author: CIRILLO, Judge. POPOVICH, Judge,

text:
    617 A.2d 26
    Daniel R. delCASTILLO, Appellant, v. Juan J. delCASTILLO.
    Superior Court of Pennsylvania.
    Argued July 15, 1992.
    Filed Dec. 2, 1992.

      Louise O. Knight, Lewisburg, for appellant.
    William R. Swinehart, Sunbury, for appellee.
    Before CIRILLO, TAMILIA and POPOVICH, JJ.
   CIRILLO, Judge.

This is an appeal from a final decree entered in the Court of Common Pleas of Northumberland County. We affirm.

Daniel R. delCastillo (son) initiated an action in equity against Juan J. delCastillo (father), seeking specific performance of paragraph 4.05 of a separation, custody, support and property settlement entered into between father and his former wife, Joyce B. delCastillo, son’s mother. Paragraph 4.05 reads as follows:

The parties recognize an obligation on both of their parts to provide education for their children beyond the high school level. Accordingly, to provide each child with the benefit of such education, husband shall pay seventy-five (75%) percent and wife shall pay twenty-five (25%) percent of the cost of such education to each child on behalf of each child. The cost of such education shall include all charges for tuition, dormitory or room and board and lodgings, books and supplies, registration and other fees, dues, assessments and charges as well as transportation expenses while the child is engaged in the educational process. Each party shall have the right to approve in advance the school or schools selected by the child, but such approval shall not be unreasonably withheld.

After trial, the court entered a decree nisi enforcing the settlement agreement. Father filed post-trial motions, resulting in a final decree dated September 13, 1991. Son and father then filed a joint motion for post-trial relief limited to the issue of the proper formula for calculating the son’s living expenses, resulting in the trial court’s amended final decree of October 2, 1991. Son filed this timely appeal. The issues before the court are:

1. Whether the property settlement agreement executed between the Plaintiffs parents (the Defendant and his former wife), which provided in pertinent part that the parents were to “provide education for the [Plaintiff] ... beyond the high school level” and to pay the costs of such education, obligated the Defendant to pay a specified share of the cost of the Plaintiffs graduate school expenses, in addition to his college education expenses?
2. Whether the Plaintiffs college education living expenses should have been calculated on the basis of the actual living expenses instead of on the basis of the average room and board charges at four Baltimore area colleges?
3. Whether the Plaintiff should have been awarded the counsel fees and costs for pursuing his action for specific performance?

Before reaching the merits of this appeal, we first note the procedural irregularities of this case. Generally, after a final decree is entered, this court will only accept direct appeals on issues not raised below if they are addressed for the first time in the trial court’s final decree. See Pa.R.A.P. 302 and 105(a); cf. Pa.R.C.P. 1920.55; Benson v. Benson, 357 Pa.Super. 166, 515 A.2d 917 (1986). Otherwise, there would never be an opportunity to address these issues on appeal.

Here, the court entered a decree nisi, father filed post-trial motions, and the court then issued a final decree. In this final decree the trial court explicitly excluded graduate studies as education covered by paragraph 4.05 of the separation agreement. After the trial court issued this final decree, the parties filed a joint post-trial motion regarding the determination of living expenses; the parties, however, did not raise the father’s responsibility to pay for graduate school expenses. The court addressed the joint post-trial motions and amended its decree. Although it is procedurally uncommon for the court to address post-trial motions after it has entered a final decree, we shall treat the joint post-trial motion as one to modify the final order, see 42 Pa.C.S. § 5505, and reach the merits of the issues based on the trial court’s decision in both “final” orders.

Once again this court is called upon to determine whether a child is entitled to educational support payments for post-high school studies. Son first claims that the property settlement agreement between his parents not only obligates them to pay their respective shares for his college education but also for postgraduate education as well. Paragraph 4.05 of the settlement agreement requires the parents to “provide education beyond the high school level.” Since the provision does not specifically mandate the extension of “beyond the high school level” to postgraduate studies, we must resolve whether this ambiguous phrase entitles son to contributions for his graduate studies.

“It is well established that in Pennsylvania, a settlement agreement between a husband and wife is governed by the law of contracts unless the agreement itself provide otherwise.” Brower v. Brower, 413 Pa.Super. 48, 56, 604 A.2d 726, 730 (1992). When interpreting a property settlement agreement, the trial court is the sole determiner of facts and absent an abuse of discretion, we will not usurp the trial court’s fact-finding function. Nitkiewicz v. Nitkiewicz, 369 Pa.Super. 504, 507, 535 A.2d 664, 665 (1988), allocatur denied, 520 Pa. 589, 551 A.2d 216 (1988). Further, we have held that a grant of relief under a petition for special relief based upon the interpretation of a marital settlement agreement “is within the sound discretion of the trial court and is an exercise of the court’s equitable powers, and will not be disturbed on appeal unless the trial court’s decision is an abuse of discretion.” Jawork v. Jawork, 378 Pa.Super. 89, 96, 548 A.2d 290, 293 (1988).

After hearing the testimony at trial, the trial court determined that the term “beyond high school level” denoted education through the bachelor’s degree level. This court has previously declined to require an extension of the parental obligation to support children in their educational pursuits to postgraduate and professional school. Griffin v. Griffin, 384 Pa.Super. 188, 195, 558 A.2d 75, 79 (1989); Brown v. Brown, 327 Pa.Super. 51, 474 A.2d 1168 (1984). In Brown, child support was denied to a twenty-two year old law student because the court decided that “college” referred only to undergraduate study leading to a bachelor’s degree. Id. at 55, 474 A.2d at 1170. The Broum court stated that “[c]ase law sets the limits of parental obligation [for educational support] at college or majority[.]” Id. at 56, 474 A.2d at 1170. Obviously, a contract specifically mandating a parent’s obligation to pay for graduate school studies will be enforced. But where, as here, a contract is ambiguous as to the parents’ intentions, we conclude that a twenty-seven year old married man with a child cannot expect the courts to enforce such a claim.

Were the court to extend the parents’ agreement in this case to graduate studies, the obligation to support son could conceivably continue ad infinitum. A trial court, sitting in equity, cannot allow this absurd and unreasonable result. See Topley v. Buck Ridge Farm Construction Co., 30 Pa.Commw. 360, 374 A.2d 976 (1977) (“It is not the province of equity to compel the performance of unreasonable things.”). We, therefore, find no abuse of discretion by the trial court, and limit the father’s “beyond high school” educational responsibilities to the son’s pursuit of a bachelor’s degree.

Next, son contends that the formula for determining the cost of room and board charges set forth by the trial court was inappropriate based on the wording of paragraph 4.05 of the marital settlement agreement. The trial court devised a formula for calculating the son’s living expenses based on the average of room and board fees at four Baltimore area colleges. Neither Towson State University nor the University of Baltimore, the schools which the son attended, had dormitory housing for their students, and neither offered a fixed cost for a student’s living expenses. The court created this formula to avoid future complications involving discrepancies in the son’s expenses and to create a reasonable limit as to the father’s obligation. Thus, the formula created was neither unreasonable nor an abuse of discretion by the trial court. Nitkiewicz, supra.

Finally, son argues that he should have been awarded counsel fees and costs because father’s conduct in resisting his contractual obligation, which forced son to bear the burden of a lawsuit, was dilatory, obdurate or vexatious within the meaning of 42 Pa.C.S.A. § 2503(6), (7) and (9). This court may award counsel fees if a party’s conduct during the pendency of the matter was “dilatory, obdurate, or vexatious.” Brenckle v. Arblaster, 320 Pa.Super. 87, 466 A.2d 1075 (1983). However, “it is well settled this court will not reverse the trial court on its decision to award counsel fees absent an abuse of discretion.” O’Connell v. O’Connell, 409 Pa.Super. 25, 37, 597 A.2d 643, 647 (1991).

Here, the trial court determined that the father’s defenses were valid. We agree. The father made three claims: that son did not fulfill a condition precedent relating to the father’s required approval of the son’s choice of schools; that the agreement had to be construed under the laws of Pennsylvania; and that estrangement relieved him of his obligation under the divorce settlement agreement. We find that these were not frivolous defenses. Father’s assertion of them, therefore, did not amount to vexatious, obdurate or dilatory-behavior. The action was not instituted with insufficient grounds and it was not intended to merely cause annoyance. Santoro v. City of Philadelphia, 59 Pa.Commw. 114, 122, 429 A.2d 113, 117 (1981). The trial court did not abuse its discretion in refusing to award son counsel fees and costs. O’Connell, supra.

We, therefore, affirm the trial court’s decree which explicitly excluded graduate school costs from paragraph 4.05 of the property settlement agreement.

Decree affirmed.

POPOVICH, J., files a dissenting opinion.

POPOVICH, Judge,

dissenting.

I must respectfully dissent from the majority’s conclusion that the lower court correctly interpreted the settlement agreement to require Dr. Juan J. delCastillo to pay for his son’s Bachelor’s Degree only. Based on Dr. delCastillo’s testimony, I am absolutely convinced that he is obligated to fund his son’s undergraduate and graduate studies.

When interpreting a settlement agreement, the trial court is the sole fact-finder and, absent an abuse of discretion, we will not usurp that function. Nitkiewicz v. Nitkiewicz, 369 Pa.Super. 504, 507, 535 A.2d 664, 665 (1988), appeal denied, 520 Pa. 589, 551 A.2d 216 (1988). Instantly, I am convinced that an abuse of discretion has occurred since the majority and the lower court have completely ignored the evidence of record in reaching their decisions.

The settlement agreement between Dr. delCastillo and his former wife specifically provides that the doctor shall pay 75% of the costs of his children’s education “beyond the high school level.” Settlement Agreement, ¶ 4.05. Arguably, an ambiguity does exist as to whéther the parties intended to provide for not only college expenses, but also those of graduate studies. Certainly, in this Commonwealth, there is no requirement that parents provide financially from their children’s graduate or professional school education. See Griffin v. Griffin, 384 Pa.Super. 188, 195, 558 A.2d 75, 79 (1989); Brown v. Brown, 327 Pa.Super. 51, 474 A.2d 1168 (1984). However, that does not prohibit parents from agreeing to provide for their children’s graduate or professional education.

