succeeded in opening judgment. In its opinion, the lower court found that the transactions outlined above were relevant to the value of the judgment note and reduced Ralph’s balance on the note to $7,000.00.

The trial court reached its award by the following calculations. Since Ralph’s interest in the tavern amounted to $50,000.00 in the land plus $35,000.00 in the business and liquor license, his $85,000.00 portion in the $135,000.00 tavern placed his interest in the tavern proceeds at 62.96%. This left Edith’s interest at 37.04%. To start, Ralph issued the judgment note for $54,947.38 in August 1971. Interest to October 1972 raised the note’s value to $58,793.69. From this figure the court deducted $13,110.65 as Ralph’s 62.96% interest in the $20,823.77 check from the sale of the tavern. This reduced Ralph’s balance to $45,683.04 as of October 1974. Interest to December 1976 raised Ralph’s liability by $11,420.76 to $57,103.80. The trial court next deducted the following three sums: $23,750.00 as Ralph’s one-half interest in the marital property, $2,378.52 as one-half the value of the six monthly payments jointly received, and $17,471.02 as Ralph’s 62.96% in the thirty-five monthly payments received by Edith to December 1976. These three deductions amounted to $43,599.54, and reduced the balance to $13,-504.26 as of December 1976. After adding $742.72 for interest to November 1977, the court deducted $4,991.72 as Ralph’s 62.96% interest in the ten monthly payments received by Edith to November 1977. Finally, the court deducted $2,255.76 as amortization on the principle debt and as an offset from other accounting adjustments, arriving at a balance of $7,000.00 plus interest from November 1977. The Estate of Edith Hoffman appeals.

The first issue on appeal is the relevancy of the transactions that followed the purchase of the tavern. The facts of the transactions reached the trial court upon stipulation. Appellant, however, stipulated to the transactions on condition that the court would rule them relevant. Appellant now argues that the court erred in its ruling because the transactions were not formally linked to the judgment note. Appellant would have us consider the financial dealings between Edith and Ralph as matters dealt with at arm’s length between business associates, and would require Ralph to show a direct link between the judgment note and the subsequent receipt of funds. We cannot accept this reasoning.

The law furnishes no test of relevancy, but tacitly refers it to logic and general experience. Evidence is admissible which tends to make the fact at issue more or less probable or intelligible or to show the origin and history of the transaction between the parties.

Gregg v. Fisher, 377 Pa. 445, 454, 105 A.2d 105, 110 (1954) (emphasis added). See Reichman v. Wallach, 306 Pa.Super. 177, 452 A.2d 501 (1982). “Relevant evidence'must in some degree advance the inquiry and thus have probative value.” Bowers v. Garfield, 382 F.Supp. 503, 510 (E.D.Pa.), aff'd 503 F.2d 1398 (3rd Cir.1974). See C. McCormick, McCormick’s Handbook on Evidence, 318-19 (1972); 1 Wigmore, Evidence § 29 (1940 & Supp.1983).

Although neither party presented direct evidence connecting the judgment note to the subsequent transactions, we believe that, based upon “logic and general experience” the trial court was justified in finding that Ralph and Edith Hoffmans’ financial dealings were interrelated. Edith retained Ralph’s share of the check from the tavern sale and the forty-seven installments on the second mortgage. Since Ralph earned his share of these payments from an investment made possible by Edith’s loan, it would be inequitable to hold that Ralph’s payments to Edith were not repayments on the loan. Otherwise the situation would be one where Edith loaned money to Ralph for an investment, Edith received Ralph’s returns from the investment, and Edith continued as a creditor of Ralph for the full amount of the loan, leaving Ralph with nothing. Nothing in the evidence suggests that the transactions were inter vivos gifts from Ralph to Edith. The most logical inference is that the subsequent dealings were payments on the note. In these circumstances, evidence of subsequent transactions between husband and wife is relevant to the balance remaining on a judgment note.

