author:
OLSZEWSKI, Judge. CIRILLO, Judge,
      KELLY, Judge,

text:
    636 A.2d 637
    COMMONWEALTH of Pennsylvania, Appellant, v. Kenneth PLASS, Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 8, 1993.
    Filed Jan. 4, 1994.
    Petition for Allowance of Appeal Granted May 18, 1994.

      James R. Gilmore, Asst. Dist. Atty., Pittsburgh, for Commonwealth, appellant.
    James R. Wilson, Asst. Public Defender, Pittsburgh, for appellee.
    Before ROWLEY, President Judge, and McEWEN, CIRILLO, OLSZEWSKI, DEL SOLE, BECK, TAMILIA, KELLY and JOHNSON, JJ.

       See No. 127 Judicial Administration Docket No. 1.

   OLSZEWSKI, Judge.

The question before this Court en banc is a narrow one: When a defendant is sentenced for a drug offense involving more than 2.0 but less than 10.0 grams of cocaine, should the enhanced mandatory minimum apply if he was convicted of a prior drug trafficking offense before being sentenced, but after the commission of the principal offense? After carefully reviewing the parties’ briefs and arguments, we are convinced that the sentence enhancement applies in this case.

On May 28, 1992, a jury convicted Kenneth Plass of possession and possession with intent to deliver cocaine, an offense he committed on June 13, 1991 [“the second offense”]. Sentencing occurred on the same day as the trial. At sentencing, Plass stipulated that he was convicted of a drug trafficking offense, possession with intent to deliver marijuana [“the first offense”], on December 12, 1991 [“the first conviction”]. The first offense occurred on April 4, 1991. As a result, it is evident that Plass committed the first offense before, but was convicted and sentenced after, he perpetrated the second offense. Furthermore, it is clear that the first conviction was final on the date that Plass was sentenced for the second offense.

The trial court refused the Commonwealth’s request to apply the mandatory minimum sentence of two years incarceration and a $10,000 fine under 18 Pa.C.S.A. § 7508(a)(3)(i), reasoning that since the first conviction did not occur before the second offense, an enhancement was improper. The Commonwealth appeals this refusal and asks us to determine whether the trial court erred in failing to consider the marijuana offense a prior conviction for purposes of this recidivist provision.

I.

Our Crimes Code provides:

(3) A person who is convicted of violating section 13(a)(14), (30) or (37) of The Controlled Substance, Drug, Device and Cosmetic Act where the controlled substance is [cocaine], shall be sentenced to a mandatory term of imprisonment and fine as set forth in this subsection:
(i) when the aggregate weight of the ... substance involved is at least 2.0 grams and less than ten grams; one year in prison and a fine of $5,000 or such larger amount as is sufficient to exhaust the assets utilized and the proceeds from the illegal activity; however, if at the time of sentencing the defendant has been convicted of another drag trafficking offense: three years in prison and a fine of $10,000 or such larger amount as is sufficient to exhaust the assets utilized in and proceeds from the illegal activity[.]

18 Pa.C.S.A. § 7508(a)(3)(i) (emphasis added). The Commonwealth argues that since “at the time of sentencing” Plass had been “convicted of another drug trafficking offense,” the marijuana offense, the trial court was required to impose the enhanced sentence. We agree.

Up to this point, no court has discussed the particular interpretation of this statute which concerns us here. We are therefore guided by the Statutory Construction Act, 1 Pa. C.S.A. § 1901 et seq., and must construe the statute in light of its plain language. Id., § 1903. Moreover, “[w]hen determining the meaning of any particular recidivist statute or section, it is the language of that statute or section, and no other, which must be interpreted or applied.” Commonwealth v. Gonzales, 415 Pa.Super. 564, 574, 609 A.2d 1368, 1373 (1992). Here, the language of § 7508(a)(3)(i) is unambiguous. “If at the time of sentencing, the defendant has been convicted of another drug trafficking offense,” the enhancement provisions apply. The legislature has defined “conviction” as it is used in this section:

Previous conviction. — For purposes of this section, it shall be deemed that a defendant has been convicted of another drug trafficking offense when the defendant has been convicted of another offense under section 13(a)(14), (30), or (37) of The Controlled Substance, Drug, Device and Cosmetic Act, or of a similar offense under any statute of any state of the United States, whether or not judgment of sentence has been imposed concerning that offense.