Instantly, a review of the record clearly indicates that at the time he signed the settlement agreement, Dr. delCastillo intended to provide financial support for his children’s education at college and graduate or professional school. Dr. delCastillo is a medical physician who in 1990 earned a gross income of more than $140,000. Dr. delCastillo repeatedly testified that he always intended and advised his son to be a doctor, lawyer, accountant or any other professional. N.T., pp.77-78, 84-85. In fact, Dr. delCastillo specifically testified that at the time he entered into the settlement agreement, he intended it to provide for graduate education following college. N.T., 80. The record is clear that Dr. delCastillo’s desire to avoid his obligation is not based on the fact that he never agreed to fund his son’s graduate education, but rather is motivated by his plans to retire in two years. Dr. delCastillo is simply concerned about the adverse effect which the added financial obligation might have upon his retirement plans. N.T., p. 89.

The facts of this case clearly establish that at the time Dr. delCastillo entered in the agreement, he intended to fund his son’s bachelor’s and graduate or professional studies. I do not believe that Dr. delCastillo should be permitted to avoid his financial obligation simply because it is now inconvenient for him. In sum, I would find that the lower court erred when it determined that education “beyond high school” included college only.

      . Among other holdings in its order, the trial court determined that: 5. The Defendant, JUAN J. delCASTILLO, is not obligated to pay college education costs for his son, DANIEL R. delCASTILLO, beyond those incurred in pursuit of his Bachelor’s Degree.

      . The trial court found that the contract term requiring payment for higher education was clear and unambiguous. However, by clarifying that such payments would accrue solely for expenses incurred toward a bachelor's degree, the trial court implicitly found the term “beyond the high school level” to be unclear and ambiguous.


source: Caselaw Access Project

author: BECK, Judge.

license: Public Domain

text:
    617 A.2d 31
    Beth BLEW, Appellant, v. Bennett VERTA.
    Superior Court of Pennsylvania.
    Argued Aug. 25, 1992.
    Filed Dec. 3, 1992.

      Anne P. Felker, Bethlehem, for appellant.
    Richard J. Shiroff, Easton, for appellee.
    Before BECK, JOHNSON and HOFFMAN, JJ.
   BECK, Judge.

This case involves the discretion of the trial court to restrict the partial custody arrangement of a lesbian mother to visit with her 8-year old son Nicholas. The trial court’s order restricted the mother’s custody, prohibiting her from visiting her son in the presence of her female partner. Mother filed this timely appeal. We find that the trial court abused its discretion in entering the order appealed from, and we reverse.

In 1983, during the parties’ marriage, Nicholas was born. The parties were divorced in 1987. Upon agreement in 1990, the court entered a custody order awarding shared custody of Nicholas to mother and father. The order provided that Nicholas be placed in the primary physical custody of father. Mother was given partial custody every other weekend during the school year and the majority of Nicholas’ summer vacation. Father also had Nicholas for four weeks during the summer.

The parties operated under this order for several months. On mother’s weekends she picked up Nicholas at father’s home and drove him to the home she shares with Sandy E., a trip that takes three hours. At the end of the weekend father picked up Nicholas at his mother’s house and returned to his own.

In April, 1991, shortly after Nicholas had arrived at mother’s home for weekend visitation, she noticed that Nicholas had bruises on his body. Nicholas first told her that he had fallen, then later told her that his stepmother had hit him. When father and his wife picked up Nicholas at the end of the visitation, mother confronted father with her observation, and he admitted that Nicholas had been spanked prior to leaving father’s home.

Mother filed a petition for special relief with the court, alleging abuse of Nicholas by his father and stepmother. A hearing was held at which mother, father, and Nicholas testified. Nicholas testified that his stepmother “hit [him] with a belt” on his backside for making a rude gesture to his school bus driver, and that she had used a belt on him on prior occasiofis. R.R. 343A. Father testified that he and his wife believed in using spanking as a form of discipline. R.R. 331A. Finding that the evidence presented did not warrant granting emergency relief, the court denied mother’s petition. However, the court suggested to mother that if she wanted, she should file a petition to modify custody. She did, alleging physical abuse and psychological mistreatment of Nicholas.

Father countered with a petition for special relief and for modification of the custody order, alleging that mother’s lesbian relationship was detrimental to Nicholas. At the hearing, mother testified, as did her parents, her partner, Sandy E. and a neighbor. In addition, father and his wife testified. Father’s expert was Dr. Harold Pascal, a psychiatrist who had examined Nicholas. Mother’s expert was Delores Kristofits, a psychologist who had examined Nicholas and mother’s partner, Sandy E., and who supervised the examination of mother by another psychologist in her office. The evidence adduced at trial related to Nicholas’ relationship with his parents and their respective partners, his interaction with his father’s and stepmother’s twins, and his grandparents. Testimony was also admitted about Nicholas’ activities at both his mother’s and father’s houses. The judge also interviewed Nicholas in chambers.

The court modified the prior custody order. The new order changed the existing custody arrangement in three ways. First, the court provided that mother was required to exercise her weekend custody of Nicholas at the home of mother’s parents, rather than in her own home. Second, the court prohibited any contact between Nicholas and mother’s partner, Sandy E., during any part of mother’s custody period. Third, mother’s extensive period of summer custody was reduced to two weeks, and made subject to the terms and conditions of mother’s regular custody, i.e., to be exercised in her parents’ home and without Sandy E.

Mother first claims that the trial court committed an abuse of discretion in concluding that Nicholas has been harmed by exposure to her lesbian relationship. We agree with mother.

Our scope of review is settled:

The scope of review of an appellate court reviewing a child custody order is of the broadest type; the appellate court is not bound by the deductions or inferences made by the trial court from its findings of fact, nor must the reviewing court accept a finding that has no competent evidence to support it. Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800 (1984); Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977) (plurality). However, this broad scope of review does not vest in the reviewing court the duty or the privilege of making its own independent determination. Lombardo v. Lombardo, 515 Pa. 139, 527 A.2d 525, 529 (1987). Thus, an appellate court is empowered to determine whether the trial court’s incontrovertible factual findings support its factual conclusions, but it may not interfere with those conclusions unless they are unreasonable in view of the trial court’s factual findings; and thus, represent a gross abuse of discretion.

McMillen v. McMillen, 529 Pa. 198, 602 A.2d 845, 847 (1992).

In carefully reviewing the entire record, we find that the trial court’s conclusion that Nicholas has been harmed by his mother’s lesbian relationship is not supported by its own findings of fact and therefore represents a gross abuse of discretion.

—Trial Court’s Findings—

We summarize the relevant testimony from the hearing which was held over a two-day period.

Nicholas’ father testified that he and his wife first became concerned about Nicholas following three incidents occurring in March, 1991. One incident involved Nicholas’ plunging lead weights into the throats of the six-month old twins [Nicholas’ half-siblings] in his father’s house. The second was Nicholas’ smashing the boy twin in the face. The third involved Nicholas’ violently pulling the leg of one of the twins. Trial Ct. Op., p. 5. Father claimed that when he questioned Nicholas about his behavior, Nicholas told him that his mother, Sandy E., and his maternal grandmother had told him to hurt the babies. Father further stated that Nicholas told him that these people [mother, Sandy E., and the maternal grandmother] always watched him when he went to the bathroom. Ibid.

Father took Nicholas to Dr. Harold Pascal. Dr. Pascal testified at the hearing that Nicholas repeated to him the accusations against his mother, grandmother, and Sandy E. that he had communicated to his father. Additionally, Dr. Pascal testified that Nicholas told him that he was embarrassed when his mother and Sandy kiss and hold hands in public, and when people laugh and make fun of them. Nicholas also told Dr. Pascal that his mother and Sandy played a game one time where they sandwiched him between them and wiggled, which embarrassed him. Trial Ct.Op., p. 3.

Dr. Pascal stated that he believed the allegations against mother. Dr. Pascal stated his opinion that these actions had caused Nicholas to become confused, angry, embarrassed and disjointed in his thought patterns. Based on these allegations, Dr. Pascal was of the opinion that mother should be permitted only supervised custody of Nicholas. Ibid.

In contrast, Ms. Kristofits, the psychologist who had examined Nicholas, did not believe that any of the misbehavior attributed to mother and her partner had in fact occurred. She stated her view that Nicholas’ acting-out was related to the conflict in his family and issues surrounding the divorce, rather than to his mother’s lesbianism. The trial court stated:

Dolores Kristofits pointed out that Nicholas never told her about any events which took place in his mother’s home or while he was with her which upset him. He told her that it was not true that his mom and Sandy make him do bad things. She found him to be a very angry boy but not out of hand. She attributed Nicholas’ anger to several factors which included his exposure to arguments between mother and father, unfair comments concerning his mother made by his father and by children on the school bus. She also attributed some of his anger to traveling the long distance to his mother’s home and back again. She opined that the mother’s lesbian relationship was not the cause of Nicholas’ anger and confusion. She found that the mother and Sandy had good parenting skills and no major personality problems.

Trial Ct.Op., p. 4. Ms. Kristofits stated that she did not agree that mother’s custody should be cut back or restricted; she urged, if anything, that mother’s custody be expanded. R.R. 136A.

Mother and Sandy E. both testified, denying the allegations against them. Mother denied that she and Sandy E. demonstrate affection for each other in public, but stated that they do kiss and hold hands in the privacy of their home. Trial Ct.Op., p. 6.

The trial judge interviewed Nicholas in chambers and found him to be very intelligent and articulate. Nicholas told the judge that he wants to spend time with both parents. He said he likes Sandy and enjoys being at her home. He said that people laugh and point at mother and Sandy when he is out in public with them, that he tries to ignore this but does not understand it. He also stated that he does not like the long car ride to his mother’s house. Trial Ct.Op., pp. 4-5.

At the conclusion of the two days of hearing, the trial judge stated that he did not believe any of the allegations against mother and Sandy E. that formed the basis of the father’s petition for modification. As to the issue of whether mother’s homosexuality was harmful to Nicholas, the court stated that,

Essentially, what this case comes down to and what I have to think about very carefully is whether the mother’s lifestyle is a factor that may impact adversely on him. There is no credible evidence, that I’ve heard in these proceedings, that persuades me that it is having an adverse effect on him.

