author: TAMILIA, Judge: BECK, Judge,

text:
    602 A.2d 1382
    In re DONNA H., a Minor. Appeal of DONNA H., the Above Named Minor.
    Superior Court of Pennsylvania.
    Argued Nov. 19, 1991.
    Decided Feb. 5, 1992.

      Georgene Siroky, Pittsburgh, for appellant.
    Frank B. McWilson, West Mifflin, for parents of Donna H., participating parties.

      Laura J. Whiteman, Pittsburgh, for Children and Youth Services, participating party.
    Before BECK, TAMILIA and HESTER, JJ.
   TAMILIA, Judge:

This is an appeal by appellant, Donna H., a minor, from the trial court’s February 8,1991 Order placing Donna H. in the continued custody of her parents. Children and Youth Services (CYS), appellee, joins in the brief of appellant.

Donna was born May 1,1988 and was adjudicated dependent in December, 1988, as a result of injuries suffered when her mother, appellee, Marjorie H., who was intoxicated, struck the grandmother of Donna, who was holding her at the time. The court placed Donna in the custody of the Edgars, who were neighbors and friends of Donna’s family. After Marjorie was released from jail, she completed a four-week detoxification program at St. Francis Hospital. On June 7, 1989, at a regular dispositional review hearing, the court received evidence Marjorie’s detoxification program was to extend five or six weeks after the hearing. The court decided a three-month review would be appropriate, and continued the placement of Donna with the Edgars, who by this time were a CYS foster home. Another periodic review on September 6, 1989 resulted in an Order that Donna remain with the Edgars while CYS pursued a plan to return Donna to her mother in three to four months, with the ultimate goal of reunification. At this hearing a CYS caseworker testified there had been several domestic quarrels in the home, some alcohol related, but since early July the family seemed to progress and stabilize. A review hearing on December 6, 1989 disclosed Marjorie had continued her drug and alcohol therapy and there had been no reported domestic incidents since July, 1989. CYS recommended the immediate return of Donna to Marjorie’s custody. Even though Donna had spent twelve of the nineteen months of her life with the Edgars, the court ordered Donna returned to her mother’s custody, with visitation by the Edgars allowed on a diminishing basis. Approximately two months later, on February 8, 1990, a shelter hearing was held in the interest of Donna H. and the new CYS caseworker informed the court that on February 6, 1990, upon request, police officers responded to a reported domestic dispute at the home of Marjorie, Donna and Anthony C., Marjorie’s boyfriend. One officer found Anthony C. passed out on the stairway, and he arrested him for public drunkenness. The officer stated in his report he found Marjorie in the apartment very intoxicated and noted Donna needed her diaper changed and was drinking from a bottle containing very sour milk. After Marjorie was arrested, the court once again removed Donna from her home and placed her in the custody of CYS, who again placed Donna with the Edgars. On August 10, 1990, the court reviewed Donna’s placement and decided to return the child to her mother because of the steady progress she and her boyfriend had made in dealing with alcoholism and domestic problems. The next review was scheduled for February 8, 1991. On January 29, 1991, police stopped Marjorie for driving erratically and under the influence of alcohol. Donna was sitting unrestrained in the backseat of the car at the time. Marjorie admitted to the officers she had been drinking and had taken Donna to a bar to search for her boyfriend. At the review hearing, Marjorie testified that Donna’s awakened state at the late hour of almost 2:00 a.m. was usual for the child since her father worked such late hours. Following the testimony of a CYS caseworker, the court questioned Marjorie and her friend, but did not allow either counsel for the child or CYS the opportunity to cross-examine either witness. The court then permitted Marjorie's attorney to re-call the CYS caseworker to discuss Donna’s general care apart from the incident. The court did not permit counsel for the child to introduce any testimony or call any witnesses or even state a position for the record on behalf of the child. The court indicated its belief the occurrence was an isolated one and, therefore, ordered that Donna remain in the custody of her mother. On May 10,1991, the court held a periodic review and found Maijorie had no relapses and was providing proper care for Donna.

Counsel for Donna H. and CYS argue the court, during the February 8,1991 hearing, did not provide them with the opportunity to present any evidence beyond the court’s own inquiry which interrupted the presentation of their case. They argue the January, 1991, incident established Donna was again at risk of serious harm due to her mother’s inability to control her drinking and, therefore, Donna’s best interests require removal to foster care until her parents successfully complete proper rehabilitation.

Marjorie responds the issue is now moot because she is currently providing proper care for Donna in her house. She also argues the trial court properly weighed current facts and Marjorie’s parenting ability against her past behavior.

Our standard of review and greatest concern with child custody determinations of the trial court is to determine the best interest of the child. In Belan v. Belan, 399 Pa.Super. 458, 582 A.2d 684 (1990), this Court stated:

In reviewing a custody order, we are not bound by findings of fact made by the trial court which are unsupported in the record, nor are we bound by the trial court’s inferences drawn from the facts. However, on issues of credibility and weight of the evidence, we defer to the findings of the trial judge, who has had the opportunity to observe the proceedings and the demeanor of the witnesses. Only where we find that the custody order is “manifestly unreasonable as shown by the evidence of record ...” will an appellate court interfere with the trial court’s determination. Therefore, unless the trial court’s ruling represents a gross abuse of discretion, we will not interfere with its order awarding custody.

Id., 399 Pa.Superior Ct. at 462, 582 A.2d at 686-687, quoting Mumma v. Mumma, 380 Pa.Super. 18, 21, 550 A.2d 1341, 1343 (1988) (citations omitted).

In In the Interest of Clouse, 244 Pa.Super. 396, 368 A.2d 780 (1976), this Court explained the proper method the trial court should adhere to in conducting a child custody case and the consequences if it is not followed.

In a child custody case, the hearing judge should receive evidence from all interested parties, and the child should be represented by counsel, for the child’s interest may be distinct from any other party’s. The judge should also receive evidence from objective, disinterested witnesses. His inquiry should be comprehensive and searching, and his decision supported by a full discussion of the evidence. If the hearing judge does not comply with these requirements, on appeal the case will be remanded for further proceedings. This is so because “in child custody cases [the scope of our review] is quite broad and, while we cannot nullify the fact-finding function of the hearing judge, we are not bound by a finding which has no competent evidence to support it.”

Id., 244 Pa.Superior Ct. at 399-400, 368 A.2d at 781-782 (citations omitted), quoting Commonwealth ex rel. Morales v. Morales, 222 Pa.Super. 373, 376, 294 A.2d 782, 783 (1972); In Re Barclay, 321 Pa.Super. 417, 468 A.2d 778 (1983); In the Interest of Theresa E., 287 Pa.Super. 162, 429 A.2d 1150 (1981); see also In the Interest of Jones, 286 Pa.Super. 574, 429 A.2d 671 (1981) (“We agree that the utmost concern is for the children’s welfare [and therefore] nothing short of the ‘comprehensive and searching inquiry into the facts’ mandated by decisions of this court will be acceptable.”) Id., 286 Pa.Superior Ct. at 584, 429 A.2d at 676 (citations omitted).

After a careful review of the record, we find the trial court, during the February 8, 1991 hearing, did not give counsel for Donna and CYS an opportunity to present their case and evidence and did not perform a “comprehensive and searching inquiry” in determining Donna H.’s best interests. In view of Marjorie’s past behavior, even an “isolated incident” could not be ignored and, therefore, a full hearing is required to determine whether the court should remove the child or consider further remedial programming for her parents. While we are cognizant of the necessity not to substitute our judgment or discretion for that of the trial judge, we fail to see the basis for the trial court’s determination that the incident of January 29th could be distinguished from the previous conduct, when alcohol abuse by one or both adults appeared to be one of the contributory factors to earlier removals of the child.

In In Re Swope, 391 Pa.Super. 484, 571 A.2d 470 (1990), we stated the burden of proof in a dependency proceeding is upon the petitioner attempting to remove custody from the parent to show by clear and convincing evidence the juvenile is without proper parental care and such care is not immediately available. In the present case, appellee argues and the trial court found counsel for Donna H. did not meet this heavy burden of proof in light of the evidence presented at the hearing.

We must reiterate the trial court never gave counsel the opportunity to meet its burden of presenting “clear and convincing” evidence that would put to test Marjorie’s ability to adequately provide future care for Donna. Further, the record claimed to support that the trial court’s Order “must be reasonably complete and the hearing judge must by his opinion give us the benefit of a thorough analysis of the record.” In Re Long, 313 Pa.Super. 47, 52, 459 A.2d 403, 405 (1983). Here, the trial judge analyzed the January 29, 1991 incident and the situation in the home since that time, but did not seem to take into account the past behavioral and domestic problems of the mother. The failure of the trial court to permit the establishment of a full and complete record concerning these past episodes and to relate them to the one at issue, denied him the opportunity to properly evaluate the case and prevents this Court from performing an appropriate appellate review.

In its Opinion, the trial court did discuss some other past episodes and relapses of the mother, but stated in all of these situations, removal of Donna was necessitated by the mother’s physical unavailability and, therefore:

This Court believes that the situation presented at the hearing on February 8, 1991, is distinguishable for the Mother was physically available to provide care and thus for the first time in the context of a request for removal arose the issue of whether this immediately available parental care would be proper care.

(Slip Op., Jaffe, J., 5/23/91, pp. 4-5.)