The remaining issues concern the trial court’s computation of credits to Ralph for the transactions that followed the issuance of the note. Edith’s estate first alleges that the trial court erroneously credited Ralph for his portion of the check from the sale of the tavern. Specifically, Edith’s estate alleges that Ralph should not be credited for his share of the cheek from the sale of the tavern because the funds were paid jointly to Ralph and Edith and channelled through a joint account before being placed into the Totten trust which ultimately benefitted Ralph. The check was issued to Edith and Ralph at settlement since they were co-owners. The funds immediately passed through the joint account, but the money was paid out in a certificate of deposit in Edith’s name. By the wording of the certificate, Edith specifically created a Totten trust which she alone controlled. That she chose to establish the trust with Ralph as beneficiary at her death does not disturb our ruling that Ralph was appropriately credited for his portion of the check from the tavern sale. We believe that the trial court’s ruling to credit Ralph for his portion of the check is amply supported by the record. The Totten trust gave Edith the power to terminate Ralph’s interest at will. McFetridge, supra. Once Edith obtained the funds in the account she could do with them as she wished and she chose to maintain absolute control over the money throughout her lifetime. Ralph was therefore properly credited for his share of the funds that Edith used to establish the trust.

Appellant also alleges error in the trial court’s accounting for the mortgage payments made to the Hoffmans by the buyer of the tavern. In its computation for these payments the court credited Ralph for the forty-seven payments to Edith; failed to credit Edith’s estate for the seven payments made to Ralph; and credited Ralph for one-half of the six payments made to both parties. Appellant does not challenge the validity of the credits to Ralph for his portion of the funds paid exclusively to Edith. Appellant challenges the other two credits made by the court. We agree that both of these credits were erroneous.

First, since Ralph was credited for funds received by Edith, the estate should be credited for those made to Ralph. The trial court apparently overlooked this point of equity. Crediting the estate for this error increases Ralph’s liability by $2,048.68.

The court also erroneously credited Ralph for one-half of the payments jointly received. Absent evidence that Ralph did not receive his share, the Court must assume that he did “in fact receive his portion of the funds paid to both parties. Because no evidence of this nature was presented, .nor did the trial court otherwise support this credit, we must vacate the $2,378.52 therein granted to Ralph.

Finally, appellant contends that the trial court erroneously valued Ralph’s interest in the marital property. The court’s $23,750.00 credit represents one-half of the gross proceeds for the $47,500.00 sale of the property. As appellant alleges, this credit overlooked the mortgage payment and closing costs which limited net proceeds to $32,-000.00 and thereby set the value of Ralph’s interest at only $16,000.00. Since the court credited Ralph for $23,750.00, a correction of this error further increases Ralph’s liability by $7,750.00.

Although both parties make subsidiary arguments concerning Ralph’s interest in the property, upon review, we find them unconvincing.

The trial court’s order is therefore adjusted to increase the balance remaining on the judgment note by the following amounts: $2,048.68 crediting Edith’s estate for her share of the second mortgage payments received by Ralph; $2,378.52 eliminating Ralph’s credit for the mortgage payments jointly received; $7,750.00 correcting the value of Ralph’s interest in the marital property; and $669.68 adjusting the November 1977 interest credit to account for the above adjustments. This sets the balance remaining on the note at $19,846.88 plus interest from November 1977.

The order of the Court of Common Pleas of Allegheny County is therefore affirmed in part and reversed in part, in accordance with this Opinion.

APPENDIX

Trial Court Computations Calculations with Adjustments

54,947.38 + 3,846.31 58,793.69 Original Value August 1971 Interest to October 1972 54,947.38 + 3,846.31 58,793.69

-13,110,65 45,683.04 Ralph’s interest in cheek from sale of -13,110.65 tavern 45,683.04

11,420.76 57,103.80 Interest to December 1976 +11,420.76 57,103.80

-23,750.00 Ralph’s interest in marital abode -16,000.00

- 2,378.52 Ralph’s interest in monthly payments 0.00 jointly received

0.00 Edith’s interest in monthly payments re- + 2,048.68 ceived by Ralph

-17,471.02 13,504.26 Ralph’s interest in monthly payments re- -17,471.02 ceived by Edith to December 1976 25,681.46

+ 742.72 Interest to November 1977 + 1,412.40

- 4,991.72 9,255.26 Ralph’s interest in remaining monthly pay- - 4,991.72 ments received by Edith 22,102.14

- 2,255.26 Credit for amortization and other account- - 2,255.26 ing adjustments

$7,000.00 Balance not including interest from No- $19,846.88 vember 1977

      . See Appendix at "Trial Court Calculations” for a balance sheet of the following calculations.