N.T., p. 290-91 (emphasis added).

In its opinion, the trial court repeated its belief that neither mother nor Sandy E. had done anything inappropriate toward Nicholas, and that the boy was telling lies about them to his father and stepmother out of a sense of confusion and torn loyalties:

Nicholas, in our view, lied to us, Dr. Pascal and his parents about many things. We believe his lying reflects his confusion. ... When he is with his father and stepmother he tells them things about Beth which he thinks they want to hear. He is clever enough to put a ‘spin’ on the story to make it appear she is abusing him and thereby ingratiate himself to his father and stepmother. When he is with his mother he tells her exaggerated stories about his father, e.g., the physical abuse, for the same reason.
We found improbable and contrived [Nicholas’] stories about his mother, Sandy and the grandmother watching him in the bathroom and telling him to harm the twins.... We believe the testimony of the Mother, Sandy and Mrs. B. that they never said what Nicholas attributed to them and these things did not happen in the way Nicholas said.

Trial Ct.Op., pp. 9-10. The court also found no credible expert testimony supporting a finding that mother’s homosexuality was harmful to Nicholas:

Because Dr. Pascal’s opinion as to the cause of Nicholas’ confused and disruptive conduct was based primarily on Nicholas’ false accusations about his mother, we do not give it any weight.
Nicholas’ evaluation by Dolores’ Kristofits, the psychologist, on the other hand, was based on statements and a history from Nicholas which comports with what the Court believes are the true facts. Apparently this witness gained Nicholas’ confidence and he told her the truth and his true feelings.

Trial Court Op., pp. 9-10 (emphasis added).

However, despite crediting Ms. Kristofits, the court decided not to accept her recommendation that mother’s custody not be restricted, but be expanded. The court stated that this recommendation did not give proper weight to Kristofits’ other findings “that Nicholas is angry about how people talk about his mother and Sandy E.,” and that Nicholas dislikes the three-hour ride to his mother’s house in Centre County. Trial Ct.Op., p. 10.

—Trial Court’s Order—

Based on this record, we find that the trial court abused its discretion in concluding that Nicholas has been harmed by his mother’s lesbian relationship. There is simply no evidence in the record of a causal link between the mother’s homosexuality and Nicholas’ acting-out behavior. Of the expert testimony presented, the court specifically found to be credible the testimony of Ms. Kristofits, who stated that the mother’s lesbian relationship was not the cause of Nicholas’ disturbed behavior and recommended that mother’s custody be expanded. Trial Ct.Op., p. 4. The court specifically rejected the opposing opinion of Dr. Pascal as being based on falsehoods told by a child put in the middle of the conflict between his parents. Ibid.

The trial court advances two reasons for restricting mother’s partial custody to visits at her parents’ home not in the presence of Sandy E. The trial court stated that Nicholas is angry that people make fun of his mother and her partner, and that he dislikes the three-hour ride between his parents’ homes. Neither reason supports the type of restriction imposed by the court. As to the car ride, we note that both parents are established in the communities in which they live and are not likely to move. In the context of the general efforts children and parents must exert to remain in contact with each other after a divorce, we do not find the car ride described here, undertaken every other weekend, to be excessive.

Of greater concern is the trial court’s rationale relating to the mother’s lesbianism. The trial judge is appropriately sensitive to the fact that Nicholas is embarrassed, confused and angry over other people’s reactions to his mother and Sandy E.’s relationship. However, the merits of a custody arrangement ought not to depend upon other people’s reactions. Would a court restrict a handicapped parent’s custody because other people made remarks about the handicapped parent which embarrassed, confused and angered the child? We think not. The trial court’s conclusion is based on an overly broad reading of Constant A. v. Paul C.A., 344 Pa.Super. 49, 496 A.2d 1 (1985). Constant A. holds that where a parent’s homosexual relationship (or, in fact, any non-marital relationship) causes harm to a child in the parent’s custody, the relationship may be the basis for restricting or limiting the custody of that parent. Accord, Barron v. Barron, 406 Pa.Super. 401, 594 A.2d 682 (1991); Pascarella v. Pascarella, 355 Pa.Super. 5, 512 A.2d 715 (1986). In the instant case, however, the trial court based a finding of detriment not on the mother’s homosexual relationship itself but rather on other individuals reaction to the mother’s relationship.

We find, a close analogy in In re Custody of Temos, 304 Pa.Super. 82, 450 A.2d 111 (1982), which involved an interracial home. This court held that custody should not be restricted because a child may be exposed to the hostile reactions of others. We reversed the trial court’s denial of custody to a parent living in an inter-racial relationship. We reiterate today what we said there:

A court may not assume that because children will encounter prejudice in one parent’s custody, their best interests will be served by giving them to the other parent. If the children are taunted and hurt because they live with a black man, with love and help they may surmount their hurt and grow up strong and decent — the sort of children any parent would be proud of.... [A] court must never yield to prejudice because it cannot prevent prejudice. Let the court know that prejudice will condemn its award, [still] it must not trim its sails.

304 Pa.Super. 82, 100, 450 A.2d 111, 120 (emphasis in original). The trial court described Nicholas’ anger and confusion when he perceives outsiders ridiculing his mother and Sandy E. The solution, however, is not to penalize Nicholas further by restricting his ¡contact with his mother and prohibiting him from spending time with her and Sandy E. in her own home. The standard “best interest of the child” requires us to consider the full panoply of a child’s physical, emotional, and spiritual well-being. Barron v. Barron, supra. Of primary importance to the child’s well-being is the child’s full and realistic knowledge of his parents, except where it can be shown that exposure to the parent is harmful to the child:

Courts ought not to impose restrictions which unnecessarily shield children from the true nature of their parents unless it can be shown that some detrimental impact will flow from the specific behavior of the parent. The process of children’s maturation requires that they view and evaluate their parents in the bright light of reality. Children who learn their parents’ weaknesses and strengths may be able better to shape lifelong relationships with them---- [I]t is preferable for parent-child relationships to be defined by and developed according to the personalities and character of the child and parents, unhampered, to the extent possible, by restrictions imposed by the court.

Fatemi v. Fatemi, 339 Pa.Super. 590, 489 A.2d 798, 801-802 (1985).

In Nicholas’ case, one of life’s realities is that one of his parents is homosexual. In the absence of evidence that the homosexuality in some way harms the boy, limiting Nicholas’ relationship with that parent fails to permit him to confront his life situation, however unconventional it may be:

Although courts have gone to great lengths to provide every child with precisely one mother and one father, the realities of family formation and parenting are considerably more complex. Lesbian-mother families are but one alternative to the presumed form. In resolving disputes about the custody of children, the court system should recognize the reality of children’s lives, however unusual or complex. Courts should design rules to serve children’s best interest. By failing to do so, they perpetuate the fiction of family homogeneity at the expense of the children whose reality does not fit this form.

Polikoff, This Child Does Have Two Mothers: Redefining Parenthood to Meet the Needs of Children in Lesbian-Mother and Other Nontraditional Families, 78 Georgetown Law Journal 461 (1990), at 469. Nicholas’ best interest is served by exposing him to reality and not fostering in him shame or abhorrence for his mother’s nontraditional commitment.

Based on the trial court’s statement that no adverse effect to Nicholas had been shown by the mother’s lesbian relationship, and its crediting of the expert who strongly supported the quality of mother’s parenting, the trial court’s restriction on the mother’s partial custody is unsupportable. The trial court therefore abused its discretion in restricting the mother’s visitation.

In this case, the facts found by the court establish that the presence of mother, in the company of her partner Sandy E., is a positive factor in Nicholas’ life. The mother and Sandy E. have lived together in a stable relationship for over six years. Psychologist Kristofits, whose opinions the trial court credited, testified that both mother and Sandy have good parenting skills. Trial Ct.Op., p. 4. When Nicholas visits, mother and Sandy E. join with him in such activities as going to the movies, attending church, playing miniature golf, taking classes at the local YMCA and entertaining friends. R.R. 196A, 229A, 230A.

Nicholas appeárs to be comfortable with and genuinely fond of Sandy E. He has known her as his mother’s partner since before he was two years old. Nicholas told the trial court that he “likes Sandy and enjoys being at her home sometimes.” Trial Ct.Op., p. 4. When asked by psychologist Kristofits if he was angry that his mother was with a female, Nicholas said “No; I like Sandy.” R.R. 130A. When Kristofits asked Nicholas if he would prefer his mother to be with a man, he said “No; it doesn’t matter. I like Sandy and I wouldn’t want to see her sad.” R.R. 130A. The trial court itself concluded there was “no question that the mother and [her partner] both care for the boy, have good parenting skills and have his best interest at heart.” Ibid

Mother raises a number of other issues on appeal, including the claim that the trial court’s order impermissibly infringes on her constitutional rights to free speech and association. Because we have reversed the order of the trial court, we need not consider the additional grounds for reversal urged by mother. We have also reviewed mother’s claim that the trial court erred in failing to grant her petition for primary physical custody of Nicholas. We find no error in the trial court’s disposition.

On the basis of this record, there is no support for the trial court’s order restricting mother’s partial custody. We therefore vacate the order of the trial court and reinstate the November 13, 1990 custody order.

      . In a custody case, the trial court is directed to set forth as clearly as possible its findings of fact, the evidence of record that supports them, the conclusions it draws therefrom, and its reasoning as to how those conclusions support the order ultimately entered. Commonwealth ex rel. Mary Ann S. v. Daniel S., 278 Pa.Super. 577, 420 A.2d 692 (1980). Although the court’s opinion here falls short of this standard, it is sufficiently comprehensive to permit us to exercise review of its conclusion that mother’s custody should be restricted.