The court concluded “neither the Child Advocate nor the caseworker presented any evidence in regard to this essential inquiry.” Slip Op. at 5. While this may be factually true, the record supports appellant’s position they were denied an opportunity to do so and the fundamental requirements of due process required in a juvenile dependency proceeding were lacking because of the procedure adopted by the trial court. See Clouse, supra. The unavailability of the mother of which the trial court speaks of was a result of the mother’s alcoholism and relationship with her boyfriend. The incident of January 29th involved the mother’s intoxication and search for her boyfriend at 2:00 a.m. with Donna H. in the backseat. We fail to see how the mother’s availability is the key to a proper decision in this case when the precipitating factors were and have been the same throughout. Thus we must remand the case to give counsel for Donna and CYS the opportunity to establish for the record the elements which they believe were properly supported by the evidence which would address the mother’s ability to continue custody and care of Donna in the future.

Appellee argues the removal question is moot because no controversy exists, khe asserts the May 10, 1991 dispositional review hearing shows she has been providing proper parental care since the February, 1991 Order and there have been no more incidents or complaints from May, 1991 until the present time. Appellee correctly implies the evidence of past episodes of alcoholism and domestic quarrels of the mother and her boyfriend arguably fail to show the mother cannot currently and in the future provide proper care for Donna. But we find this removal evidence is still very much a proper issue for consideration in determining the question of the mother’s future ability to care for Donna. Therefore, counsel for Donna must be given the opportunity to address this question at the rehearing and the issue is not moot. In addition, because of the possibility or likelihood that a similar procedure will occur in the future in this or other cases, mootness will not be the basis for dismissing the action or affirming the trial judge. Devlin v. Osser, 434 Pa. 408, 254 A.2d 303 (1969).

We remand the case for a rehearing consistent with this Opinion.

Jurisdiction relinquished.

BECK, Judge,

dissenting:

I dissent. I would affirm the trial court’s February 8, 1991, order to leave the child in the custody of her mother. I believe that the trial court’s ruling was amply supported by the evidence adduced at the February hearing. I consider the majority’s conclusion that a remand is necessary to be wholly unwarranted, indeed pointless.

I have carefully reviewed the record and find no support for the majority’s conclusion that the trial court failed to provide counsel for the minor child and counsel for Children and Youth Services (CYS) the opportunity to develop a full record in the instant case. In fact, it is clear to me that at the February hearing the trial court fully and fairly determined that the petitioners had not met their burden in attempting to remove the child from the custody of her mother.

In the first place I note that appellant has failed to include in her brief a statement of questions involved. Pa.R.A.P. 2116 mandates the inclusion of such a statement and indicates that it is considered “in the highest degree mandatory”. Ordinarily this court will not consider any point which is not set forth in a statement of questions involved. In this case, the majority bases its reversal on an argument which not only is not set forth in the omitted Rule 2116 statement, but is also only vaguely alluded to in the body of appellant’s brief. Indeed, these indirect allusions to the argument that a full hearing was not permitted in the argument portion of appellant’s brief is the first time such an argument was made by any party.

For instance, in its statement of matters complained of on appeal filed with the trial court, counsel for the child only alleged that the trial court erred in failing to find that mother’s ongoing alcoholism amounted to clear and convincing evidence of the necessity to remove Donna from her care, along with a claim that hearsay was improperly admitted. Nowhere did appellant allege, however, prior to filing its brief with this court, that the trial court prevented counsel from presenting Donna’s case, interrupted counsel, or failed to provide counsel with an opportunity for cross-examination. Other than objecting to the admission of alleged hearsay, appellant gave no indication at the time of the hearing that it was dissatisfied with the manner in which the hearing was conducted. The record simply does not support appellant’s vague claim that the opportunity for a full hearing was somehow impeded by the trial court.

Nothing which occurred at the February hearing substantiates the belated argument, which the majority accepts and upon which it bases its remand decision, that counsel was afforded no opportunity to present its case. There is not the slightest indication that counsel for Donna or for CYS had any evidence or argument to offer which the trial court was unwilling to hear. Even now, counsel does not suggest what evidence, if any, it was prevented from presenting to the trial judge.

Moreover, it is my view that whatever error may have occurred at the February hearing has been rendered moot by the findings and conclusions occasioned by a later hearing on May 10, 1991. At the May 10, 1991, hearing CYS testified that the mother continued to make progress in her therapy. In addition, the CYS worker testified several unannounced home visits revealed that the family was doing “very well.”

Appellant’s true challenge in the case is not a failure to award appellant a full hearing but is a challenge to the trial judge’s interpretation of the significance of the January 29th episode. On January 29 the mother who had been drinking was driving her car. The child was in the back seat and was not buckled into a harness. The trial judge weighed this isolated episode against the steady progress mother had made towards rehabilitating herself, the salutary goal of family reunification and the cessation of the constant shift of custodians for Donna. Apparently, appellants conclude that the trial judge did not give appropriate weight to the relapse even in light of the significant progress mother had made and the fact that, otherwise, Donna was well cared for. In my view, the argument that the judge did not assign the incident determinative weight is not a proper basis upon which to premise reversal. This is particularly so in light of the trial court’s intimate and thorough familiarity with the case. The trial judge has overseen this dependency proceeding for almost two years.

A review of the February hearing which is the subject of this appeal reveals sufficient testimony to support the court’s determination not to remove Donna from her mother’s custody. Background of the case reveals that Donna was first adjudicated delinquent in December, 1988, when she was only about seven months old and was placed in the foster care of neighbors and close family friends, the Ed-gars. Henceforth commenced a series of frequent, closely monitored reviews and hearings, all of which occurred before the same trial judge. In general, the parties, particularly mother and child, have been represented by the same counsel throughout.

Reviews were held before the trial court on: February 24, 1989; June 7,1989; September 6, 1989. Finally, on December 6,1989, after being satisfied that mother had made both substantial efforts and progress in conquering her alcohol abuse problem and had demonstrated her ability to care for her child, the trial judge returned Donna to her mother’s custody. The court also ordered that the foster family be permitted regular visits. At the December 6, 1989, hearing the trial court found that the progress mother had made was “as good a report as [he] had gotten for reunification”.

Oversight continued, however, and in February, 1990, Donna was again removed from the mother’s care and replaced with the foster family. This occurred as a result of a domestic dispute at mother’s home which was precipitated by alcohol abuse. Another review took place on May 9, 1990, which indicated that mother was participating in an alcohol rehabilitation program, receiving counseling and attending regular AA meetings. Further review was scheduled for August 10, 1990.

On August 10, 1990, the trial court once again returned Donna to her mother's custody. The trial court found that mother had steadily progressed “in dealing with her alcoholism, parenting skills, and personal and domestic problems”. Mother’s therapist reported that she was doing well, there was no evidence of a relapse into former problems and as a result CYS recommended that Donna be returned to her mother. The Edgars were permitted continued access to Donna and a review was scheduled for February 8, 1991.

At the February hearing it came to the court’s attention, through the testimony of the CYS caseworker, that on January 29, 1991, mother had been stopped for drunk driving and that Donna was with her in the car, unrestrained by a carseat. The CYS caseworker indicated that, aside from this incident, the gravity of which no one diminished, mother was “doing well ... attending therapy and ____[that] Donna is doing well with her mother”.

In fact, the caseworker reiterated later in the hearing that “[t]here has never been a concern about how [the child] has been cared for.” The seriousness of this episode prompted extensive questioning of the mother by the trial judge regarding the circumstances which led up to this dangerous breach of parental responsibility. Apparently, the mother’s sincerity and credibility convinced the trial court “that she has learned a lesson from this serious, but isolated, failure on her part and that it will not be repeated.” Therefore, the trial court continued Donna’s custody with her mother.

Between August 10, 1990, when the trial court returned Donna to her mother’s custody for the second time, and February 8, 1991, the record reveals consistent headway on mother’s part towards conquering her alcohol problems. It is clear from the record that the trial court took very seriously the lapse in judgment and responsibility which was represented by the January 29th incident. It is without any foundation, in my view, to conclude as the majority did that the trial court “did not seem to take into account the past behavioral and domestic problems of the mother.” The trial court was exceedingly aware of and sensitive to mother’s past problems and had in fact removed the child from her custody twice before. However, on February 8, the evidence overwhelmingly substantiated the trial judge’s conclusion that mother’s significant overall progress and ability to provide proper parental care outweighed the isolated incident relied upon by CYS to recommend removal.

The majority seems to think that the trial judge lacked sufficient information to make a decision at the February hearing. Even counsel for Donna concedes in its brief to this court that it would have been absurd to demand or expect that CYS or Donna’s counsel be required to recount the history of the case to the trial judge who had presided over this proceeding from the start. Appellants presumed, rightly, that the judge knew the case extremely well, having conducted periodic hearings every three months for two years. The nature of the “full and complete record” which the majority now remands to establish is unclear. In my view, despite its protestations, the majority is doing precisely what this court must not do in reviewing custody decisions such as this one, and that is, substituting its judgment for that of the trial court which has conscientiously and painstakingly followed the case from its inception. I believe that the trial court, with its unique opportunity to see and hear the witnesses and place the case in proper context, is in a far better position than is this court to appreciate and decide the best interests of Donna and the ability of her mother to properly care for her. I would affirm the trial court’s considered order.