      . $2,048.68 represents the $792.84 amount of each payment, multiplied by the seven payments to Ralph, multiplied by the 37.04% which the trial court determined represents Edith’s interest in the payments.

      . See the Appendix at “Calculations with Adjustments” for clarification of these amounts.


author: JOHNSON, Judge:

text:
    468 A.2d 1107
    In re ESTATE OF Bridget DEMBIEC, Deceased, Appeal of Henrietta THIER, Theresa Fennick, Elaine Meyers, Leon Raykovitz, Harold Raykovitz, Helen Hoffman, Louise Bilahorka, Edward Hendricks and Leonard Hendricks, Appellants, v. Mary BOCZAR, Administratrix.
    Superior Court of Pennsylvania.
    Argued March 24, 1983.
    Filed Nov. 10, 1983.

      Joseph G. Albert, Wilkes-Barre, for appellants.
    Richard James Confair, Wilkes-Barre, for appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   JOHNSON, Judge:

This case concerns the ownership of the monies in two savings accounts on deposit at the Northeastern Bank of Pennsylvania in Wilkes-Barre, Pennsylvania.

Prior to August 1979, both accounts were solely owned by Bridget Dembiec. On August 31, 1979, Mary L. Boczar returned an executed signature card to the bank, to have the first of Miss Dembiec’s accounts converted to joint ownership. Then on October 9, 1979, Miss Dembiec affixed her mark to a second signature card and the second account was converted to joint ownership. Miss Dembiec (hereinafter decedent) passed away intestate on October 10, 1979. At the time of decedent’s death, both accounts were titled in her name and that of her sister, Mary L. Boczar. The balances in each of the two accounts when decedent died were $58,957.65 and $56,726.72. Shortly after decedent’s death Mrs. Henrietta Thier, an appellant herein, petitioned Orphans’ Court contending that the balances of the accounts did not belong to Mary L. Boczar, appellee herein, and seeking to have the accounts inventoried as part of the decedent’s estate and distributed to the intestate heirs. After a hearing on the merits of the petition, Orphans’ Court decreed that the monies on deposit belonged to appellee. Whereupon this appeal followed.

The decree of Orphans’ Court was based on the testimony of several witnesses.' Based on the evidence of decedent’s intent presented in the deposition testimony of decedent’s attorney, Ralph Johnston, Sr., coupled with the testimony of a Northeastern Bank employee, one Joan Dougherty, Orphans’ Court concluded that the evidence did not clearly and convincingly show that decedent did not intend to create a survivorship account when she executed the first signature card on August 31, 1979. Concerning the October 9th transaction, Orphans’ Court, relying on the testimony of an acquaintance of decedent, Mrs. Dorothea Johnson, concluded that the evidence did not clearly and convincingly indicate that decedent’s intentions in executing the second signature card were other than to create a survivorship account.

On appeal, the findings of an Orphans’ Court judge who hears testimony without a jury are entitled to the weight of a jury verdict. In re: Masciantonio’s Estate, 396 Pa. 16, 151 A.2d 99 (1959). This rule is particularly applicable “to findings of fact which are predicated upon the credibility of the witnesses, whom the judge has had the opportunity to hear and observe, and upon the weight given to their testimony.” Herwood v. Herwood, 461 Pa. 322, 336 A.2d 306 (1975). In reviewing the Orphans’ Court’s findings, our task is to ensure that the record is free from legal error and to determine if the Orphans’ Court’s findings are supported by competent and adequate evidence and are not predicated upon capricious disbelief of competent and credible evidence. In re: Estate of Damario, 488 Pa. 434, 412 A.2d 842 (1980). However, we are not limited when we review the legal conclusions that Orphans’ Court has derived from those facts. In re: Ischy Trust, 490 Pa. 71, 415 A.2d 37 (1980).

We turn now to consider the arguments of appellants and the evidence as to each of the separate transactions when the decedent added appellee’s name to her bank accounts.

August 31st Transaction

In Pennsylvania the ownership of funds held in a joint account is governed by statute. See 20 Pa.C.S.A. § 6301 et seq. The Decedents, Estates, and Fiduciaries Code provides that:

(a) Joint account. — Any sum remaining on deposit at the death of a party to a joint account belongs to the surviving party or parties as against the estate of the decedent unless there is clear and convincing evidence of a different intent at the time the account is created____

20 Pa.C.S.A. § 6304(a). The Official Advisory Comment to this section states that the effect of this provision is to make a joint account “a survivorship arrangement unless clear and convincing evidence of a different contention is offered.” The comment indicates that this section presumes “that most persons who use joint accounts want the survivor ... to have all balances remaining at death.”