      . We note that a variety of psychological studies indicate that lesbianism does not correlate negatively with the ability to raise a healthy, normal child. J. Kleber, R. Howell, A.L. Tibbits-Kleber, The Impact of Parental Homosexuality in Child Custody Cases: A Review of the Literature, Bull. Am. Acad. Psychiatry Law, Vol. 14, No. 1 (1986) (concluding that "[rjesearch regarding lesbian motherhood has consistently failed to provide any evidence for necessarily inferior parenting styles. Children of lesbian mothers have not demonstrated aberrant gender identity development, increased preference for homosexual object choice, nor enhanced social/emotional maladjustment, when compared with children raised by single heterosexual mothers ... The evident and clearly expressed priority of mental health professionals knowledgeable of the research findings in this area is to identify objectively all aspects of the divorce and custody situation and to evaluate these factors, inclusive of parental sexual orientation, in terms of factual certainty as opposed to presumptive subjective bias.”); R. Green, J.B. Mandel, M. Hotvedt, J. Grey, L. Smith, Lesbian Mothers and Their Children: A Comparison with Solo Parent Heterosexual Mothers and Their Children, 15 Archives of Sexual Behavior 167 (1986) ("The postulated compromised parental fitness of lesbian mothers, commonly asserted in child custody cases, is not supported by these data.”); M. Kirkpatrick, C. Smith, R. Roy, Lesbian Mothers and Their Children: A Comparative Survey, American Journal of Orthopsychiatry, July 1981 (prevalence of disturbance among children not found to be related to mother’s sexual object choice).


author: WIEAND, Judge: KELLY, Judge,

text:
    617 A.2d 37
    Catherine E. WILLS and William W. Wills, h/w, Appellants, v. Carl J. KASCHAK, D.D.S., Leonard Limongelli, D.O., Mark Radbill, D.O., Lawrence Schmitzer, D.O., Richboro Medical Association and Louis S. Pearlstein, D.O., Appellees.
    Superior Court of Pennsylvania.
    Argued May 14, 1992.
    Filed Dec. 7, 1992.

      Laura Feldman, Philadelphia, for appellants.
    Bert C. Tuttle, Norristown, for Limongellio, Radbill, Schmitzer and Richboro Medical Ass’n, appellees.
    Before WIEAND, OLSZEWSKI and KELLY, JJ.
   WIEAND, Judge:

This is an appeal from an order transferring a civil action from Philadelphia County to Bucks County for the convenience of parties and witnesses pursuant to Pa.R.C.P. 1006(d).

The action was commenced in September, 1988, by Catherine and William Wills against Carl J. Kaschak, D.D.S., Leonard Limongelli, D.O., Mark Radbill, D.O., Lawrence Schmitzer, D.O., Louis S. Pearlstein, D.O. and the Richboro Medical Association. According to the averments of plaintiffs’ complaint, Catherine Wills sustained personal injuries as a result of medical care negligently provided by the defendants. On June 12, 1991, defendants Limongelli, Radbill, Schmitzer, and Richboro Medical Association (appellees) filed a petition to transfer venue based on the doctrine of forum non conveniens. After considering the defendants’ petition to transfer and the plaintiffs’ response thereto, the trial court entered an order granting the petition and ordering the case to be transferred from Philadelphia County to Bucks County. Plaintiffs appealed.

In reviewing orders granting a change of venue on the basis of forum non conveniens, we are guided by the following principles:

Pa.R.C.P. 1006(d) “vests considerable discretion in the trial judge to determine whether to grant a petition for a change of venue. On appeal from such an order, the only issue is whether the trial judge abused his discretion.” Fox v. Pennsylvania Power & Light Co., 315 Pa.Super. 79, 81, 461 A.2d 805, 806 (1983), citing Plum v. Tampax, Inc., 399 Pa. 553, 560, 160 A.2d 549, 553 (1960).
An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill will, as shown by the evidence or the record, discretion is abused.
In re Women’s Homoeopathic Hospital of Philadelphia, 393 Pa. 313, 316, 142 A.2d 292, 294 (1958), quoting Echon v. Pennsylvania R.R. Co., 365 Pa. 529, 534, 76 A.2d 175, 178 (1950). The supreme court has described the heavy burden facing the appellant from a discretionary trial court determination: “[I]t is not sufficient to persuade the appellate court that it might have reached a different conclusion if, in the first place, charged with the duty imposed on the court below; it is necessary to go further and show an abuse of the discretionary power.” Mackarus’s Estate, 431 Pa. 585, 596, 246 A.2d 661, 666-67 (1968), quoting Garrett’s Estate, 335 Pa. 287, 292-93, 6 A.2d 858, 860 (1939). If there is any basis for the trial court’s decision, the decision must stand. Id.

Brown v. Delaware Valley Transplant Program, 371 Pa.Super. 583, 586, 538 A.2d 889, 891 (1988).

When considering a motion for change of venue, a trial court should weigh the hardships and conveniences inherent in trying the action. Alter v. Pennsylvania Gas and Water Co., 110 Pa.Commw. 349, 355, 532 A.2d 913, 916 (1987), allocatur denied, 521 Pa. 623, 557 A.2d 726 (1989). Although the choice of forum by a plaintiff is entitled to weighty consideration, the right of a plaintiff to choose a forum is not absolute. The forum non conveniens provision inserted into Pa.R.C.P. 1006(d) was intended as a necessary counterbalance. Ernest v. Fox Pool Corp., 341 Pa.Super. 71, 75, 491 A.2d 154, 156 (1985). The rule permits a court, in its sound discretion, to transfer venue “for the convenience of parties and witnesses.”

In determining whether Bucks County is a more convenient forum than Philadelphia County for the parties and witnesses, the trial court was required to weigh three categories of factors. “First, the plaintiffs choice of forum should be given significant weight. Second, the interests of the parties should be considered, including relative ease of access to sources of proof, availability of compulsory process for the attendance of unwilling witnesses, cost of obtaining attendance of willing witnesses, possibility of a view of premises, if appropriate, enforceability of a judgment, and any other problem which affects the ease, celerity or expense of the litigation. The third category is the public interest; litigation should not be piled up in congested centers rather than being handled at its origin; jury duty should not be imposed on the people of a community which has no relation to the litigation.” Brown v. Delaware Valley Transplant Program, supra 371 Pa.Super. at 586-587, 538 A.2d at 891, citing Plum v. Tampax, Inc., 399 Pa. 553, 560, 160 A.2d 549, 553 (1960). See also: Okkerse v. Howe, 521 Pa. 509, 519, 556 A.2d 827, 832 (1989); In re Paoli R.R. Yard PCB Litigation, 137 Pa.Commw. 220, 224, 585 A.2d 608, 611 (1991).

In the instant case, the trial court concluded that a change of venue was necessary for the convenience of the parties and witnesses. The court found that: 1) the Bucks County venue allowed easier access to the sources of proof because the offices of the defendants were located there; 2) the plaintiffs also resided in Bucks County; 3) the attendance of witnesses would be easier in Bucks County because fact witnesses were either employed or resided there; 4) the alleged acts giving rise to the plaintiffs’ cause of action arose in Bucks County; 5) the case had substantially more contacts with Bucks County than Philadelphia County. The trial court also appropriately took into consideration the strong public interest of avoiding court congestion of cases that do not belong in our Commonwealth’s large urban centers. In this respect, the trial court observed:

If we were to allow these type of actions to be brought in Philadelphia’s already congested courts instead of being handled where they originated, it will compound an already overwhelmed legal system. Also, jury duty is a burden that ought not be imposed on people of a community which has no relationship to the litigation, (citations omitted). It is impossible to ignore the overwhelming burden that presently exists in the Philadelphia Court of Common Pleas with approximately 45,000 civil cases pending. Boyle v. Chester Cty. Mut. Ins. Co., et al, 21 Phila. 1 (1990). (quoting Dallas v. Orthopedic Associates, 22 Phila. 286 (1991)).
Transfer of this case alone will not alleviate the backlog that now exists in the Philadelphia Court of Common Pleas, but it is a step that must be taken. It is clear that the Philadelphia Court of Common Pleas has no connection with this litigation, except that co-defendant Pearlstein maintains an office in Philadelphia.

Tr.Ct.Op. of 11/13/91 at 5.

Under these circumstances, we conclude that the trial court acted within its discretion by transferring the action to Bucks County. Bucks County is where the treating doctors’ offices are located, where the relevant witnesses are employed, where the relevant evidence is located and where the alleged negligent conduct occurred. Furthermore, plaintiffs do not reside in Philadelphia County but are also residents of Bucks County. The defendants maintain their medical offices in Bucks County except for Dr. Pearlstein who has an office in Philadelphia, but he, too, treated Catherine Wills in Bucks County. Finally, the public interest weighs heavily on the side of transfer, as jury duty and the attendant costs of litigation should not be imposed on the people of Philadelphia County who have no relation to this litigation. See: Incollingo v. McCarron, 416 Pa.Super. 419, 611 A.2d 287 (1992) (trial court properly recognized substantial backlog of Philadelphia trial courts in determining transfer petition under Rule 1006(d)). Therefore, under the standard of review set forth above, we conclude that the trial court did not abuse its discretion by transferring the case to Bucks County.

Order affirmed.

KELLY, J., files a dissenting opinion.

KELLY, Judge,

dissenting:

I am compelled to note the following and, therefore, respectfully dissent. The appellants, Catherine and William Wills, commenced this action by filing a complaint in September, 1988. All of the defendants filed answers raising new matters, preliminary objections and served interrogatories upon appellants at various times following the filing of the complaint. In general, discovery proceeded for thirty-three months before, on June 12, 1991, several of the defendants, the appellees, filed a petition to transfer venue based upon the doctrine of forum non conveniens. In their petition to transfer venue, the appellees contended that venue should be transferred to Bucks County for the following reasons: 1) the appellants resided in Bucks County; 2) the moving defendants had their offices in Bucks County; 3) all of the treatments complained about occurred in Bucks County; 4) a Bucks County trial would be more convenient for all parties because of the parties’ ties to that county; and, 5) transfer of the lawsuit to Bucks County would result in its faster disposition because, unlike Philadelphia County, the Bucks County civil docket is not overcrowded.