      . In light of our disposition of this case, we need not address appellant’s argument the trial court erred in admitting the out-of-court letter of the therapist, which concerned the psychological impact of the foster parents’ visits on the mother, without allowing appellant to cross-examine the declarant.

      . It is unclear to me what the remand is expected to accomplish in light of continued supervision by CYS after the February hearing and a later hearing by the court confirming that the family was doing well.


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    602 A.2d 1389
    David J. HOLMES, as Administrator of the Estate of Joanne C. Holmes, Deceased, and David J. Holmes, Individually, Appellant, v. Michael LADO, M.D.
    Superior Court of Pennsylvania.
    Argued Dec. 17, 1991.
    Decided Feb. 13, 1992.
    Petition for Allowance of Appeal Denied July 1, 1992.

      Edward M. Brennan, Pottsville, for appellant.
    Donald H. Lipson, Allentown, for appellee.
    Before CAVANAUGH, FORD ELLIOTT and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the order of the Court of Common Pleas of Schuylkill County, granting partial summary judgment in a medical malpractice action. Appellant, David J. Holmes, contends that the trial court erred in granting partial summary judgment because there exists an issue of material fact pertaining to when the victim discovered the injury allegedly caused by appellee. For the following reasons, we affirm.

The record reveals the following facts. On March 17, 1982, Joanne C. Holmes, appellant’s wife, consulted appellee, Dr. Michael Lado, concerning lumps that she felt in her right breast. After examining Mrs. Holmes, appellee ordered a mammogram. The mammogram was performed on March 19, 1982 at the Good Samaritan Hospital, and the radiologist report therefrom indicated bilateral cystic changes in both breasts caused by fibrocystic disease. The report also noted that no masses were found and that “no mammographic criteria of malignancy” existed. On April 19, 1985, appellee again examined the lumps in Mrs. Holmes’ right breast and ordered a mammogram. On April 22, 1985, another was performed, and again, the radiologist report noted bilateral cystic changes and no masses. Appellee then scheduled Mrs. Holmes for a six-month checkup. Before the six-month period expired, in August, 1985, Mrs. Holmes returned to appellee. Appellee at that time found a mass in Mrs. Holmes' right breast and, as a result, referred her to Dr. Abdul Wahab. From August 26,1985 to September 1, 1985, Mrs. Holmes was hospitalized so that a biopsy could be performed. After the biopsy, Mrs. Holmes was diagnosed as having Stage III breast carcinoma. Thereafter, Mrs. Holmes underwent a mastectomy and received chemotherapy. In November 1986, Mrs. Holmes began to experience headaches. A CAT scan revealed metastasis to the right frontal and temporal lobes of the brain . As a result, she received radiation and chemotherapy treatment. In December 1986, Mrs. Holmes developed pulmonary involvement. On March 28, 1987, she died from metastatic breast carcinoma.

On November 15, 1988, appellant filed a medical malpractice action against appellee. Count I of appellant’s complaint alleged a cause of action for wrongful death. Count II of the complaint alleged a cause of action for survival. In each count, appellant alleged that appellee had been negligent in failing to properly examine the decedent regarding the lumps found in her right breast, failing to order a biopsy or other diagnostic studies regarding these lumps and failing to take the necessary steps to diagnose the lumps as a malignant tumor. On March 11, appellee made a motion for partial summary judgment with regard to Count II of appellant’s complaint, the survival action. Appellee contended that this action was barred by the applicable two-year statute of limitations. On May 1, 1991, the Court of Common Pleas of Schuylkill County granted appellee’s motion. This timely appeal followed.

Appellant’s sole contention is that the trial court erred in granting summary judgment on the survival action because a material issue of fact exists concerning when the decedent discovered the injury allegedly caused by the appellee. We disagree.

initially, we note that an order dismissing some but not all counts in a multi-count complaint is generally interlocutory and not immediately appealable. See Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983). See also Hardy v. Pennock Ins. Agency, Inc., 365 Pa.Super. 206, 529 A.2d 471 (1987); Cloverleaf Development, Inc. v. Horizon Financial F.A., 347 Pa.Super. 75, 500 A.2d 163 (1985). However, “[i]f the dismissed count states a cause of action that is separate and distinct from the remaining counts, the order dismissing that count is final and appeal-able; if the dismissed count merely states an alternative theory of recovery, the order dismissing it is interlocutory and not appealable.” Motheral v. Burkhart, 400 Pa.Super. 408, 416, 583 A.2d 1180, 1185 (1990); see also Praisner v. Stocker, supra, 313 Pa.Super. at 341, 459 A.2d at 1260. In the instant case, we find that the dismissed count alleging the survival cause of action is separate and distinct from appellant’s remaining count alleging a cause of action in wrongful death. Accordingly, we can proceed to the merits of appellant’s contention.

The legal standards which govern our review of a grant of a motion for summary judgment are well-settled. Under Pa.R.Civ.P. 1035(b), summary judgment is properly granted only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Id. In considering a motion for summary judgment, a court must examine the entire record in the light most favorable to the non-moving party, and the court is not to decide issues of fact, but merely determine if such issues exist, and to resolve all doubts in favor of the non-moving party. Citsay v. Reich, 380 Pa.Super. 366, 551 A.2d 1096 (1988); Mattia v. Employers Mutual Companies, 294 Pa.Super. 577, 440 A.2d 616 (1982); Ritmanich v. Jonnel Enterprises, Inc., 219 Pa.Super. 198, 280 A.2d 570 (1981). The party moving for summary judgment has the burden of proof. Barber v. Harleysville Mutual Ins. Co., 304 Pa.Super., 450 A.2d 718 (1982). Moreover, ordinarily, the question of whether the defense of statute of limitations applies, especially where there is at issue the diligence of the plaintiff in discovering injury, is a question of fact for the jury. Taylor v. Tukanowicz, 290 Pa.Super. 581, 586, 435 A.2d 181, 183 (1981). However, summary judgment based on the statute of limitations will be proper where a plaintiff fails to plead facts sufficient to toll the statute, or admits facts sufficient to concede the statute of limitations defense, or where the plaintiff fails in his response to show that a genuine issue of material fact exists or finally, where plaintiffs evidence is inherently unreliable. Id., 290 Pa.Superior Ct. at 586, 435 A.2d at 184.

The applicable statute of limitations for a survival action is two years. 42 Pa.C.S.A. § 5524(2). In determining when this period commences, the discovery rule is applied. Pastierik v. Duquesne Light Co., 514 Pa. 517, 526 A.2d 323 (1987) (citing Pocono Internat. Raceway v. Pocono Produce, Inc., 503 Pa. 80, 468 A.2d 468 (1983)). Under this rule, the statute of limitations does not begin to run until the complaining party knows or reasonably should have known of the existence of an injury to her. Citsay v. Reich, 380 Pa.Super. 366, 551 A.2d 1096 (citing Schaffer v. Larzelere, 410 Pa. 402, 189 A.2d 267 (1963)). In other words, “until one discovers, or through reasonable diligence should have discovered the alleged misdiagnosis or improper procedure employed by the physician, he or she does not have reason to know of the injury, and the running of the statute of limitations with respect to the personal injury cause of action will be delayed until the time of discovery, or the time when discovery became reasonably possible.” Citsay v. Reich, 380 Pa.Super. at 370, 551 A.2d at 1098 (citing Petri v. Smith, 307 Pa.Super. 261 453 A.2d 342 (1982); Acker v. Palena, 260 Pa.Super. 214, 393 A.2d 1230 (1978)).

The “knowledge” required of the victim/plaintiff in order to commence the statute of limitations has been defined by our courts as knowledge of: (1) his or her injury; (2) the operative cause of his or her injury; and (3) the causative relationship between his or her injury and the operative conduct. Citsay, supra (citing DeMartino v. Albert Einstein Medical Center, Northern Division, 313 Pa.Super. 492, 460 A.2d 295 (1983); Petri v. Smith, supra). However, while the victim/plaintiff must know of the causative relationship between her injury and the operative cause of action, she does not have to ascertain that the treating physician was negligent or that a legal cause of action exists. Anthony v. Koppers, Inc., 284 Pa.Super. 81, 425 A.2d 428 (1980) rev’d on other grounds, 496 Pa. 119, 436 A.2d 181 (1981). Furthermore, mere mistake or misunderstanding is insufficient to toll the statute of limitations for it is “the duty of the one asserting a cause of action against another to use all reasonable diligence to inform herself of the facts and circumstances upon which the right of recovery is based and to institute suit within the prescribed statutory period____” Taylor v. Tukanowicz, 290 Pa.Super. 581, 585, 435 A.2d 181, 183 (1981) (quoting Schaffer v. Larzelere, supra, 410 Pa. at 405, 189 A.2d at 267).