Consistent with Section 6304(a), appellants argue that the evidence as to the August 31st transaction clearly and convincingly established that decedent did not intend a survivorship arrangement. Our review of the evidence reveals the following.

The parties stipulated that decedent executed a signature card that expressly stated that it created a joint account with right of survivorship. None of the circumstances attendant to the execution of this form were brought out at trial.

During appellants’ case, Miss Joan Dougherty, an employee of the Northeastern Bank of Pennsylvania, testified that near the end of August in 1979 appellee came to the bank seeking to have her name added to decedent’s bank account. Miss Dougherty testified that she called the decedent on the phone before giving appellee any forms to add a name to the account. Upon reaching decedent, Miss Dougherty told her that appellee was in the bank to add a name to her account and that the bank did not permit this unless the depositor was present. Miss Dougherty testified that decedent told her that she was ill and was waiting to go to the hospital and “that she wanted to have her sister’s name on the account in case she needed money while she was in the hospital...” Further, Miss Dougherty testified that nothing was said that would indicate whether decedent did or did not intend to give the money in the account to her sister. Signed forms creating the joint account were returned to the bank a short time after the day appellee received them.

Appellants contend that Miss Dougherty’s testimony was clear and convincing evidence that decedent intended to create a convenience account. Were this the only evidence of decedent’s intent, we would be inclined to agree.

However, in addition to the testimony of Miss Dougherty the Orphans’ Court considered the deposition testimony of Attorney Johnston. Attorney Johnston testified that he had been called to decedent’s hospital room on October 7, 1979 to discuss with decedent matters relating to the preparation of her will. Attorney Johnston stated that during that discussion, decedent “indicated that she had a bank account she thought she had already taken care of which was to go to her sister, Mary Boczar.” In concluding that appellants had not sustained their burden of proof, Orphans’ Court relied upon the statement attributed to decedent in Attorney Johnston’s deposition.

Based on the language of Section 6304(a), appellants argue that it was error for Orphans’ Court to consider this statement because it originated subsequent to the creation of the August 31st account. However, Section 6304(a) does not limit the admissibility of evidence of decedent’s intent to evidence that existed prior to or contemporaneous with the creation of the account. It merely requires that the evidence disclose the intentions of the decedent “at the time the account is created.” We therefore reject appellants’ argument.

As to the substance of the statement related by Attorney Johnston, we note first that it was a reference to the August 31st transaction. From decedent’s use of the phrase “already taken care of,” it can be inferred that decedent knew of the survivorship arrangement and understood that it would operate to transfer sole ownership of the account to appellee. Additionally we note that the statement clearly indicates that decedent desired that appellee have the money in the account. While the statement was made in the context of instructing decedent’s attorney as to what she desired in her will, we think it was also probative evidence of decedent’s intention when she created the account on August 31st, since decedent’s desire as to the disposition of the account was expressed only eight days afterward.

Taking into account the testimony of both witnesses, the critical question remaining is whether it has been clearly and convincingly established that decedent intended other than a survivorship arrangement when she created the joint account. While the statements related by Miss Dougherty are consistent with the intent to create a convenience account, .they do not conclusively establish decedent’s intent. The statement of decedent related by Attorney Johnston tends to indicate that decedent understood the survivorship arrangement and wished appellee to have the monies in the account. In weighing the statements together, we agree with Orphans’ Court that appellants have not clearly and convincingly shown that decedent did not intend to create a survivorship arrangement with appellee.

It being clear that the record supports the findings of Orphans’ Court, we affirm as to the August 31st transaction.

October 9th Transaction

Concerning the October 9th transaction, appellants argue that Orphans’ Court committed several legal errors.