The appellants, in their answer to the appellees’ petition to transfer venue, averred that one of the non-moving defendants, Louis S. Pearlstein, D.O. maintains his residence and a separate office where he provides services to patients on a routine and continuous basis in Philadelphia County; thus, all of the defendants would not be unduly burdened by a trial in Philadelphia County. The appellants also averred in their answer that Ms. Wills’ received the bulk of her treatment for her injuries which were allegedly caused by the defendants’ negligence in Philadelphia County. Additionally, the appellants averred that none of the doctors who treated Ms. Wills for her injuries and were potential witnesses at trial are residents of Bucks County. Finally, the appellants averred that the appellees failed to specify how they would be prejudiced if the case remained in Philadelphia County in light of their tardiness (thirty-three months) in filing their petition to transfer venue. However, the trial court, without receiving any evidence on the appellees’ averments, summarily entered an order transferring the case to Bucks County.

In its opinion explaining the transfer of venue to Bucks County, the trial court based its decision upon the averments contained in the appellees’ petition to transfer venue to Bucks County and upon the civil case backlog currently existing in Philadelphia County. Accordingly, I would find the methodology employed by the trial court in disposition of the appellees’ petition to transfer venue to Bucks County to be erroneous. Thus, I would reverse the order directing the transfer of venue to Bucks County and remand to the trial court for the taking of depositions on the disputed issues of fact pursuant to Pa.R.C.P. 209(a) and (b). I would reach this result for the following reasons.

The standard of review for an appeal of a trial court order transferring venue is to determine whether the trial judge’s determination was an abuse of discretion. Brown v. Del. Val. Transplant Prog., 371 Pa.Super. 583, 538 A.2d 889 (1988). An abuse of discretion includes not only an error of judgment but also an error of law. Incollingo v. McCarron, 611 A.2d 287 (Pa.Super.Ct.1992); St. Vladimir Orthodox Church v. Preferred Risk Mut. Ins. Co. 239 Pa.Super. 492, 497, 362 A.2d 1052, 1056 (1976).
A plaintiff/appellant should not be deprived of a choice of forum unless the defendant/appellees “clearly adduce facts that either (1) establish such oppressiveness and vexation to a defendant so as to be out of all proportion to plaintiffs convenience.... or (2) make trial in the chosen forum inappropriate because of considerations affecting the court’s own administrative and legal problems. These private and public interest factors must weigh strongly in favor of the defendant before the court can disturb the plaintiffs choice of forum.” Okkerse v. Howe 521 Pa. 509, 518, 556 A.2d 827, 832 (1989); Alford v. Phil. Coca-Cola Bottling, 366 Pa.Super. 510, 531 A.2d 792 (1987).
While the trial court is capable of determining matters of public interest without supporting evidence, an “informed assessment of the private interests at stake and of the particular circumstances that affect the public interest often requires the court to resolve disputed issues of fact....” Id. at 515, 531 A.2d at 795. This Court concluded in Alford that “[o]n petitions to transfer pursuant to rule 1006(d), the parties and the court must resolve all material issues of disputed fact through procedures established by Pa.R.C.P. 209.” Id. at 515, 531 A.2d at 795; see also Okkerse v. Howe, 521 Pa. 509, 556 A.2d 827 (1989); Petty v. Suburban General Hospital, 363 Pa.Super. 277, 525 A.2d 1230 (1987). There are several means by which this resolution can occur. First, pursuant to Rule 209(a) and (b), the petitioner must either “take depositions of disputed issues of fact” or “order the cause for argument on petition and answer.” Secondly, if the petitioner chooses to order the cause for argument rather than take depositions, the court may, pursuant to Philadelphia County Local Rule of Civil Procedure 140(D), order the parties to proceed as required by Rule 209 where the petition and answer present a factual dispute on material points. And finally, if the petitioner does not take Rule 209 discovery and the court does not order it, the court must, under Rule 209, consider as true all responsive allegations of fact in the answer of the petition. Alford [366 Pa.Super.] at 515, 531 A.2d at 795.

Burns v. Pa. Mfrs. Ass’n., 417 Pa.Super. 631, 612 A.2d 1379, 1381 (1992).

Instantly, after receiving the appellants’ answer, the appellees did not comply with the dictates of Pa.R.C.P. 209 as they neither proceeded to take depositions on the disputed issues of fact nor attempted to order cause for argument on petition and answer even though there were factual disputes on material issues. First, the appellants disputed whether all defendant doctors were residents of Bucks County. Secondly, the appellants disputed the appellees’ contention that all of her treatments performed in Bucks County by averring that the bulk of her treatment for the injuries caused by the defendants’ alleged negligence occurred in Philadelphia County. Finally, the appellants averred that the doctors who treated her injuries and were potential witnesses at trial were not residents of Bucks County. See Petty v. Suburban General Hospital, 363 Pa.Super. 277, 525 A.2d 1230 (1987) (in a medical malpractice action, trial court abused its discretion in granting a motion to transfer for convenience of parties and witnesses where although the facilities at which alleged negligent treatment occurred were outside forum chosen by patient, physicians conducted business in' forum chosen by patient and there was no evidence to support allegations concerning inconvenience of the majority of physicians and other medical personnel who would testify if action were tried in forum chosen by patient). Thus, the trial court was compelled either to direct the taking of depositions on the disputed issues or have deemed the factual averments in the appellants’ answer as true before disposing of the appellees’ petition to transfer venue to Bucks County. As the trial court failed to follow either of the above courses of action, I would find it erred in summarily ordering the case transferred to Bucks County.

In addition to my disapproval of the methodology employed by the trial court in its approval of the appellees’ petition to transfer venue, I also disagree with the trial court’s and the majority’s failure to consider the thirty-three month interval between the filing of the appellants’ complaint and the appellees’ petition to transfer venue. I believe that a party’s timeliness in filing the petition to transfer venue, the amount of discovery which has been completed in preparing for litigation in the chosen forum, and the status of the case on a trial court’s calendar (ie. whether the case is scheduled and ready for trial) are additional considerations which must be factored into the equation. At the federal level such considerations are indeed weighed by the courts when determining whether transfer is appropriate. See e.g. McGraw-Edison Co. v. Van Pelt, 350 F.2d 361 (8th Cir.1965) (trial court did not abuse its discretion in denying transfer when motion was not made until five months after the suit was filed); American Standard, Inc. v. Bendix Corp., 487 F.Supp. 254 (W.D.Mo.1980) (delay in moving for a change of venue is a consideration); Meinerz v. Harding Bros. Oil & Gas Co., 343 F.Supp. 681 (D.C.Wis.1972) (nine month delay sufficient to deny petition to transfer); McFarlin v. Alcoa S.S. Co., 210 F.Supp. 793 (D.C.Pa.1962) (when pretrial proceedings had gone on for nearly one year, court did not abuse its discretion in refusing to transfer to another forum).

Recently, in rejecting a trial court’s sua sponte transfer of a case under the guise of forum non conveniens, a panel of this Court recognized that the trial court had ignored the fact that neither party had, to that point (nearly four years after filing of the complaint), even suggested they were unhappy with the forum and both parties were fully prepared to proceed with trial in the chosen forum. See Greenfeig v. Seven Springs Farms, 416 Pa.Super. 580, 611 A.2d 767 (1992) (in the absence of a timely petition from one of the parties, trial court may not transfer a case to a forum deemed more convenient to the transferring court).

Finally, although I am cognizant of the increased congestion in the Philadelphia trial courts (and in other trial courts in our large urban centers), this factor alone should not be viewed as giving trial judges carte blanche authority to transfer any case, at any time, which may be as conveniently litigated elsewhere. Indeed, as Justice Musmanno once observed, “If case load is to determine availability of the courts to injured persons, then justice has become a commodity dependent on the size of the courthouse and the number of personnel therein rather than on the intrinsic merit of claims filed by the litigants.” Rini v. New York Central Railroad Company, 429 Pa. 235, 242, 240 A.2d 372, 376 (1968) (Musmanno, J., dissenting); see also Greenfeig v. Seven Springs Farms, Inc., supra 416 Pa.Super. at 586, 611 A.2d at 770 (“Although we certainly recognize the tremendous burdens placed upon our courts by inadequate and unreasonable funding limitations, such circumstances do not provide the basis for a forum non conveniens transfer of a case from one county to another, when venue is properly laid in the first county”).

The underlying factors supporting the transfer of the instant case, should have been, or were known to exist by appellees within a reasonable time after the filing of the complaint (i.e. location of appellees’ offices, appellants’ county of residence, location of fact witnesses, county in which cause of action arose). The thirty-three month delay in seeking the transfer and the trial court’s apparent disregard for this factor are further examples of the emphasis trial courts are placing on the congestion in the courts of our large urban centers when granting petitions to transfer. As this Court has cogently observed, a “trial court may not utilize a transfer of venue merely to control its docket, to preserve judicial resources, or to avoid deciding cases which are properly before it.” Horn v. Erie Insurance Exchange, 373 Pa.Super. 186, 189-90, 540 A.2d 584, 586 (1988). Therefore I respectfully dissent.

      . Although defendant Pearlstein also maintained an office in Philadelphia, his contact with the plaintiff occurred in Bucks County.

      . Plaintiffs contend that the trial court relied on facts which were not of record in determining that the defendants' alleged malpractice occurred in Bucks County. However, the basis of the plaintiffs' complaint is that Catherine Wills suffered personal injuries as a result of (a) defendant Kaschak's failure to administer prophylactic antibiotics at the time of her dental treatment and (b) the failure of defendants Limongelli, Radbill, Schmitzer, Pearlstein, and Richboro Medical Association to detect, diagnose, and/or timely treat bacterial endocarditis (and the conditions resulting therefrom) from which Catherine Wills was suffering. Therefore, there were sufficient facts to allow the trial court to make an informed decision. Vogel v. National Railroad Passenger Corp., 370 Pa.Super. 315, 536 A.2d 422 (1988). Moreover, plaintiffs' contention that her subsequent treating physicians and expert witnesses were located in Philadelphia is an inadequate basis for refusing to transfer venue. See: McReynolds v. Benner Township, 118 Pa.Commw. 215, 544 A.2d 566 (1988); Dallas v. Orthopedic Associates, 22 Phila. 286 (1991).


author: BROSKY, Judge. CIRILLO, Judge,

text:
    617 A.2d 323
    COMMONWEALTH of Pennsylvania v. Gary Ward GREENICH, Appellant. COMMONWEALTH of Pennsylvania v. Donald Nicholas FETZNER, Appellant.
    Superior Court of Pennsylvania.
    Argued March 18, 1992.
    Filed Oct. 21, 1992.
    Reargument Denied Jan. 4, 1993.