Applying the aforementioned standards to the instant case, we find that the appellant’s deposition testimony reveals that the decedent possessed the requisite degree of knowledge to commence the statute of limitations in August, 1985. It was then that Dr. Wahab informed Mr. and Mrs. Holmes that the mammograms taken by appellee could not detect cancer and that the only way to do so was to perform a biopsy. Until that time, both appellant and his wife believed that the mammograms detected cancer. When they learned otherwise, they began to wonder why appellee had never ordered a biopsy or suggested that one be performed. Furthermore, upon learning that the lumps in her breast were malignant, Mrs. Holmes formed a belief that had appellee ordered a biopsy or suggested she receive one earlier, she may have been able to avoid the mastectomy and chemotherapy. In his deposition, appellant stated:

We believed that the mammograms were the way to tell whether or not it was cancerous, but Doctor Wahab indicated that, to the best of my memory, that a biopsy was the only — the best — the only way to really tell. And so then she — we wondered why the biopsy hadn’t been ordered or hadn’t been suggested up to the point to have it checked. (Deposition of David J. Holmes, August 14, 1990, at 29.)
She never had anymore contact with Doctor Lado following that last visit when he referred her to Doctor Wahab. She was very upset that we heard that a biopsy was the best, the foolproof way of — whether it was cancerous and we wondered why a biopsy hadn’t been recommended or suggested sooner. Up to that point she liked Doctor Lado, she felt very comfortable with Doctor Lado and she trusted Doctor Lado. After hearing what Doctor Wahab said and having the surgery and she felt a little betrayed that maybe — she was very upset and felt that Doctor Wahab — or excuse me, I’m sorry, Doctor Lado should have at least suggested that and maybe if it would have been suggested, that would have been suggested sooner along with the mammogram maybe she could have prevented having her breast removed, maybe prevented having it found cancerous and having to go through the chemotherapy. {Id. at 30).
[W]e believed that after [the lump] was discovered in August of ’85 that that was malignant, that it was— possibility existed it may have been malignant in April of ’85 and that if a biopsy would have been performed, it may have indicated that rather than relying upon the mammograms. {Id. at 37).

As the deposition testimony indicates, in August, 1985, Mr. and Mrs. Holmes realized the injury to Mrs. Holmes, Stage III breast cancer, the potential operative cause, appellee’s alleged failure to order a biopsy or other diagnostic tests, and the relationship between the injury and the operative conduct. Accordingly, we find that there is no genuine issue of material fact as to when the limitations period on the survival action began. Thus, we affirm the lower court’s order granting summary judgment on Count II of appellant’s complaint.

Order affirmed.

      . Metastasis is the transfer of a disease such as cancer from one part or organ of the body to another. See The American Heritage Dictionary, Second College Edition.

      . In a survival action, the personal representative of the decedent is substituted for the decedent. The recovery obtained depends on the rights of action which the decedent possessed at the time of her death and, as in a personal injury action, amounts to the damages that the decedent herself sustained. See McClinton v. White, 285 Pa.Super. 271, 277, 427 A.2d 218, 221 (1981). On the other hand, in a wrongful death cause of action, recovery depends upon the rights of action that the beneficiaries, as named by statute, possess. Moreover, recovery amounts to the pecuniary loss suffered by the beneficiaries by being deprived of the part of the decedent’s earnings they would have received had the decedent lived. Manning v. Capelli, 270 Pa.Super. 207, 411 A.2d 252 (1979). Thus, a survival action seeks to compensate for different damages than does an action for wrongful death and as a result, is separate and distinct from a cause of action in wrongful death.

      . Appellant contends that the injury to Mrs. Holmes was not the breast cancer but the metastasis, the spreading of the cancer to other parts of her body, which she did not learn of until 1986. We disagree. Appellant in his complaint alleges that appellee was negligent in failing to properly examine Mrs. Holmes regarding the mass in her breast and failing to order the diagnostic tests necessary to diagnose the mass as a malignant tumor. All of these alleged wrongful acts pertain to the initial cancer and not to the later metastasis.


author: DEL SOLE, Judge:

text:
    603 A.2d 192
    Allen R. KRAMER and Clair Kramer, H/W, Appellants, v. STATE FARM FIRE AND CASUALTY INSURANCE COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Submitted Nov. 1, 1991.
    Filed Feb. 6, 1992.

      Stanley J. Brassington, Schuylkill Haven, for appellants.
    John W. Ashley, Allentown, for appellee.
    Before DEL SOLE, JOHNSON and HESTER, JJ.
   DEL SOLE, Judge:

This is an appeal from the trial court order sustaining Appellee State Farm Fire and Casualty Insurance Company’s Motion to Strike, which was filed as Preliminary Objections, in the nature of a demurrer. Finding no abuse of discretion nor error of law, we affirm.

Appellants Allen and Clair Kramer, husband and wife, owned a dwelling which was insured under a rental dwelling policy issued by Appellee State Farm. The policy specifically stated that “[n]o action shall be brought unless there has been compliance with the policy provisions and the action is started within one (1) year after the occurrence causing loss or damage.” On January 28, 1987, the Kramers sustained a fire loss on the insured property. They submitted a claim under the policy, which was subsequently denied by State Farm, on the basis that the Appellants themselves were responsible for the fire and had in fact committed arson. Appellants did not institute suit under the policy until February 22,1991, a period well in excess of the one year contractual statute of limitations. State Farm, in response to the commencement of suit, filed Preliminary Objections, raising the policy’s statute of limitations and alleging that Appellants had failed to state a claim upon which relief could be granted. Additionally, the insurer asserted that the trial court lacked jurisdiction over the insured’s claim under the Unfair Insurance Practices Act, and that the insured’s claim for “bad faith” against the insurer be stricken. The trial court sustained Appellee’s Preliminary Objections in the nature of a demurrer, holding that suit was barred by the policy’s one year statute of limitations and that violations of the Unfair Insurance Practices Act were not matters within its jurisdiction. Appellants’ claims for “bad faith” were also dismissed, and they brought this timely appeal.

Appellants first allege that the insurance policy’s one year statute of limitations does not bar the complaint in the instant case because Appellee-insurer acted fraudulently by inducing them to delay filing suit. Specifically, Appellants claim that the insurer’s allegation that the fire was caused by arson was an attempt to induce them to forego filing suit. It is well settled that a limitation on the time for bringing suit under an insurance contract is a contractual undertaking between the parties to the contract which is both valid and reasonable. Lardas v. Underwriters Insurance Company, 426 Pa. 47, 231 A.2d 740 (1967). Such contractual limitations periods may be waived, however, in cases in which the actions of the insurer lead the insured to believe the contractual period will not be enforced, General State Authority v. Planet Insurance Company, 464 Pa. 162, 346 A.2d 265 (1975), or where the insured’s failure to comply is induced by the actions of the insurer. Id., 464 Pa. at 165 n. 6, 346 A.2d at 267, n. 6.

In the instant case, there is no indication from the facts as they appear in the record that the insurer misled the Appellants about the possibility of settlement or induced Appellants to refrain from commencing suit. See Lardas v. Underwriters Insurance Company, 426 Pa. 47, 52, 231 A.2d 740, 742 (1967). It can hardly be said that State Farm’s assertion regarding why it refused to pay Appellants’ claim constituted a fraudulent communication or means of duress or coercion which forced Appellants to forbear bringing suit until after the limitations period had expired. Furthermore, State Farm advised Appellants of the one year limitations period for bringing suit in the same letter in which it advised them that it would not pay their claim and stating the reasons for its refusal. Therefore, we find no error on the part of the trial court in its ruling that no waiver of the limitations period occurred in the present case.

Appellants also contend that the trial court erred in refusing to allow them to amend their complaint in order to delete their claim under the Unfair Insurance Practices Act, and rephrase their complaint to include a claim for fraud and deceit, which would have been within the jurisdiction of the trial court. Causes of action under the Act are administrative in nature and therefore it was not an error for the trial court to conclude that the Insurance Commissioner was the appropriate authority to enforce the statute, and to grant Appellee’s Motion to Strike on the grounds that Appellants had failed to state a claim upon which relief could be granted. See Hardy v. Pennock Insurance Agency, Inc., 365 Pa.Super. 206, 529 A.2d 471 (1987).

In regard to Appellants’ claim that it was error for the trial court to refuse to allow them to amend their complaint so that the Court of Common Pleas would have jurisdiction, we find no abuse of the trial court’s discretion. Although liberal right of amendment is generally afforded all litigants, Dietrich Industries Inc. v. Abrams, 309 Pa.Super. 202, 455 A.2d 119 (1982), amendment which would introduce a new cause of action is not permitted after the statute of limitations on that claim has run against a defendant. Laursen v. General Hospital of Monroe County, 494 Pa. 238, 431 A.2d 237 (1981). In the instant matter, Appellants were barred from relief, irrespective of their choice of tribunal. Therefore, the trial court’s decision to refuse to grant Appellants’ request for leave to amend their complaint was correct.

Appellants’ final contention is that Pennsylvania law does recognize a claim for bad faith against an insurance company in addition to the statutory remedy provided by the Unfair Insurance Practices Act, and that therefore it was error for the trial court to grant Appellee’s Motion to Strike the claim for “bad faith.” Appellants cite D'Ambrosio v. Pennsylvania National Mutual Casualty Insurance Company, 494 Pa. 501, 431 A.2d 966 (1981), for the proposition that the limitations imposed on remedies which are supplemental to those provided for by statute pertain only to damages for “emotional distress” caused by an insurer’s “bad faith” conduct. Therefore, Appellants claim, their claim does not fall within this category and should not have been dismissed. We do not find this reading of D’Ambrosio to be persuasive. In Hardy v. Pennock Insurance Agency, Inc., 365 Pa.Super. 206, 529 A.2d 471 (1987), this court referred to its decision in Pekular v. Eich, 355 Pa.Super. 276, 513 A.2d 427 (1986), in which it clarified the holding in D’Ambrosio:

In D’Ambrosio, the Court expressly refused to supplement the UIPA with a judicially created cause of action which had never before been recognized by Pennsylvania courts. However, we do not read D’Ambrosio to preclude existing common law remedies such as fraud and deceit.