18 Pa.C.S.A. § 7508(a.l). Since the parties do not dispute that the marijuana first offense is “another offense” under the Controlled Substance, Drug, and Device, and Cosmetic Act which would trigger the recidivist provision in § 7508(a)(3)(i), and that “at the time of sentencing” for the current offense he was convicted of the first offense, we simply fail to see, under a plain reading of the statute, how the enhancement was inapplicable.

Plass argues that since the definitional section of “conviction” does not include a temporal element, the statute is ambiguous regarding when the conviction must have occurred for the enhancement to apply. In the absence of such a provision, Plass maintains that we must interpret the statute consistent with other recidivist statutes which embody the traditional notion that a conviction for a previous offense must have occurred prior to the commission of the second offense before a sentence enhancement may be imposed. See generally, Commonwealth v. Dickerson, 533 Pa. 294, 621 A.2d 990 (1993); Commonwealth v. Beatty, 411 Pa.Super. 450, 601 A.2d 1253 (1992) (en banc), alloc. granted, 531 Pa. 644, 612 A.2d 983 (1992); Commonwealth v. Mourar, 349 Pa.Super. 583, 504 A.2d 197 (1986) vacated on other grounds, 517 Pa. 83, 534 A.2d 1050 (1987). We have no quarrel with this philosophy. Our sedulous review of the relevant caselaw and this particular statute, however, convinces us that the legislature did not adopt the traditional rule when drafting the recidivist provision under scrutiny here.

If one thread can be said to tie the many controversies surrounding this Commonwealth’s recidivist statutes, it is from which point a sentencing judge must “look back” to determine whether a previous conviction can be used to enhance an offender’s sentence. In Commonwealth v. Dickerson, supra, the dispute involved an interpretation of our Commonwealth’s general recidivist statute, 42 Pa.C.S.A. § 9714, which covers persons who commit murder, involuntary manslaughter, rape, and other serious felonies. That statute provides for an enhanced sentence when the person has “previously been convicted of a crime of violence” as delineated in subsection (b). 42 Pa.C.S.A. § 9714(a). Subsection (b) defines the temporal element, or “look back” provision, of a “previous conviction” as follows:

(2) The previous conviction occurred within seven years of the date of the commission of the instant offense, except that any time during which the offender was incarcerated in any penitentiary, prison, or other place of detention shall not be considered in computing the relevant seven-year period.

Id., § 9714(b)(2) (emphasis added). Dickerson committed two rapes on the same day and was subsequently convicted of both. The question was then whether the enhancement provision should apply, since the Commonwealth contended that the “previous” rape conviction occurred within seven years of the second offense, albeit within seven years after the commission of the offense.

Our Supreme Court rejected this interpretation:

The dispute arises because the legislature apparently did not consider the anomaly posed by appellee’s criminal behavior. In cases of recidivism, we expect the following sequence of events: first offense, first conviction, first sentencing, second offense, second conviction, second sentencing. In such a situation, the legislature provided that the mandatory minimum sentence would be imposed at the second sentencing if the first conviction occurred within seven years prior to the commission of the second offense. If the first conviction occurred more than seven years before the second offense, the legislature did not consider the criminal sufficiently blameworthy to merit an enhanced minimum sentence. The sequence of events in this case, however, was: first offense, second offense, first conviction, first sentencing, second conviction, second sentencing. We hold that in this sequence, the mandatory minimum sentencing statute does not apply because the first conviction did not occur within seven years prior to the commission of the second offense.

Id., 533 Pa. at 298-299, 621 A.2d at 992. The Supreme Court, in reaching this result, concluded that the legislature adopted the traditional recidivist policy by express language; the Court thus considered the starting point provided by the statute, “the date of the second offense,” and “looked back” to determine whether defendant had previously been conviction for the first offense.