      Carl M. Janavitz, Pittsburgh, for appellants.
    James K. Vogel, Asst. Dist. Atty., Erie, for Com., appellee.
    Before ROWLEY, President Judge, and CIRILLO and BROSKY, JJ.
   BROSKY, Judge.

Gary Ward Greenich and Donald Nicholas Fetzner file consolidated appeals, at No. 902 Pittsburgh 1991 and No. 903 Pittsburgh 1991, from the judgments of sentence entered against them by the trial court. Their pre-trial proceedings were consolidated but their trials were severed. Greenich was convicted, by a jury, of obscene and other sexual materials and performances. He was sentenced to a term of imprisonment of six to twenty-three months and ordered to pay a fine of $3,500.00. Fetzner was convicted, by a separate jury, of the same crime. He was sentenced to a term of imprisonment of six to twenty-three months and ordered to pay a fine of $10,000.00.

Appellants have submitted one appellate brief and their statement of questions involved is as follows.

I. Whether the lower court erred in failing to grant appellant Greenich’s motion for a mistrial following the testimony of Mary Beth Hostert that she had made her purchases as a member of a task force on organized crime?
II. Whether the lower court erred in denying appellant Greenich an opportunity to present the testimony of Dr. Scott regarding community standards?
III. Whether the lower court erred in failing to allow appellants to argue the implications of legislative amendment to 18 Pa.C.S.A. § 5903(A)(2) and (B)?
IV. Whether the lower court erred in denying appellant Greenich an opportunity to present the testimony of Dr. Scott regarding deviant groups and in denying appellant Greenich a Mishkin charge?
V. Whether the lower court erred in denying appellant Fetzner an opportunity to testify regarding deviant groups and in denying appellant Fetzner’s request for a Mishkin charge?
VI. Whether the lower court erred in denying appellant Fetzner the opportunity to present his proffered testimony regarding scienter, in as much as, such disallowance rendered 18 Pa.C.S.A. § 5903 unconstitutional as applied?
VII. Whether the lower court erred in denying appellant Fetzner’s motion to quash the informations because failure to apply the doctrine of collateral estoppel as embodied in 18 Fa.C.S.A. 110(2) in the context of this case, is violative of due process?

Appellant’s Brief at 2-3. We affirm the judgments of sentence of the trial court.

Appellant Greenich was the manager of a store which offered for sale, inter alia, two magazines, Lisa’s World and Best of Cum, which were alleged to be obscene and which involved depictions of sadomasochistic behavior, bondage, homosexuality and males ejaculating. Mr. Greenich stipulated that he was the manager of the store and that he had knowledge of the nature and content of the magazines. Appellant Fetzner was the owner of a business that offered for sale, inter alia, two magazines, Into Bondage and Bondage Classics, which were alleged to be obscene and which involved depictions of homosexuality, group sex, heterosexual sex and sadomasochistic behavior. Mr. Fetzner stipulated that he was the manager of the store and that he was aware of the nature and content of the magazines.

Appellant Greenich first claims that the trial court erred in failing to grant a mistrial after Pennsylvania State Trooper Mary Beth Hostert testified that at the time of Mr. Greenich’s arrest she was working with the State Police Organized Crime Unit. Appellant avers that the jury could have inferred that he was the subject of an investigation into organized crime.

Ms. Hostert, who testified that she was no longer a state trooper at the time of appellant’s trial, testified that her “last two years [with the state police] was [Sic] spent working with the organized crime unit out of western Pennsylvania.” N.T., 3/8/91, at p. 54. This testimony occurred at the very beginning of the Commonwealth’s direct examination, which was designed to review Ms. Hostert’s work history with the state police. The trial court, which additionally noted that Ms. Hostert had also stated that she had investigated robberies and domestic disputes, offered to give a cautionary jury instruction stating that Ms. Hostert’s division assignment at the time of the instant crimes bore no relation to the instant crimes. Id. at 55. Appellant’s counsel stated that he did not want a cautionary instruction. Id. at 56. Appellant’s counsel then changed his mind and agreed to a cautionary instruction. Id. at 57. The trial court then informed the jury that Ms. Hostert’s prior testimony only related to her “background” as a state trooper. The trial court stated,

I want it to be clear to you that there is no relationship in this case between her involvement in the organized crime unit and the facts of this case. They have nothing to do with each other. This case is not about organized crime. There should be no implication taken from the fact that she was assigned to that organization at any time during the time that she was in the state police. And generally I’m telling you to disregard it.

Id. at 59. Appellant’s counsel indicated that he was satisfied with the trial court’s remarks to the jury. Id.

Ms. Hostert never stated that she was assigned to the organized crime unit at the time that she purchased the magazines. She simply stated that she was assigned to that unit during her final two years with the state police. Even if the jury were to (a) determine that the two year time frame coincided with appellant’s arrest, and, (b) assume that appellant was suspected of activities related to organized crime, the trial court’s immediate, explicit cautionary instruction would have dispelled any mistaken impressions reached by the jury. Hence, Mr. Greenich clearly suffered no prejudice and this claim is devoid of merit.

Appellants’ second claim is that the trial court erred in failing to allow Dr. Joseph E. Scott, a sociologist, to give expert testimony regarding contemporary community standards in Pennsylvania.

The trial court conducted an in depth in camera review of Dr. Scott. N.T., 3/7/91, at pp. 6-34. Dr. Scott stated that he was in the initial stages of undertaking a project to study sadomasochistic behavior. Id. at 11-12. He had also been involved in a completed study regarding the varying levels of violence in movies and rock-videos. Id. at 12. Dr. Scott also participated in “studies as to whether or not certain sexually explicit materials are acceptable to a reasonable degree in various and sundry communities[.]” Id. He also examined the magazines involved in the prosecution against Mr. Greenich. Dr. Scott visited video stores that specialized in adult (“X”-rated) videos, and, those that rented or sold all types of videos. He also viewed, in over thirty counties in this Commonwealth, sexually explicit material. Id. at 18. Dr. Scott visited over 200 Pennsylvania video stores that carried videos that solely depicted males ejaculating. Id. at 24. He stated that the volume of videos depicting sadomasochistic behavior were far less common than the total amount of videos depicting males ejaculating. Id. Based upon all of his aforementioned research Dr. Scott testified that videos or magazines depicting males ejaculating, such as the instant magazines, were “acceptable [to] the average adult in the state of Pennsylvania”, and, the instant sadomasochistic magazines would be offensive to the average Commonwealth resident. Id. at 27. He stated that the instant sadomasochist magazines would not have been offensive to a Commonwealth resident who was a sadomasochist.

“Generally speaking, the admission of expert testimony is a matter left largely to the discretion of the trial court, and its rulings thereon will not be reversed absent an abuse of discretion.” Palmer v. Lapp, 392 Pa.Super. 21, 27, 572 A.2d 12, 15 (1990); Commonwealth v. Brown, 408 Pa.Super. 246, 250, 596 A.2d 840, 842 (1991).

It is not required that expert testimony be presented in an obscenity prosecution. Commonwealth v. Hulehan, 338 Pa.Super. 309, 487 A.2d 980 (1985); Long v. 130 Market St. Gift & Novelty, Etc., 294 Pa.Super. 383, 440 A.2d 517 (1982). Magazines themselves are adequate evidence for a jury to determine whether the average person would find the material appealing to prurient interests. Id. Our Court, in Long v. 130 Market St. Gift & Novelty, Etc., supra; stated,

The contemporary community standard element, necessary to establish the obscenity or lack of obscenity of published material is not concerned with the availability of the material, but rather with its acceptability. The fact that one can walk into an “adult book store” in some of the towns and cities of the Commonwealth and purchase a film or publication devoted, on the whole, to bestiality, sado-masochism, or any of a number of other often-questioned sexual predilections, by no means implies that the average Pennsylvanian would not find the subject matter appealing to prurient interests. The statewide availability of sexually explicit films and publications does not bespeak their acceptability.

Id. at 392, 440 A.2d at 521.

In 1992, when adults are exposed to varying degrees of exhibitions or depictions of sexual acts in magazines, books, videos, network television, cable television and movies, “[t]o say [a] jury need[s] expert help to decide if this material is ‘obscene’ borders on the ridiculous.” Commonwealth v. Hulehan, supra, 338 Pa.Super. at 321, 487 A.2d at 986.

We find that Dr. Scott’s proffered testimony related almost exclusively to the availability of the type of sexually explicit materials similar to the magazines involved in the instant case. Since Dr. Scott could have provided little assistance to the jury in regard to the acceptance of the material by Pennsylvania residents we find that his proffered testimony would not have aided the jury in their determination of contemporary community standards. Hence, the.trial court did not abuse its discretion in failing to permit Dr. Scott to testify. Commonwealth v. Brown, supra; Long v. 130 Market St. Gift & Novelty, Etc., supra.

Furthermore, the jury was quite capable of determining, without the assistance of an expert, whether Lisa’s World and Best of Cum were obscene. Since the mass media has wrought a proliferation in our exposure to various exhibitions and depictions of sexual acts, we find that exhibitions of men ejaculating, male or female homosexuality, or, of one person degrading or applying violence to another during a sexual act are not so alien to the average Pennsylvania juror that he or she would be unable to determine if the exhibitions were obscene. Hence, the trial court properly determined that the instant jury was quite capable of determining the issues in the absence of expert testimony. Commonwealth v. Hulehan, supra.

We affirm appellants’ third claim based upon our independent review of the record, and, the August 13,1991 (Commonwealth v. Greenich, No. 1809 Erie County 1990) and August 5, 1991 (Commonwealth v. Fetzner, 1690 Erie County 1990) trial court opinions, at pp. 1-2 and pp. 14-15, respectively, of the Honorable John A. Bozza of the Court of Common Pleas of Erie County.