Orphans’ Court relied upon the testimony of Mrs. Dorothea Johnson. Mrs. Johnson became acquainted with the decedent when both women were situated across from each other as patients in the same hospital ward. Mrs. Johnson testified that on October 9th appellee, appellee’s daughter, Mildred Burcha, a magistrate (Francis Flynn) and a young girl, Renita Fennick, were present with decedent. She testified that she was asked to be a witness to the signing of an uncompleted signature card. She related further that the magistrate told the decedent that the signature card was “to sign the money [in the bank] to [her] sister, Mary, who [she] wanted to give the money to,” and that decedent responded by shaking her head in the affirmative. Mrs. Johnson then said that the magistrate told decedent that “if she couldn’t sign her name that she could put an ‘X’,” and he steadied decedent’s hand while decedent made an “X” on the signature card. Mrs. Johnson was firm in her recollection that decedent made the “X” on the signature card.

Appellants argue on appeal that this evidence was insufficient as a matter of law to establish valid execution of the signature card because (1) the card was blank when executed, (2) decedent executed the card by mark when, according to appellants, she was able to sign her name, and (3) the procedure used when the mark was affixed did not comport with the signature by mark requirements of the Wills Act, 20 Pa.C.S.A. § 2502(2), which appellants would apply by analogy.

Regarding the sufficiency of the execution, we think the proper inquiry is whether decedent actually executed the signature card by mark and did so under circumstances that permit the conclusion that decedent’s mark signified her intention to create the survivorship account. Our review of Mrs. Johnson’s testimony satisfies us that decedent understood that the legal effect of executing the card was a transference of ownership of the money in the bank to appellee, although she may not have been aware of the particulars of how that transfer was to be effected. We can therefore conclude from her execution of the card that she manifested her assent to the creation of the survivor-ship account.

Our conclusion that decedent assented to the creation of the survivorship account is unaffected by appellants’ legal arguments.

Appellants argue that the execution of an uncompleted signature card by decedent does not evidence her assent to the creation of a survivorship arrangement. However, the effect of executing the card was orally explained to decedent. Decedent’s consent to the creation of a survivorship arrangement may be inferred from her execution of the signature card after hearing the explanation of its effect. Moreover, the fact that the signature card was completed subsequent to the affixing of decedent’s mark is of no consequence since the card was properly completed so as to accomplish the obvious intention decedent manifested when she executed the signature card. We reject appellants’ argument.

Similarly, we must reject appellants two remaining arguments. First, appellants argue that the decedent was able to sign her name; thus, her “inability/refusal to do so” during the October 9th transaction somehow invalidates the transaction. We cannot agree. Decedent was at liberty to adopt anything as her signature, so long as it is clear that she intended it to be her signature. See Tomilio v. Pisco, 123 Pa.Super. 423, 187 A. 86 (1936); Commonwealth v. Wix, 10 Chester 497 (C.P. Chester County 1962); see also Transportation Bureau of Traffic Safety v. Ballard, 17 Pa.Commw. 310, 331 A.2d 578 (1975); and here it is readily apparent from Mrs. Johnson’s testimony that decedent knowingly and deliberately chose to employ a mark as her signature. The use of the mark does not alone provide cause to believe that decedent did not assent to the creation of the survivorship arrangement. As to appellants’ last argument, the request that we apply the signature by mark requirements of Section 2502(2) to the instant case, we think it would be unwise for us to apply such talismanic formalities by analogy when it is reasonably apparent from the evidence that decedent did indeed execute the bank signature card and under circumstances which show assent to the transaction.

The final contention of appellants is that Orphans’ Court erred in refusing the rebuttal testimony of appellant, Henrietta Thier. This issue concerns the following offer of proof:

Your Honor, the witness’s name is Henrietta Thier, T-h-i-e-r. Mrs. Thier, for the record, Your Honor, is and would be, were the Petitioners to prevail, an intestate heir of Bridget Dembiec. However, the purpose for calling Mrs. Thier to the stand would be to produce evidence to the effect that, I believe in the evening hours of October 7, 1979, Mrs. Thier, along with other members of her family, went to the hospital to see Bridget Dembiec. When they arrived at the hospital, Mrs. Thier had a conversation with Dorothea Johnson who is the last witness produced by the respondent. Mrs. Thier, if allowed to testify, would testify to the following: That during that conversation with Dorothea Johnson, Dorothea Johnson expressed her knowledge as to the intended disposition of Bridget Dembiec’s estate. Specifically, Dorothea Johnson stated to Mrs. Thier that she, Mrs. Thier, and the other members of her immediate family should not worry since Bridget Dembiec had provided amply for all of them in her will. The purpose of introducing such testimony would be for impeachment purposes only of Dorothea Johnson. As I understand Mrs. Johnson’s testimony during the respondent’s case, she testified that she had no knowledge of the intended disposition of Bridget Dembiec’s estate by Bridget Dembiec in the provisions of her Will and that Bridget Dembiec had intended in other conversations to her to give almost her entire estate to Mary Boczar.