Pekular, 355 Pa.Superior at 284, 513 A.2d at 431. Thus, it is clear that while existing common law causes of action for fraud and deceit are permitted in addition to the statutory remedy pf the Unfair Insurance Practices Act, no direct cause of action for “bad faith” on the part of an insurer exists in Pennsylvania. Therefore, it was not error for the trial court to grant Appellee’s Motion to Strike that portion of Appellants’ complaint and we accordingly affirm the order sustaining Appellee’s Preliminary Objections.

Order affirmed.


author:
HOFFMAN, Judge:
      JOHNSON, Judge,

text:
    603 A.2d 194
    Christine SCHUBACK v. Michael SCHUBACK, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 3, 1991.
    Filed Feb. 12, 1992.

      Albert B. Mackarey, Scranton, for appellant.
    Sandra A. Sernak, Scranton, for appellee.
    Before WIEAND, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the decree of the Court of Common Pleas of Lackawanna County declaring appellant, Michael Schuback, and appellee, Christine Schuback, divorced, adopting the recommendation and report of the master and adopting as the property settlement the stipulation entered into by the parties. Appellant contends that (1) the divorce, based on the grounds of indignities, is invalid because appellee did not qualify as an innocent and injured spouse, and (2) the stipulation is not legally binding because he was under the influence of alcohol when it was created. For the following reasons, we affirm.

On April 18, 1989, appellee, Christine Schuback, filed a complaint in divorce pursuant to § 201(c) (mutual consent) and § 201(a)(6) (indignities) of the Divorce Code, 23 P.S. § 101 et seq. Hearings were held before a master on April 2, June 1, and August 14,1990. At the hearings, testimony was taken and the parties entered into a stipulation as to the equitable distribution of the marital property. At the conclusion of the hearings, the master filed a report in which he determined as a matter of law that the testimony at the hearings established a pattern of behavior evidencing settled hatred and estrangement sufficient to constitute indignities under § 201(a)(6) of the Divorce Code. Appellant, Michael Schuback, filed exceptions to the master’s report on November 30, 1990 on the grounds that the master was in error in determining distribution of marital property and in finding that a divorce based on indignities was warranted. The trial court denied the exceptions, adopted the master’s report and the stipulation entered into by the parties, and decreed the parties divorced. This timely appeal followed.

The standard of review of a divorce decree is well-settled: [I]t is the responsibility of this court to make a de novo evaluation of the record of the proceedings and to decide independently of the master and lower court whether a legal cause of action in divorce exists. The Master’s recommendation, therefore, is advisory only. The exception to this general rule is that in determining issues of credibility the Master’s findings must be given the fullest consideration for it was the Master who observed and heard the testimony and demeanor of various witnesses.

Dukmen v. Dukmen, 278 Pa.Super. 530, 534, 420 A.2d 667, 670 (1980) (citations omitted). See Keller v. Keller, 275 Pa.Super. 573, 419 A.2d 49 (1979) (on appeal from divorce decree, this court must make an independent review of the record); Boniewicz v. Boniewicz, 266 Pa.Super. 210, 403 A.2d 999 (1979) (Superior Court must make independent review of the record to determine whether there exists a cause of action in divorce).

Section 3301(a)(6) of the Divorce Code states that where one spouse has offered indignities to the person of the innocent and injured spouse as to render that spouse’s condition intolerable and life burdensome, then the court may grant the innocent and injured spouse a divorce. 23 Pa.C.S.A. § 3301(a)(6). Thus, there are two requirements for a divorce based on indignities: (1) the existence of indignities and (2) the direction of them to an innocent and injured spouse. Appellant does not refute the existence of indignities. Appellant contends, however, that the divorce based on the grounds of indignities is invalid because appellee had not proven the second requirement, that she was an innocent and injured spouse. Specifically, appellant argues that, at the hearings before the master, testimony was elicited from appellee and a Mr. Ziemba which indicated that appellee was engaged in an adulterous affair with Mr. Ziemba during her marriage to appellant. Such conduct, appellant argues, shows a course of conduct of hatred towards appellant and effectively precludes appellee from being considered an innocent and injured spouse. We disagree.

A party does not lose her status as an innocent and injured spouse merely because she is not wholly free from fault. Beaver v. Beaver, 313 Pa.Super. 512, 460 A.2d 305 (1983). See also Bonawitz v. Bonawitz, 246 Pa.Super. 257, 369 A.2d 1310 (1976). Even if the party moving for a divorce on the grounds of indignities engages in an adulterous affair, she may still maintain her status as an innocent and injured spouse if her adulterous conduct occurred after the right to a divorce on the grounds of indignities had accrued. Gross v. Gross, 281 Pa.Super. 45, 421 A.2d 1139 (1980). See Ryave v. Ryave, 249 Pa.Super. 78, 375 A.2d 766 (1977) (if adultery occurred after the right to a divorce accrued, then the adultery is not grounds to deny the divorce).

In the instant case, appellee testified that she and appellant began to live separate and apart in 1986 and that she began seeing a Mr. Ziemba in 1987. (N.T., 8/14/90, at 15, 20.) She testified, however, that no sexual relations occurred between herself and Mr. Ziemba until after she filed for a divorce in 1989. (Id. at 21.) When appellant called Mr. Ziemba to testify, his testimony fully supported appellee’s and was unrebutted by appellant. The only other evidence of an adulterous affair offered by appellant was appellee’s diary/date book for the periods of 1988 and 1989. In the book were cryptic notes inferring a relationship with Mr. Ziemba during this time. All of the aforementioned evidence indicates a relationship between appellee and Mr. Ziemba dating back as far as 1987. Yet the indignities committed against appellee, leading to the separation in 1986 and becoming the basis for the divorce, date back to 1978. Therefore, even if we were to find that the evidence presented was sufficient to show that appellee and Mr. Ziemba were engaged in an adulterous affair, appellant’s status as an innocent and injured spouse would not change because the right to a divorce on the grounds of indignities had already accrued. Accordingly, we find that both of the requirements for a divorce on the grounds of indignities have been met, and the divorce decree is valid.

Appellant next contends that the the stipulation pertaining to equitable distribution of the marital property is not legally binding because he was under the influence of alcohol when he entered into the stipulation. This contention is waived.

Rule 1920.55 of the Rules of Civil Procedure states: (a) Within ten days after notice of the filing of the master’s report has been mailed, exceptions may be filed by any party to the report or any part thereof, to ruling on objections to evidence, to statements or findings of fact, to conclusions of law, or to any other matters occurring during the hearing. Each exception shall set forth a separate objection precisely and without discussion. Matters not covered by exceptions are deemed waived unless, prior to entry of the final decree, leave is granted to file exceptions raising those matters.

Id. (emphasis added). Here, appellant had only filed exceptions pertaining to the master’s authority to administer over the distribution of the marital property and to the grounds for the divorce, but did not allege that the stipulation into which the parties entered was not binding because he was under the influence. Furthermore, appellant did not request leave to amend his objections to include this contention prior to the entry of the final decree. Accordingly, we will not consider this contention for the first time on appeal. “Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a).

Decree affirmed.

JOHNSON, J., files a Concurring Statement.

JOHNSON, Judge,

concurring:

I concur in the result reached by the majority. I write separately to note that the sole issue preserved for review in this straight-forward, submitted case was whether the wife was an innocent and injured spouse. The majority correctly determined that wife’s status as an injured and innocent spouse, once accrued, would allow the grant of a divorce decree based upon indignities. Hence, the necessity to address the specific allegations regarding wife’s behavior, subsequent to the date that her status as an innocent and injured spouse accrued, is not present. Since I would affirm the decree issued by the trial court on March 12, 1991, I concur in the result.

      . Title 23 Pa.S.A. § 101 et seq. has been repealed. The Divorce Code may now be found at 23 Pa.C.S.A. § 3101 et seq., which applies retroactively to this case. See 23 Pa.C.S.A. § 3101 and the Historical and Statutory Notes following.

      . The master did not determine whether the requirements for a mutual consent divorce pursuant to § 201(c) of the Divorce Code were met.

      . At the hearing before the master, appellee testified that beginning in 1978, after the birth of their second child, appellant set out on a course of conduct which included frequenting taverns nightly, drinking excessively and arriving and leaving their home at all different times (N.T., 8/14/90, at 4-8); calling appellee obscene names and humiliating her in front of others (Id. at 11-14); showing no compassion towards her when she was physically ill and no interest in her or their children. (Id. at 10-12); and engaging in a clandestine relationship with another woman. (Id. at 18). Despite the serious ramifications of appellee’s testimony, appellant did not rebut appellee’s accusations. Most notably, appellant admitted his excessive drinking and verbal abuse throughout this period. (Id. at 43-44).

      . We note that even if appellant had not waived this issue, it is completely meritless. A review of the notes of testimony reveal that the master had asked over thirty questions pertaining to whether the parties understood the stipulation and the its ramifications and that appellant had answered that he understood. Even though appellant answered in the affirmative when asked if he was under the influence of alcohol, when the master questioned him, appellant responded that he had had a few drinks the night before but none that day and that those drinks were not in any way affecting his judgment. (N.T., 6/1/90, at 18-19). Furthermore, the master noted no signs of intoxication. {Id. at 19).


author: JOHNSON, Judge:

text:
    603 A.2d 197
    COMMONWEALTH of Pennsylvania, Appellant, v. Maxine READING.
    Superior Court of Pennsylvania.
    Argued Dec. 4, 1991.
    Filed Feb. 10, 1992.