We affirm appellant’s fourth issue based upon our independent review of the record, and, the trial court’s August 13, 1991 opinion, at 1-2, and August 5, 1991 opinion, at 10-14. We wish to add that our Court, in Commonwealth v. Hulehan, supra, rejected the notion that expert testimony should be used to show that material directed to a “deviant sexual group” (homosexuals, sadomasochists, etc.) does or does not appeal primarily to the prurient interest of members of that particular group. Id. The panel reasoned that the jurors could decide for themselves whether the material, which was allegedly directed to a “deviant sexual group”, was obscene. Id.

Our Court also stated in Hulehan that even if magazines were composed solely of photographs portraying sexual acts between men it could not be concluded that the content of the magazines was jaimed at, or appealed only to, a clearly defined sexual group. Id. Hence, in the instant case, the fact that the confiscated magazines may have contained photographs depicting sexual acts (a) between males; (b) wherein individuals were dressed in bizarre costumes; and/or, (c) in which violence was allegedly being applied to individuals, it cannot be concluded that the content of the magazines was aimed at, or appealed only to, a clearly defined sexual group. Id. Accordingly, the trial court did not err in failing to give a jury charge regarding Mishkin v. New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed 2d 56 (1966) (In Mishkin, which was analyzed by our Court in Hulehan, the United States Supreme Court stated that when sexual material is designed for and primarily disseminated to a clearly defined sexual group, the prurient appeal component of the obscenity standard may be adjusted to consider the appeal of the material to that sexual group).

We affirm appellant’s fifth issue based upon our independent review of the record, the trial court’s August 5, 1991 opinion, at pp. 10-14, and the reasoning that we utilized in addressing issue number four, supra.

We affirm appellant’s sixth issue based upon our independent review of the record, and, the trial court’s August 5, 1991 opinion, at pp. 7-10.

We affirm appellant’s seventh issue based upon our independent review of the record, and, the trial court’s August 5, 1991 opinion, at pp. 1-6.

In conclusion, we find all of the issues raised by Mr. Greenich and Mr. Fetzner to be without merit. Accordingly, the trial court did not err in denying Mr. Fetzner’s motion to quash the informations filed against him, and, did not err in denying appellants’ motions for new trials.

Judgments of sentence affirmed.

CIRILLO, J., files a concurring and dissenting opinion.

CIRILLO, Judge,

concurring and dissenting:

I join the majority in affirming the judgment of sentence imposed on Greenich. I cannot, however, join the majority’s disposition of the sixth issue on appeal: whether the trial court erred in denying appellant Fetzner the opportunity to present his proffered testimony regarding scienter, inasmuch as, such disallowance rendered 18 Pa.C.S.A. § 5903 unconstitutional as applied? Our Crimes Code, 18 Pa.C.S. § 101 et seq., lists among its purposes the following two principles:

(3) To safeguard offenders against excessive, disproportionate or arbitrary punishment.
(4) To give fair warning of the nature of the conduct declared to constitute an offense, and of the sentences that may be imposed on conviction of an offense.

18 Pa.C.S. § 104. I believe that Fetzner has been subjected to arbitrary punishment since he could not possibly have received fair warning that his conduct was criminal. For this reason, I respectfully dissent.

Obscene materials are not protected speech under the First Amendment. Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), reh. denied, 414 U.S. 881, 94 S.Ct. 26, 38 L.Ed.2d 128 (1973); Long v. 130 Market Street Gift & Novelty of Johnstown, 294 Pa.Super. 383, 440 A.2d 517 (1982); see also Commonwealth v. Croll, 331 Pa.Super. 107, 480 A.2d 266 (1984); Commonwealth v. Hulehan, 338 Pa.Super. 309, 487 A.2d 980 (1985); Commonwealth v. Stock, 346 Pa.Super. 60, 499 A.2d 308 (1985). A state may regulate obscenity through criminal sanctions where it can demonstrate a legitimate interest in such regulation. Long, supra; Commonwealth v. Doe, 316 Pa.Super. 1, 462 A.2d 762 (1983). Thus, the General Assembly enacted section 5903 of the Crimes Code, which states:

(a) No person, knowing the obscene character of the materials or performances involved, shall:
(2) sell, lend, distribute, exhibit, give away or show any obscene materials to any person 17 years of age or older or offer to sell, lend, distribute, exhibit or give away or show, or have in his possession with intent to sell, lend, distribute, exhibit or give away or show any obscene materials to any person 17 years of age or older, or knowingly advertise any obscene materials in any manner. ...

18 Pa.C.S. § 5903(a)(2). Material, including any book or magazine, is obscene if:

(1) the average person applying contemporary community standards would find that the subject matter taken as a whole appeals to the prurient interest;
(2) the subject matter depicts or describes in a patently offensive way, sexual conduct of a type described in this section; and
(3) the subject matter, taken as a whole, lacks serious literary, artistic, political, educational or scientific value.

18 Pa.C.S. § 5903(b). See also Miller, supra. The legislature defined “knowing” as:

having general knowledge of, or reason to know or a belief or ground for belief which warrants further inspection or inquiry of, the character and content of any material described therein which is reasonably susceptible of examination by the defendant.

Id.

Problems arise, however, in determining whether material is obscene or merely pornographic. Webster’s Dictionary defines obscenity as “disgusting to the senses: REPULSIVE [;] abhorrent to morality or virtue [or] designed to incite lust or depravity.” Webster’s New Collegiate Dictionary 815 (9th ed. 1986). Pornography is defined by Webster’s as “the depiction of erotic behavior (as in pictures or writing) intended to cause sexual excitement [or] material (as books or a photograph) that depicts erotic behavior and is intended to cause sexual excitement.” Id. at 916. Simply put, all obscenity is pornographic, yet not all pornography is obscene. The key importance of this distinction is that the statute may only prohibit that which is obscene, not pornographic. To determine what is obscene as opposed to pornographic, we rely on juries. It is the jury that decides whether a particular book or magazine contains obscene materials, not an individual, not the legislature, not law enforcement officials, and not a judge. Here lies the downfall of Fetzner’s obscenity conviction.

It is not until the jury stamps pornographic materials with the label of obscenity that a person is notified that what he or she sold was actually obscene. How can a person, therefore, knowingly sell obscene materials without notice that what he or she sells is obscene in the first place? To start, a person might read the statutory definition of “sexual conduct” since the depiction or description of sexual conduct is necessary to convict under the statute. The statute, at the time of the offense, defined sexual conduct as “[pjatently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, and patently offensive representations or descriptions of masturbation, excretory functions and lewd exhibition of the genitals.” 18 Pa.C.S. § 5903(b) (emphasis added). The determination of patent offensiveness is one made by a jury; no seller of sexually explicit materials can be expected to know if a jury will later find them patently offensive.

Under the statute, a merchant may be convicted where the merchant has general knowledge of the magazine’s contents, reason to know or a belief or a ground for belief that an inspection into ;the character of the magazines is necessary. See 18 Pa.C.S. § 5903(b). Here, Fetzner stipulated to the fact that he knew the nature of the contents of the magazines. A merchant may know that the magazines are pornographic, yet not know whether or not they are obscene. Fetzner did, however, make an attempt to inquire into the obscene nature of the materials,' and evidence in the record suggests that after his own investigation, he could conclude that these items were not obscene.

During argument on pre-trial motions, the trial court heard statements from the defense attorney which suggested that, in an attempt to ascertain whether the materials Fetzner was selling were obscene, he contacted the Erie County District Attorney’s Office and the Erie County Coalition Against Violent Pornography. The district attorney’s office was not willing to assist Fetzner in censoring the materials. It is unclear what response the Coalition gave Fetzner. Further, the Pennsylvania State Police had previously seized and reviewed certain magazines in the store but did not charge him under the statute on that occasion. These seized materials were also returned to Fetzner. Fetzner also was tried twice for selling obscene materials. A previous trial in Erie County for obscenity, apparently on similar yet not identical material, ended in acquittal for Fetzner. However, prior to his arrest on these charges, Fetzner had been convicted in Crawford County for a violation of section 5903.

The trial court did not permit Fetzner to present this evidence of his confusion regarding whether the materials were obscene under the contemporary community standards. Excluding the evidence, in my opinion, constituted reversible error by the trial court. “Admission or exclusion of evidence lies within the sound discretion of the trial judge.” Commonwealth v. Barnhart, 345 Pa.Super. 10, 33, 497 A.2d 616, 628 (1985). In order to reverse a trial court order excluding evidence, a reviewing court must find an abuse of discretion and actual prejudice. Commonwealth v. Wagner, 383 Pa.Super. 128, 556 A.2d 462 (1989). It is axiomatic that any evidence tending to prove or disprove an element of a crime is admissible as relevant. See Commonwealth v. Uhrinek, 518 Pa. 532, 544 A.2d 947 (1988) (accused has fundamental right to present relevant, defensive evidence). The evidence excluded was intended to disprove the element of a knowing violation of the obscenity laws. Thus, evidence of Fetzner’s confusion was relevant and should have been presented to the jury to determine whether Fetzner committed a knowing violation. Uhrinek, supra.

Moreover, the evidence itself concerns whether Fetzner indeed had notice that his magazine were obscene. The evidence shows that he heeded the statutory definition of knowledge and made inquiries to law enforcement officials concerning the potential obscenity of the materials he sold, or at a minimum, materials similar to those he had sold in the past. Obviously, magazines are available for limited periods of time. A salesperson of pornographic magazines may, therefore, have to rely on comparing previously scrutinized materials with those put on sale later. In Commonwealth v. Dell Publications, Inc., 427 Pa. 189, 233 A.2d 840 (1967), the Pennsylvania Supreme Court set forth two ways an individual may attempt to discern whether or not material is obscene:

There are two yardsticks by which contemporary community standards may be judged. One is to compare the challenged book to other books which have either been held entitled to the protection of the First Amendment or, in the absence of litigation, which meet contemporary community standards and are substantially similar to the challenged book. The other is to consider the reception the book received from the community when it was released.

Clearly, Fetzner had attempted to satisfy this first “yardstick.” He compared the materials to the earlier prosecution materials and inquired with local officials and groups about the contemporary community standards to determine whether these materials were obscene or not. In my opinion, Fetzner did just what the statute required him to do; however, he unfortunately received an unsympathetic and unhelpful response to his inquiries.