Reproduced Record at 196a-197a. Orphans’ Court excluded the testimony pursuant to an objection grounded on the Deadman’s Statute. Appellants, on the other hand, argue that Mrs. Thier’s testimony was proper under 42 Pa.C.S.A. § 5933(a), an exception to the incompetency mandated by the Deadman’s Statute.

Section 5933(a) permits a surviving party to be competent to testify to relevant matters occurring before the death of another if the subject matter of the proposed evidence is something that occurred between the surviving party and another living and competent witness who has testified against the surviving party at trial. See Volkwein v. Volkwein, 146 Pa.Super. 265, 22 A.2d 81 (1941). Our case law has limited the competency bestowed by Section 5933(a) to matters to which the competent witness has testified. In re: Bowman’s Estate, 301 Pa. 337, 152 A. 38 (1930); In re: Roth’s Estate, 150 Pa. 261, 24 A. 685 (1892); Volkwein v. Volkwein, supra. As to such matters, the surviving party is competent to testify in rebuttal and contradict the testimony of the competent witness.

The competency of the surviving party is to be determined by the conditions at the time the surviving party is called to testify, In re: Roth’s Estate, supra, and when the surviving party relies upon a statutory exception to establish his competency to testify, it is incumbent upon him to bring himself clearly within its provisions. Burke v. Burke, 240 Pa. 379, 87 A. 960 (1913). To establish competency, the surviving party may elicit appropriate responses from the competent witness on cross-examination. See Proper v. Campbell, 15 Pa.Super. 153 (1900).

Our examination of the record at the time Mrs. Thier’s testimony was offered convinces us that it was not competent. For appellants’ offer to have been competent, it must clearly appear that Mrs. Thier’s testimony meets the threshold requirement of Section 5933(a) that the proposed evidence related to a conversation that occurred between Mrs. Thier (surviving party) and Mrs. Johnson (competent witness). There was no such direct testimony from Mrs. Johnson. While she indicated on cross-examination that she made no statements to the heirs concerning decedent’s will, this testimony is insufficient to show that a conversation had occurred between the heirs and Mrs. Johnson, or, assuming arguendo that it did, that Mrs. Thier was present. The only other bases upon which appellants may rely to satisfy the threshold requirement of Section 5933(a) are counsel’s assertions in stating his offer of proof and Mrs. Thier’s testimony itself. Neither is sufficient. Counsel’s assertions in his offer of proof are not evidence. Mrs. Thier may not testify prior to appellants having established the conditions for her competency. See In re Roth’s Estate, supra. Without testimony from Mrs. Johnson, it was incumbent upon appellants to establish the conditions for Mrs. Thier’s competency by other competent evidence. Absent proof that Mrs. Thier conversed with Mrs. Johnson, appellants’ offer of proof was not competent under Section 5933(a).

Finding that Orphans’ Court did not commit any errors of law, we affirm its findings pertaining to the October 9th transaction.

Decree affirmed.

POPOVICH, J., concurs in the result.

      . Originally, this action began when Henrietta Thier petitioned Orphans’ Court to have any withdrawal from the disputed accounts preliminarily enjoined. By order dated October 15, 1979, the court enjoined Mary L. Boczar from withdrawing any of the funds in the disputed accounts and scheduled a hearing on a citation to Mary L. Boczar to show cause why the funds should not be turned over to the Estate of Bridget Dembiec. Subsequently, all the other intestate heirs of Bridget Dembiec, except Mary L. Boczar, joined the petition of Henrietta Thier and are appellants in this appeal.

      . See In re: Estate of Cilvik, 439 Pa. 522, 267 A.2d 836 (1970).

      . Appellants make the same argument as to the testimony of Mrs. Dorothea Johnson. However, Orphans’ Court did not rely upon her testimony in ruling on the August 31st transaction. We need not consider appellants' argument, since Orphans’ Court relied upon her testimony as to the circumstances of the October 9th transaction.