      Hugh Burns, Jr., Asst. Dist. Atty., Philadelphia, for Com., appellant.
    Thomas R. Quinn, Philadelphia, for appellee.
    Before WIEAND, JOHNSON and HOFFMAN, JJ.
   JOHNSON, Judge:

The Commonwealth appeals from the judgment of sentence entered against Maxine Reading on February 19, 1991. We vacate the judgment of sentence and remand for resentencing.

On July 15, 1990, Edward Plummer left the apartment in which he resided with Maxine Reading at 10:00 p.m. and returned at approximately 3:00 a.m. When he returned, Plummer asked Reading if she feared being alone. Reading responded that she had not been frightened because she could have protected herself with Plummer’s .38 caliber revolver which he kept under his pillow. Reading then took the revolver from underneath the pillow to demonstrate to Plummer that she knew how to use it. While showing Plummer the revolver, Reading heard a pop which sounded like a firecracker. Plummer turned around, walked out of the bedroom and fell down. Realizing that she had shot Plummer, Reading ran downstairs to the landlord and asked him to call the police. Later that morning, Plummer died as a result of a single gunshot wound to the chest.

Reading was arrested and charged with Murder, Voluntary Manslaughter, Involuntary Manslaughter and Possession of an Instrument of Crime. She waived a jury trial and was found guilty of Involuntary Manslaughter and acquitted of Possessing an Instrument of a Crime. At the sentencing hearing, the court stated that the standard range under the guidelines for Involuntary Manslaughter with a prior record score of zero was zero to twelve months. The prosecutor agreed, but argued that the deadly weapon enhancement provision of the sentencing guidelines, 204 Pa.Code § 303.4(a) applied, making the standard range 12-36 months. The court rejected the Commonwealth’s contention, refused to apply the weapon enhancement provision and sentenced Reading to a term of five years’ probation conditioned upon her continuing to attend counseling. On February 27, 1991, the Commonwealth filed a Motion to Reconsider Sentence which was denied.

On appeal, the Commonwealth contends 1) that the sentencing court erred in failing to apply the deadly weapon enhancement provision of the sentencing guidelines when it determined the guideline ranges applicable to Reading’s Involuntary Manslaughter conviction; 2) that the sentencing court erred in failing to state specific reasons for deviating from the guidelines; and 3) that the court erred in imposing a more lenient sentence on the ground that the homicide was “accidental” after specifically stating at trial that the “gun cannot go off accidentally,” and that it did not “think th[e] case [was] an accident.” N.T., November 15, 1990, at 212, 220.

After careful consideration of the relevant statutes and caselaw, we are constrained to vacate appellant’s sentence for Involuntary Manslaughter. We do so in response to the Commonwealth’s first issue and the sentencing court’s refusal to apply the deadly weapon enhancement provision of the sentencing code. Based upon our disposition of the first issue, we need not consider the Commonwealth’s second issue, however, to provide guidance on remand, we will address the Commonwealth’s third issue.

Initially, we note that the Commonwealth appeals the discretionary aspects of the sentence. See, Commonwealth v. Jones, 523 Pa. 138, 565 A.2d 732 (1989); 42 Pa.C.S. § 9781(b). In order for the reviewing court to examine the sentence, appellant must present a substantial question. Pa.R.A.P. 2119(f); Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). The definition of a substantial question is found in Commonwealth v. Losch, 369 Pa.Super. 192, 535 A.2d 115 (1987). The definition states that appellant must advance a colorable argument that the sentence is inconsistent with the sentencing code, or that the sentence violates a fundamental norm underlying the sentencing process. As we find the appearance of a substantial question presented by the Commonwealth on appeal, this Court grants allowance of appeal from the discretionary aspects of the sentence imposed upon Reading. See Commonwealth v. Dotzman, 403 Pa.Super. 325, 588 A.2d 1312 (1991) (substantial question raised as to whether sentence is appropriate under the sentencing guidelines where trial court held inapplicable the provisions of 204 Pa.Code § 303.4).

In reviewing a judgment of sentence, we may remand where the trial court erroneously failed to consider the deadly weapon enhancement provision of the guidelines. Commonwealth v. Johnakin, 348 Pa.Super. 432, 502 A.2d 620 (1985). Sentencing Guidelines, 204 Pa.Code § 303.4, reprinted following 42 Pa.C.S. § 9721, provides:

§ 303.4. Deadly weapon enhancement

(a) When the court determines that the defendant possessed a deadly weapon, as defined in 18 Pa.C.S.A. § 2301 (relating to definitions), during the commission of the current conviction offense; at least 12 months and up to 24 months confinement shall be added to the guideline sentence range which would otherwise have been applicable (emphasis added).

The court below believed that § 303.4 should not apply on the basis of its conclusion that Reading did not “possess a deadly weapon” within the meaning of the section. The court held that the .38 revolver which killed the victim was not a “deadly weapon,” because Reading did not specifically intend to kill with it.

In its Opinion, the trial court stated:
A plain reading of Section 2301 shows that for a firearm to constitute a deadly weapon, the weapon must have been used or intended to be used in a manner calculated or likely to produce death or serious bodily injury----
Accordingly, Section 2301 requires proof of a certain intent in the use of a firearm before a sentencing court may apply the deadly weapon enhancement provision.

Opinion, May 24, 1991, at page 8.

We disagree with the court's interpretation of Section 2301. Deadly weapon is defined at 18 Pa.C.S. § 2301 as follows:

Deadly weapon . — Any firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death or serious bodily injury, or any other device or instrumentality which, in the manner in which it is used or intended to be used, is calculated or likely to produce death or serious bodily injury (emphasis added).

A plain reading of the statute reveals that any firearm is a deadly weapon, without regard to the mental state of the defendant who has been convicted of criminal homicide. We find no support for the contention that the deadly weapon enhancement provision of the sentencing guidelines is inapplicable to Involuntary Manslaughter convictions, nor has Reading directed us to any such authority.

Here, the facts are undisputed. Reading, in an act of “total recklessness,” pulled the trigger while showing Plummer that she knew how to use his gun. N.T., November 15, 1990, at 221. Clearly, the court was required to apply the deadly weapon enhancement when calculating the guideline range applicable to Reading’s Involuntary Manslaughter conviction. Commonwealth v. Cornish, 403 Pa.Super. 492, 589 A.2d 718 (1991).

We have repeatedly held that it is imperative that the sentencing court determine the correct starting point in the guidelines before sentencing outside those guidelines. Johnakin, 348 Pa.Super. at 438, 502 A.2d at 623. In this case, the trial court determined the minimum sentence range under the guidelines based on the incorrect conclusion that it was not required to consider the weapon enhancement provision. Accordingly, Reading’s sentence must be vacated and the case remanded for resentencing after consideration of the appropriate guidelines, including the deadly weapon enhancement provision. See Cornish, 403 Pa.Super. at 497, 589 A.2d at 721. If the court then finds it appropriate to deviate from the guidelines, it must place its reasons for the deviation on the record. Id.

Next, we address the Commonwealth’s contention that the trial court’s verdict and the trial court’s statements of record concerning the nature of the crime cannot be reconciled with the court’s basis for imposing a more lenient sentence. Specifically, the Commonwealth argues that at trial, the court expressly rejected Reading’s “accidental shooting” theory of defense, while in its Opinion the court refers to the shooting as “accidental.” At trial, the court addressed Reading’s claim that the gun had been fired accidentally as follows:

[The court]: This gun did not go off by itself. The only way this gun goes off is if somebody pulls the trigger.

N.T., November 15, 1990, at 210-211.

When defense counsel argued that Reading had claimed the shooting was accidental, the court responded:

[The Court]: I know, but we can’t take her word for it ... you have to use the rules of logic, physics ... I mean, this gun cannot go off accidentally.

Id. at 212.

The court concluded:

[The Court]: I don’t think this case is an accident, I really don’t. I think that when she said, I knew something stupid was going to happen, what she meant was that she should not have pulled the trigger. I do. But I don’t think she meant to kill him. But kill him she did.

Id. at 220.

The trial court acknowledged the possibility that the failure to apply the deadly weapon enhancement provision might be held erroneous, and therefore attempted to provide for this situation by including its reasons for deviating from the guidelines. Opinion, May 24, 1991, at 9. The court explained that it would have imposed the same probationary sentence, even had it determined that the deadly weapon enhancement provision was applicable for the following reasons:

Ms. Reading, age thirty-three, had no prior record. Moreover, the death in this case resulted from an accidental shooting of her long time companion while she was showing him that she knew how to use his gun.

Opinion, May 24, 1991, at 9-10 (emphasis added).

Initially, we note that an anticipatory statement such as this made by the trial court does not preclude remand. Johnakin, 348 Pa.Super. at 438, 502 A.2d at 623.