Allowing testimony of these prior events could have negated the Commonwealth’s proof of Fetzner’s knowledge that the materials he sold were obscene. I, therefore, believe the trial court abused its discretion by failing to allow Fetzner to testify about his inquiries, prior adjudications, and the prior confiscations at his store by the district attorney. Barnhart, supra; Uhrinek, supra; Wagner, supra. Since Fetzner attempted to obtain notice of the contemporary community standards and present this evidence to demonstrate the basis for his claim of lack knowledge or notice, he should not be penalized by the courts. Not allowing such evidence effectively denied Fetzner a defense to the charge and constituted, in my opinion, actual prejudice. Wagner, supra. Moreover, the majority, by affirming the trial court’s decision, eliminates the mens rea requirement of knowledge for a violation of the statute and places, in its stead, strict liability. I believe this is so because the nature of this obscenity trial was such that once the jury determined the magazines to be obscene, Fetzner had no available defense. Moreover, the failure to allow such proof frustrates the explicit policies of the crimes to decry arbitrary punishment and provide notification of criminal conduct. See 18 Pa.C.S. § 104(3) & (4).

I would, therefore, reverse Fetzner’s judgment of sentence and remand for a new trial. I do, however, agree with my esteemed colleagues in the majority that Greenich’s judgment of sentence should be affirmed.

      . 18 Pa.C.S. § 5903.

      . In determining contemporary community standards the "community means the State.” 18 Pa.C.S. § 5903(b).

      . We reiterate that Mr. Greenich was accused of selling two magazines that contained exhibitions, principally in the form of photographs, of sadomasochistic behavior, bondage, homosexuality and males ejaculating.

      . Dr. Scott testified that individuals who viewed this type of "performance” belonged to a “deviant subgroup.” N.T., 3/7/91, at 25.

      . After these offenses occurred, the obscenity sections of the Crimes Code were amended by Act of December 19, 1990, P.L. 1332, No. 207, § 1, effective on that date. The changes, in section 5903(a)(2) solely increase the age of proscription for obscenity sales, etc., to eighteen-year-olds.

      . The amended section 5903(b) defines sexual conduct as:
      Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, including sexual intercourse, anal or oral sodomy and sexual bestiality; and patently offensive representations or descriptions of masturbation, excretory functions, sadomasochistic abuse and lewd exhibition of the genitals.
      18 Pa.C.S. § 5903(b) as amended by Act of December 19, 1990, P.L. 1332, No. 207, § 1, effective immediately.


author: DEL SOLE, Judge:

text:
    617 A.2d 330
    COMMONWEALTH of Pennsylvania v. Floyd DUTTER, Appellant.
    Superior Court of Pennsylvania.
    Argued June 3, 1992.
    Filed Nov. 18, 1992.

      Gene P. Riccardo, Dunmore, for appellant.
    John J. Notarianni, Asst. Dist. Atty., Scranton, for Com.
    Before CAVANAUGH, DEL SOLE and BECK, JJ.
   DEL SOLE, Judge:

This is an appeal from a judgment of sentence of three (3) to (6) years. Appellant, Floyd Dutter, pleaded guilty to the crime of incest. After his Motion to Reconsider Sentence was denied by the lower court, he filed this appeal.

Appellant alleges that the trial court, without indicating why, imposed a sentence outside of the Sentencing Guidelines. He also asserts that it failed to take into account certain mitigating factors that were brought to its attention.

Sentencing is within the sound discretion of the trial judge and a sentence will not be disturbed by an appellate court absent a “manifest abuse of discretion”. Commonwealth v. Minott, 395 Pa.Super. 552, 555, 577 A.2d 928, 929 (1990).

The only constraints placed on the exercise of the trial court’s discretion in sentencing matters is that the sentence imposed must be within statutory limits and the reasons for the sentence must be placed on the record. In addition, the statement of the reasons for sentence must demonstrate that the trial court has considered the sentencing guidelines and adhered ¡to the general standard “... that the sentence imposed should call for confinement that is consistent with the protection of the public; the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant.” See 42 Pa.C.S.A. § 9721; Commonwealth v. Smith, [369 Pa.Super. 1] at 5, 6, 534 A.2d 836 (1987).

Commonwealth v. Stalnaker, 376 Pa.Super. 181, 186, 545 A.2d 886, 889 (1988).

For the crime of incest, which carries an offense gravity score of six (6), the Sentencing Guidelines recommend a minimum standard range sentence of four (4) to twelve (12) months; a minimum of twelve (12) to eighteen (18) months in the aggravated range; and a minimum of four (4) to eight (8) months in the mitigated range. 42 Pa.C.S.A. § 9721(b). Appellant did not have a prior record score and was sentenced to a minimum of thirty-six months imprisonment, eighteen months beyond the maximum applicable aggravated range of sentencing. The lower court offered the following reasons for the sentence imposed.

Well, we appreciate the comments that have been made. And these are very difficult types of cases for the court in trying to weigh all of the circumstances here. We have gone over the presentence investigation, and we have read the therapist’s report. And we have to balance ... all of the things that have affected Mr. Dutter, but we have a victim here, too, who has been seriously affected by all of the things that Mr. Dutter has done, and it wasn’t just a one time occurrence.
In this case, this victim was subjected to repeated sexual assaults over a long period of years. And that’s such a grave offense under any circumstance. We are talking about rehabilitation, but we have to protect society from these kind of things that can really destroy a person. He has a chance to become rehabilitated, but under all of these circumstances we feel that his rehabilitation will not be able to let him go free or in work release at this time. We feel that confinement will certainly be a help in rehabilitating him. He was a threat over these years to the welfare of the children, and it is such a grave offense that any lesser sentence than confinement would certainly depreciate the seriousness of the offense. We have to take all of that into consideration.
We appreciate the fact that he has gone into counseling, but that has begun after all of these years when he knew he had a problem and continued to do the same kinds of things to this child. These are so serious a matter that the court cannot in good conscience just think of Mr. Dutter. We have got to think of the victims in these kinds of cases.
So under all of the circumstances, and for all the reasons that we have mentioned, even listening to all of your comments, the court at this time will sentence Mr. Dutter to incarceration at a state correctional institution for a minimum term of three years to a maximum term of six years.

(N.T. Sentencing Proceeding, 11/25/91, pp. 11-12).

Section 9721(b) of the Pennsylvania Sentencing Code, 42 Pa.C.S.A. § 9701 et seq., places the following requirement on a court that chooses to sentence outside of the guidelines.

In every case where the court imposes a sentence outside the sentencing guidelines adopted by the Pennsylvania Commission on Sentencing pursuant to section 2514 (relating to adoption of guidelines for sentencing) and made effective pursuant to section 2155, the court shall provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines. Failure to comply shall be grounds for vacating the sentence and resentencing the defendant.

42 Pa.C.S.A. § 9721(b).

This court has held that “the requirement of a contemporaneous written statement explaining any deviation from the Sentencing Guidelines is satisfied when the sentencing judge states the reasons for his actions on the record and in the defendant’s presence.” Commonwealth v. Clever, 395 Pa.Super. 192, 196, 576 A.2d 1108, 1110 (1990) [citations omitted].

Appellee argues that because the court had benefit of Appellant’s presentence report, under the holding in Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988), even though the court did not mention the guidelines during the sentencing proceeding, we should presume that the sentencing judge considered them. We disagree. Devers held that a sentencing court was not required to state its reasons for imposing a sentence on the record where a presentence report existed and the sentence imposed was within the sentencing guidelines. “[W]e shall continue to presume that the sentencing judge was aware of relevant information regarding the defendant’s character and weighed those considerations along with mitigating statutory factors.” Id., 519 Pa. 88, 101-102, 546 A.2d 12, 18. In Commonwealth v. Rich, 392 Pa.Super. 380, 572 A.2d 1283 (1990), however, this court explicitly limited the applicability of the rule in Devers to those cases in which the sentence imposed was within the guidelines and maintained that where a sentencing court sentences a defendant outside of the guidelines it must satisfy the “contemporaneous written statement” rule contained in 42 Pa.C.S.A. § 9721 by stating its reasons for the deviation. See also Commonwealth v. Royer, 328 Pa.Super. 60, 476 A.2d 453 (1984); Commonwealth v. Chesson, 353 Pa.Super. 255, 509 A.2d 875 (1986); and Commonwealth v. Sanchez, 372 Pa.Super. 369, 539 A.2d 840 (1988) (en banc).

The § 9721(b) “contemporaneous written statement” requirement applicable when a sentence deviates from the guidelines is distinguishable from the general requirement in both Superior Court case law and § 9721(b) that the record contain the reasons for any sentence imposed for a felony or misdemeanor. Thus, the rationale underlying our Supreme Court’s decision in Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988), which disapproved the Superior Court case law concerning the contours of the court’s statement of reasons for a sentence imposed, is inapplicable to this case.

Rich, 392 Pa.Super. at 384, n. 5, 572 A.2d at 1285, n. 5.

In the case sub judice, our review of the record reveals that the court did not articulate its reasons for deviating from the guidelines. If Appellant’s sentence had been within the guidelines, under Devers, supra, we would have presumed that the court having had the benefit of Appellant’s presentence report, applied the guidelines and it therefore would not have been required to specifically outline the sentencing ranges or state its reasons for Appellant’s sentence on the record. “It would be foolish, indeed, to take the position that if a court is in possession of the facts, it will fail to apply them to the case at hand.” Id., 519 Pa. 88, 102, 546 A.2d 12, 18. The rule in Devers, however, is inapplicable in cases where the court has departed from the sentencing guidelines. Therefore, “[i]f the court then finds it appropriate to sentence outside of the guidelines, of course, it may do so as long as it places its reasons for the deviation on the record.” Commonwealth v. Cornish, 403 Pa.Super. 492, 497, 589 A.2d 718, 721 (1991).

In the present case, the court has failed to provide us with those reasons. While the lower court stated that given the nature of the crime, a sentence of confinement was proper, it has failed to apprise the defendant of its reasons for departing from the guidelines, and having failed to do so, did not fulfill the requirement for a “contemporaneous written statement” as outlined in 42 Pa.C.S.A. § 9721(b).

Accordingly, we vacate the judgment of sentence and remand this matter to the trial court for resentencing. Jurisdiction relinquished.