      . We draw this conclusion because of a later portion of Attorney Johnston’s deposition, where it appears that decedent said in a reference to this instruction that the account was held in the name of appellee. (Deposition at 6) We note further that the record indicates that decedent apparently had only two accounts and appellee’s name was only on the account that was converted on August 31st. We therefore deduce that decedent referred to the August 31st account.

      . Appellant also argues that this statement was inadmissible as it was part of a nuncupative will. We find this argument unavailing, since we are not concerned here with whether decedent’s oral intentions may be given effect as a testimentary transfer. We do not believe that the fact that the statement may not be probated as a will, bars its admissibility as probative evidence of an inter vivos transaction.

      . Conflicting evidence was presented at trial from Renita Fennick. Since Orphans’ Court resolved the question of credibility in favor of Mrs. Johnson’s testimony, we are bound by its determination. See Wagner v. Wagner, 466 Pa. 532, 353 A.2d 819 (1976); Hankin v. Goodman, 432 Pa. 98, 246 A.2d 658 (1968). We summarize only Mrs. Johnson’s testimony.

      . Section 2502(2) provides:
      (2) Signature by mark. If the testator is unable to sign his name for any reason, a will to which he makes his mark and to which his name is subscribed in his presence before or after he makes his mark, shall be as valid as though he had signed his name thereto: Provided, That he makes his mark in the presence of two witnesses who sign their names to the will in his presence.

      . Appellants’ reliance upon In re: Estate of Krutules, 120 P.L.J. 313 (C.P. Allegheny County 1972) is misplaced. In that case, the court found that the decedent had executed a blank signature card and the evidence established that decedent was unaware that the effect of the card was to create a survivorship account.

      . Even if we were to apply by analogy the strict signature by mark requirements of the Wills Act, as appellants advocate, decedent could have chosen to sign her name by mark instead of by signature, although decedent was able to write her name. See Milleman Will 415 Pa. 261, 203 A.2d 202 (1964) affirming per curiam by adopting the lower court opinion found at 33 Pa. D & C2d 602, 603 (1963); In re: Rosato's Estate, 322 Pa. 229, 185 A. 197 (1936).

      . 42 Pa.C.S.A. § 5930.

      . Section 5933(a) provides:
      (a) General rule. In any civil action or proceeding before any tribunal of this Commonwealth, or conducted by virtue of its order or direction, although a party to the thing or contract in action may be dead ..., and his right thereto or therein may have passed, either by his own act or by the act of the law, to a party on record who represents his interest in the subject in controversy, nevertheless any surviving or remaining party to such thing or contract ..., shall be a competent witness to any relevant matter, although it may have occurred before the death of said party ... if and only if such relevant matter occurred between himself and another person who may be living at the time of the trial and may be competent to testify, and who does so testify upon the trial against such surviving or remaining party ...


author: SPAETH, Judge:

text:
    468 A.2d 1115
    COMMONWEALTH of Pennsylvania v. Aaron MINES, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 21, 1980.
    Filed Dec. 9, 1983.

      Thomas Hurd, Assistant Public Defender, Philadelphia, for appellant.
    Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, BROSKY and VAN der VOORT, JJ.
   SPAETH, Judge:

This case comes to us on remand from the Supreme Court. We had ordered the defendant discharged for a violation of Rule 1100. 282 Pa.Super. 157, 422 A.2d 876. The Supreme Court, finding no Rule 1100 violation, reversed and remanded the case to this court to decide the remaining issue not previously decided. Commonwealth v. Mines, 502 Pa. 41, 463 A.2d 999 (1983). This issue is whether the trial court improperly restricted the cross-examination of a Commonwealth witness. We hold that the court did not, and therefore affirm.

Appellant was convicted of robbery and conspiracy arising out of an armed robbery. A principal Commonwealth witness, Keith Summers, was a juvenile. Summers testified that on the evening of September 26, 1977, as he was leaving a grocery store, he was robbed by two men of a few dollars and his wristwatch. He identified appellant as one of the two men. Several people outside the store, playing a game of craps, also were robbed. Richard Pugh, Summer’s cousin, testified that he witnessed the robbery of the people outside the store, but he could not identify appellant. Appellant argues that the trial court should have allowed him to impeach Summer’s credibility by introducing his juvenile record.