The Commonwealth implies that the sentencing court’s use of the word “accidental” of its Opinion was an attempt to change the original verdict in order to justify a more lenient sentence. Opinion, May 23, 1991, at 9. Assuming that the trial court was attempting to enter a verdict different than that which it entered on November 15, 1990, we would be compelled to reject any such alteration. An attempt to modify or explain, at this late stage, an already clear verdict must be ineffective. Commonwealth v. Samuels, 235 Pa.Super. 192, 340 A.2d 880 (1975); Commonwealth v. Dunn, 478 Pa. 35, 385 A.2d 1299 (1978). We are not convinced, however, that the court’s mention of “accidental” in its Opinion was an attempt to modify its original verdict. Rather, when read in the context of the trial court’s complete Opinion, it is clear that the trial court merely concluded that the shooting was not intentional. This finding is entirely consistent with Reading’s conviction and may be considered by the sentencing court upon remand.

Based upon the foregoing, Judgment of Sentence is vacated and the case is remanded so that the sentencing court may resentence in accordance with this decision. Jurisdiction is relinquished.


author: ROWLEY, President Judge;

text:
    603 A.2d 201
    Rosemary MERMAN v. Thomas MERMAN, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 3, 1991.
    Filed Jan. 14, 1992.

      Susan E. Murray, Media, for appellant.
    Elaine Smith, Philadelphia, for appellee.
    Before ROWLEY, President Judge, and WIEAND and JOHNSON, JJ.
   ROWLEY, President Judge;

Thomas Merman (“Father”) appeals from the order entered March 25, 1991 in the Court of Common Pleas of Philadelphia County in this custody action. Father alleges that the trial court erred in failing to exercise jurisdiction in this matter. Although Father concedes that both Pennsylvania and New Jersey had jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJA), Father claims that Pennsylvania was the more appropriate forum for adjudication. Therefore, Father asserts that the trial court abused its discretion in finding that New Jersey was the more appropriate forum, as New Jersey was not the “home state” and did not have “maximum significant contacts.” Having thoroughly reviewed the record and considered the arguments of the parties, we now affirm the order.

The factual and procedural history of this case is as follows: Father and Rosemary Merman (“Mother”) were married in Pennsylvania in 1979. On December 21, 1989, Mother filed for divorce in the Court of Common Pleas of Philadelphia County, Family Division. In March of 1990, Mother and the two minor children, Thomas and Adrianna, moved to Sewell, New Jersey. Father filed an answer to the divorce complaint in April, 1990 in the Philadelphia County court. Father raised the issue of child custody for the first time when he filed this answer, and Mother responded in the Philadelphia court with her own complaint for custody on April 23, 1990. The trial court entered a temporary order on June 12, 1990 pursuant to a custody conference between Father and Mother. The temporary order granted Mother primary custody and Father partial custody.

On January 9, 1991, Mother filed a Protection From Abuse action in Gloucester County, New Jersey, on behalf of the children. The New Jersey court entered a temporary order granting Mother full custody and staying Father’s visitation rights.

In the Pennsylvania divorce and custody action, the Honorable Vito F. Canuso presided over a pre-trial conference on January 28, 1991. At this time, Mother informed the court that New Jersey had assumed jurisdiction. On January 30,1991, Mother filed a petition to suspend the Pennsylvania court’s partial custody order and to transfer jurisdiction to New Jersey.

On February 1, 1991 the New Jersey court entered an emergency order granting Father limited visitation rights with his daughter and precluding visitation between Father and his son.

A hearing was held in the Philadelphia County court on March 8, 1991 in response to Mother’s petition to suspend partial custody and to transfer jurisdiction to New Jersey. Pursuant to this hearing, Judge Canuso entered the following order:

AND NOW, this 25th day of March, 1991, following oral argument and after consideration of the briefs filed by counsel and a review of the record, we find that this court has jurisdiction of the custody matter now before it concerning the children, THOMAS AND ADRIANNA MERMAN.
However, since the initiation of proceedings and entry of a Temporary Order by this Court, on June 12, 1990, mother and children moved to New Jersey where they presently reside. Subsequently, mother has filed an action in New Jersey, under the Prevention of Domestic Violence Act and Orders have been entered by that Court dealing with the issue of custody and which have, in effect, stayed and superceded [sic] our Temporary Order. Under these circumstances and also finding that substantial evidence concerning the present and future care, protection, training and personal relationships of the children are readily available there, we find that the State of New Jersey is a more appropriate forum pursuant to the factors as outlined under the Uniform Child Custody Jurisdiction Act, 42 Pa.C.S., Section 5438.
Accordingly, upon motion of counsel for Plaintiff, Rosemary Merman, it is hereby ORDERED that the above custody proceedings are STAYED upon condition that a custody proceeding be promptly commenced in the Superi- or Court of New Jersey, Chancery Division-Family Part, Gloucester County.

It is from this order that Father timely appeals.

When reviewing a trial court’s decision not to exercise jurisdiction under the terms of the UCCJA, we will not reverse the trial court’s decision unless the court abused its discretion. Joselit v. Joselit, 375 Pa.Super. 203, 544 A.2d 59 (1988). Our review of the record reveals that the trial court did not abuse its discretion in determining that New Jersey was the more appropriate forum for custody proceedings.

Both Pennsylvania and New Jersey have adopted the Uniform Child Custody Jurisdiction Act. In Pennsylvania, the UCCJA permits the exercise of jurisdiction if:

(1) This Commonwealth:
(i) is the home state of the child at the time of commencement of the proceeding; or
(ii) had been the home state of the child within six months before commencement of the proceeding and the child is absent from this Commonwealth because of his removal or retention by a person claiming his custody or for other reasons and a parent or person acting as his parent continues to live in this Commonwealth;

23 Pa.C.S.A. § 5344(a). Home state, for purposes of the UCCJA, is defined as “the state in which the child immediately preceding the time involved lived with his parents, a parent or a person acting as parent, or in an institution, for at least six (6) consecutive months ...” 23 Pa.C.S.A. § 5343. The UCCJA definition of home state is used solely to determine whether a specific state can assert jurisdiction under the theory that it is the home state. As Pennsylvania had been the home state of the children within six months prior to Father filing for custody, Pennsylvania was permitted to exercise jurisdiction.

Father claims that the trial court erred in deferring to New Jersey because the home state is generally given preference in jurisdictional disputes. Hattoum v. Hattoum, 295 Pa.Super. 169, 175, 441 A.2d 403, 405 (1982). However, we note that in certain circumstances a trial court may determine that the home state is not the most appropriate forum. Id., 295 Pa.Superior Ct. at 175, 441 A.2d at 406. Therefore, as Pennsylvania was the home state as defined under the UCCJA, we must determine whether the trial court abused its discretion in deciding that New Jersey would be the more appropriate and convenient forum under the UCCJA.

Although Pennsylvania was the home state for jurisdictional purposes under the UCCJA, the home state jurisdictional basis does not preclude another state from having jurisdiction under another subsection of the UCCJA. As noted above, Father concedes that New Jersey has jurisdiction under the UCCJA. When jurisdiction exists in two states, only one state can properly adjudicate. Hattoum v. Hattoum, supra, 295 Pa.Superior Ct. at 175, 441 A.2d at 406. If two states have jurisdiction under the UCCJA, one state may defer its valid jurisdiction to another forum under 23 Pa.C.S.A. § 5348(e), which states:

(e) Disposition. — If the court finds that it is an inconvenient forum and that a court of another state is a more appropriate forum, it may dismiss the proceedings, or it may stay the proceedings upon condition that a custody proceeding be promptly commenced in another named state or upon any other conditions which may be just and proper, including the condition that a moving party stipulate his consent and submission to the jurisdiction of the other forum.

Therefore, the court may properly determine that in some circumstances the home jurisdiction is not the most appropriate forum. Hattoum v. Hattoum, supra, 295 Pa.Superior Ct. at 175, 441 A.2d at 406. The UCCJA enumerates some of the factors that a trial court can consider in deciding whether to defer jurisdiction to another forum:

(c) Factors to be considered. — In determining if it is an inconvenient forum, the court shall consider if it is in the interest of the child that another state assume jurisdiction. For this purpose, it may take into account the following factors, among others:
(1) If another state is or recently was the home state of the child.
(2) If another state has a closer connection with the child and his family or with the child and one or more of the contestants.
(3) If substantial evidence concerning the present or future care, protection, training and personal relationships of the child is more readily available in another state.
(4) If the parties have agreed on another forum which is no less appropriate.
(5) If the exercise of jurisdiction by a court of this Commonwealth would contravene any of the purposes stated in section 5342 (relating to purposes and construction of subchapter).

23 Pa.C.S.A. § 5348(c).

The language of the trial court opinion indicates that the trial court stayed proceedings on the basis of § 5348(c)(3). The record supports the trial court’s determination that New Jersey was the more appropriate forum even though it was not the home state as defined under the UCCJA. As the trial court did not abuse its discretion, we will not disturb its decision.

Father further alleges that New Jersey’s jurisdiction was not compelling enough to warrant the transfer of jurisdiction from Pennsylvania to New Jersey under the maximum significant contacts theory of 23 Pa.C.S.A. § 5344(a)(2). This argument lacks merit. The maximum significant contacts theory is used to determine whether a particular forum actually has jurisdiction. As both parties conceded that New Jersey has jurisdiction, the maximum significant contacts theory does not apply to the issue before us. Our only basis for review is whether the trial court in Philadelphia County erred in refusing to exercise jurisdiction in this matter. See Carpenter v. Carpenter, 326 Pa.Super. 570, 577, 474 A.2d 1124, 1128 (1984). As stated previously, when two forums have jurisdiction, one forum can defer jurisdiction to the other forum under 23 Pa.C.S.A. § 5348. The trial court was permitted to stay proceedings on the basis that Pennsylvania was an inconvenient forum. Accordingly, our Court will not disturb the trial court’s determination absent an abuse of discretion.