Generally, a juvenile record may not be used for impeachment purposes. 42 Pa.C.S.A. § 6354(b) provides:

(b) Effect in subsequent judicial matters. — The disposition of a child under this chapter may not be used against him in any proceeding in any court other than at a subsequent juvenile hearing, whether before or after reaching majority, except:
(1) in dispositional proceedings after conviction of a felony for the purposes of a presentence investigation and report; or
(2) if relevant, where he has put his reputation or character in issue in a civil matter.

See also, Commonwealth v. Katchmer, 453 Pa. 461, 309 A.2d 591 (1973). However, in Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), the Supreme Court held that the state’s interest in protecting the confidentiality of a juvenile’s record must yield to the defendant’s constitutional right to cross-examine an adverse witness. The defendant in Davis was convicted of burglarizing a tavern and removing a safe containing over a thousand dollars in cash and checks. The safe was discovered near the home of a prosecution witness. The witness, a juvenile, testified that he had seen the defendant near the scene where the safe was discovered just hours before the discovery. Defense counsel sought to cross-examine the witness regarding his juvenile adjudications for burglary. The defense theorized that the witness feared that he would himself be suspected of the burglary of the tavern and that he may “have made a hasty and faulty identification of [the defendant] to shift suspicion away from himself [and also] might have been subject to undue pressure from the police and made his identification under fear of possible probation revocation.” Id. at 311, 94 S.Ct. at 1108. The Court held that such cross-examination should have been permitted, explaining: “The claim of bias which the defense sought to develop was admissible to afford a basis for an inference of undue pressure because of [the witness’s] vulnerable status as a probationer, ... as well as of [the witness’s] possible concern that he might be a suspect in the investigation.” Id. at 318, 94 S.Ct. 1111 (citation and footnote omitted). It also appeared that when defense counsel asked the witness whether he had ever previously been interrogated by the police, the witness answered that he had not been. The Court stated:

Since it is probable that [the witness] underwent some questioning by police when he was arrested for the burglaries on which his juvenile adjudication of delinquency rested, the answer can be regarded as highly suspect at the very least. The witness was in effect asserting, under protection of the trial court’s ruling, a right to give a questionably truthful answer to a cross-examiner pursuing a relevant line of inquiry; it is doubtful whether the bold “No” answer would have been given by [the witness] absent a belief that he was shielded from traditional cross-examination. It would be difficult to conceive of a situation more clearly illustrating the need for cross-examination.
Id. at 314, 94 S.Ct. at 1109.

We have concluded that this case is not controlled by Davis. Here, defense counsel

wished to show that Summers may have lost his watch and money in the crap game and was fabricating the robbery to conceal this fact from his parents. Defense counsel further represented that Summers may have feared that his parents, who had filed incorrigibility petitions against him in the past, would report his gambling activities to his probation officer, and that his probation would be revoked.
Brief for appellant at 16; and see N.T. at 165-167.

But nothing in the record supports this theory. There is no evidence that Summers was playing in the crap game. In fact, there was testimony that he was not. Summers himself testified that he was not playing in the game but was leaving the grocery store after having purchased a loaf of bread, N.T. 115-116, and Pugh also testified that Summers was not playing in the game but was leaving the store when the robbery occurred, N.T. 177, 185. There is no evidence that Summers feared that he might himself be suspected of the robbery. Nor does it appear that he was pressured into identifying appellant for fear that his probation would be revoked; to the contrary, he voluntarily reported the incident to the police.

As Justice Stewart in his concurring opinion in Davis states:

[T]he Court neither holds nor suggests that the Constitution confers a right in every case to impeach the general credibility of a witness through cross-examination about his past delinquency adjudications or criminal convictions.
Id. at 321, 94 S.Ct. at 1112.

See also, Commonwealth v. Slaughter, 482 Pa. 538, 394 A.2d 453 (1978) (facts must bring case within rationale of Davis to permit use of juvenile record for impeachment). We agree with the Second Circuit’s interpretation of Davis, which the trial court relied on:

We do not believe that the Court in Davis meant to sanction speculative expeditions into areas only tangentially related to the facts in issue in the hope that some basis for implying an ulterior motive might be found. United States v. Ong, 541 F.2d 331, 342 (2d Cir.1976).

In our opinion, appellant’s theory was too speculative. We therefore conclude that the trial court properly refused to permit the use of the witness’s juvenile record to show bias.

Judgment of sentence affirmed.