A thorough and comprehensive review of the record shows that the trial court considered all relevant factors in reaching its determination that New Jersey was the more appropriate forum for the custody dispute. Accordingly, we affirm the trial court’s order.

Order affirmed.

      . Appellant’s brief at 10; Trial court opinion at 3.

      . See 23 Pa.C.S.A. § 5341 et seq. and N.J.S.A. 2A:34-28 et seq.

      . See 23 Pa.C.S.A. § 5341 et seq. and N.J.S.A. 2A:34-28 et seq. We note, however, that the UCCJA "is not a ‘reciprocal’ law and is in full operation in each state regardless of its enactment in other states.” Hattoum v. Hattoum, 295 Pa.Super. 169, 174, 441 A.2d 403, 405 (1982).

      . When Judge Canuso stated that “New Jersey is presently the home state of the children ...,” he was not using it as a basis for New Jersey’s jurisdiction. (Trial court opinion at 3.) The jurisdictional issue had already been conceded. Rather, Judge Canuso was acknowledging that he had considered the fact that the children presently lived in New Jersey and intended to remain there indefinitely in making his determination that New Jersey was the most appropriate forum.

      . Although both parties conceded jurisdiction and we do not have to determine whether New Jersey’s exercise of jurisdiction was proper, we note that other bases for jurisdiction exist under the UCCJA. A court that is not the home jurisdiction may exercise jurisdiction if:
      (2)(i) the child and his parents, or the child and at least one contestant, have a significant connection with (the state); and
      (ii) there is available in (the state) substantial evidence concerning the present or future care, protection, training, and personal relationships of the child.
      23 Pa.C.S.A. § 5344(a)(2). A court may also exercise jurisdiction in exigent circumstances, such as when abuse is alleged. 23 Pa.C.S.A. § 5344(a)(3)(h). New Jersey presumably exercised jurisdiction under one of these subsections as codified in N.J.S.A. 2A:34-29.

      . The trial court stated in its opinion that "substantial evidence concerning the present and future care, protection, training and personal relationships of the children was more readily available (in New Jersey).” (Trial court opinion at 3.)

      . As support for his argument, Father refers to our Court’s decision in Barndt v. Barndt, 397 Pa.Super. 321, 580 A.2d 320 (1990). Appellant claims that relinquishing jurisdiction to New Jersey would thwart the purposes of the UCCJA, which was created to prevent forum shopping and other abuses. However, our determination in Bamdt did not turn on whether maximum significant contacts existed. Rather, Bamdt required the application of federal law in light of improper actions by the non-custodial parent. We find it important to note that Mother moved the children to New Jersey prior to the commencement of custody proceedings, the children were properly in Mother’s custody at the time she moved, and there is nothing on the record to indicate that Mother had any improper motives. Accordingly, we can distinguish this matter from our decision in Bamdt without defeating the underlying principles of the UCCJA.


author: OLSZEWSKI, Judge:

text:
    603 A.2d 205
    In re NEW 12TH WARD REPUBLICAN CLUB. Appeal of NEW 12TH WARD REPUBLICAN CLUB.
    Superior Court of Pennsylvania.
    Submitted Oct. 28, 1991.
    Filed Feb. 11, 1992.

      Robert P. Vincler, Pittsburgh, for appellant.
    Dan Fitzsimmons, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before OLSZEWSKI, JOHNSON and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

This is an appeal from the order of the Court of Common Pleas of Allegheny County dated April 18, 1991, denying appellant’s petition for return of property. Since we find no merit to appellant’s argument, we affirm the order of the trial court. A discussion of the case follows.

The Pennsylvania State Police were involved in an investigation of appellant, New 12th Ward Republican Club, for selling alcoholic beverages at hours prohibited by the liquor code. 47 P.S. Section 4-493(16). Specifically, appellant was being investigated for serving alcoholic beverages between the hours of 3:00 a.m. and 7:00 a.m. in violation of 47 P.S. Section 4-406. On February 9, 1991, pursuant to the State Police investigation, a search warrant was executed at the premises operated by appellant and various alcoholic beverages and equipment were seized. The equipment seized included various pieces of furniture, several cash registers, a surveillance camera and monitor, and an intercom speaker.

Appellant filed a petition for return of the equipment seized on March 28,1991. After an evidentiary hearing the trial court entered an order denying the petition on April 18, 1991. From this order appellant filed this timely appeal. The Commonwealth subsequently filed a petition for forfeiture of the property seized. It appears from the record that this petition has not been decided.

Initially, we will discuss the appealability of the order in question. The order appealed from deals only with the denial of appellant’s petition for return of property pursuant to Pa.R.Crim.P. 324.

... [A] final appealable order is one which ends the litigation or disposes of the entire case. An order will also be treated as final if the practical consequence is, in effect, to put an appellant out of court, or if it precludes an appellant from presenting the merits of the claim to the lower court.

Grossman v. Commissioner of Police, 318 Pa.Super. 584, 588, 465 A.2d 1007, 1010 (1983) (citations omitted). In this case the order denying appellant’s petition for return of property is final. While there may be further litigation surrounding the Commonwealth’s petition for forfeiture, it is quite clear that appellant now has no right to return of the property. The lower court has effectively decided that appellant has no rights in the property, and, therefore, the litigation is final as to appellant.

An additional procedural matter before the Court is the Commonwealth’s motion to transfer this appeal to Commonwealth Court. It is denied. The Commonwealth has argued in its motion to transfer that this is a matter interpreting the liquor code and should, therefore, be decided by Commonwealth Court. The Commonwealth is mistaken. This matter is simply an appeal of a trial court order denying a petition for return of property under Pa. R.Crim.P. 324. Although the underlying offense supporting the search warrant involved the liquor code, our decision here does not. Having disposed of these procedural matters, we will address the merits of this appeal.

Appellant's only argument on appeal is whether the lower court abused its discretion in denying the petition for return of property. Appellant’s entire argument is that the trial court abused its discretion by reaching a decision which is against the weight of the evidence. Appellant argues that the trial court ignored the fact that appellant had leased the equipment in question from one Ms. Adams, and, therefore, the items should be returned to appellant. We do not entirely understand appellant’s argument. If Ms. Adams leased the property to appellant without knowledge of appellant’s illegal activities, then Ms. Adams should be requesting the return of her property. We do not see how appellant has standing to make an argument that the leased property should be returned to Ms. Adams. Further, in making such an argument, appellant admits that it was using the property illegally. Clearly the property should not be returned to appellant. Regardless of this standing issue, we find no merit to appellant’s argument that the trial court’s decision is against the weight of the evidence.

The decision to grant a new trial based on a challenge to the weight of the evidence is within the sound discretion of the trial court. Thompson v. City of Philadelphia, 507 Pa. 592, 598, 493 A.2d 669, 672 (1985); Common wealth v. Murray, 408 Pa.Super. 435, 597 A.2d 111 (1991). It is well established that where a jury’s verdict is so contrary to the evidence as to shock one’s sense of justice, then an award of new trial on the basis that the verdict is against the weight of the evidence is appropriate. Commonwealth v. Whitney, 511 Pa. 232, 512 A.2d 1152, 1155-1156, (1986); Murray, 408 Pa.Super. at 439, 597 A.2d at 113. The trial court, however, does not have unfettered discretion in its decision to grant a new trial based on a challenge to the weight of the evidence. An appellate court may review this decision to determine if there has been an abuse of discretion, but may not substitute its judgment for that of the lower court. Thompson, 507 Pa. at 599, 493 A.2d at 673; Murray, 408 Pa.Superior Ct. at 440, 597 A.2d at 114.

With this as our standard of review, we have reviewed the evidence presented to the lower court and find that the decision of the lower court was not against the weight of the evidence. It was within the province of the trier of fact to reject appellant’s claim that the property in question was leased from an innocent third party. The evidence presented indicated that Ms. Adams was the wife of the club’s maitre’d. The trial court’s opinion makes it clear the court rejected appellant’s contentions below that the equipment seized was the subject of an equipment lease. Decisions regarding the credibility of testimony are within the province of the trier of fact and will not be disturbed upon a cold review of the record. We find no abuse of discretion in the trial court’s decision, and, therefore, we will not disturb the decision of the trial court.

Since we find no merit to appellant’s argument, the decision of the trial court is affirmed.

Motion to transfer to Commonwealth Court denied. Order affirmed.

      . This Court is uncertain as to why the Commonwealth did not bring a petition for forfeiture earlier in this matter so that it might be disposed at the same time as the petition for return of property.

      . In Commonwealth v. Murray, 408 Pa.Super. 435, 597 A.2d 111 (1991), this Court affirmed its right and duty to review a trial court’s refusal to grant a new trial on the basis that the verdict is against the weight of the evidence. Contra Commonwealth v. Murray, (Olszewski, J., dissenting) (appellate review of weight of the evidence challenges is at variance with the fact-finding province of the jury and not properly the subject of appellate review).