In Commonwealth v. Beatty, supra, we interpreted the Motor Vehicle Code’s recidivist provision. Beatty, as did Plass here and Dickerson above, committed an offense which was not reduced to conviction before he repeated his criminal conduct. When he was sentenced on the repeat offense, however, the conviction was final. The statute under the Motor Vehicle Code provides for enhancements if a person has “violated” the DUI statute and has “previously been convicted” of another DUI offense. 75 Pa.C.S.A. § 3731(e). The trial court determined that since Beatty had been convicted of the previous offense at the time of sentencing, the enhancement provisions applied.

We held that the “look back” period in the Code’s recidivist statute contemplates a “present violation [the date of the second offense] and a prior conviction [the first conviction].” Beatty, supra, 411 Pa.Super. at 454, 601 A.2d at 1255 (quoting Commonwealth v. Kimmel, 523 Pa. 107, 111, 565 A.2d 426, 428 (1989)). In other words, the legislature anchored the “look back” period by using the terms “violation” and “previous conviction” to determine whether the DUI offender is a recidivist deserving enhanced punishment. Accord, Commonwealth v. Tobin, 411 Pa.Super. 460, 601 A.2d 1258 (1992), aff'd, 533 Pa. 322, 623 A.2d 814 (1993). By looking back from the time of sentence, rather than the time of the commission of the second offense, the trial court in Beatty ignored the legislature’s intended starting point and frustrated the express statutory language.

Finally, in Commonwealth v. Eyster, 401 Pa.Super. 477, 585 A.2d 1027 (1991), alloc. denied, 529 Pa. 646, 602 A.2d 857 (1992), this Court was faced with the question of whether convictions which occur after the commission of a principal offense, but before sentencing on that offense, may be considered for purposes of defining a defendant’s prior record score under the sentencing guidelines. The sentencing guidelines applicable in Eyster provide that a “prior conviction” for purposes of a prior record score must be consistent with our legislature’s stated purpose behind enhancements under the guidelines:

... The guidelines shall:
* * * * * *
(2) specify a range of sentences of increased severity for defendants previously convicted of or adjudicated delinquent for one or more misdemeanor or felony offenses committed prior to the current offense.

42 Pa.C.S.A. § 2154 (emphasis added).

Thus, it is abundantly clear that under the guidelines the legislature adopted the traditional recidivist theory “that recidivist legislation attempts to encourage offenders to stay out of trouble and punishes recidivists who refuse to be deterred even after a conviction.” Eyster, supra, 401 Pa.Super. at 485, 585 A.2d at 1031. The express statutory language allows no other result. Accord, Dickerson, supra, 533 Pa. at 300-301, 621 A.2d at 993.

What distinguishes the recidivist statute in this case from those in Dickerson, Beatty, and Eyster, however, is the legislature’s inclusion-of one simple phrase: “[I]f, at the time of sentencing, the defendant has committed another drug trafficking offense ...” 18 Pa.C.S.A. § 7508(a)(3)®. This language could not make it more clear that the relevant “look back” period begins at the time of sentencing. Moreover, if we were to adopt Plass’s construction of the term “previous conviction” by including the condition that it occur previous in time to the second offense, we would render superfluous the phrase “at the time of sentencing,” as used in the body of the statute. We must, however, construe a statute as to give effect to all of its provisions. 1 Pa.C.S.A. § 1921(a).

Also, as we noted above and in the many cases interpreting recidivist statutes, the traditional policy behind recidivist legislation is to “punish more severely those offenders who have persevered in criminal activity despite the theoretically beneficial effects of penal discipline.” Dickerson, supra, 533, Pa. at 299, 621 A.2d at 992 (citing Commonwealth v. Wolfe, 349 Pa.Super. 415, 503 A.2d 435 (1986), appeal dismissed, 517 Pa. 406, 537 A.2d 1370 (1988)). Neither law nor logic, however, requires the legislature to adopt this rationale for every sentence-enhancing statute. See Commonwealth v. Gonzales, supra (recidivist statute, providing that any person who has committed a firearms offense who has previously been convicted of murder at any time shall be sentenced to life imprisonment, does not require first conviction to precede second offense). Here, the legislature has expressly utilized the date of sentencing as the “look back” date for purposes of determining whether a sentence enhancement is required. We cannot question the plain words of the statute in an effort to enforce the spirit embodied in traditional recidivist legislation. 1 Pa.C.S.A. § 1921(b).

We must therefore vacate the judgment of sentence as imposed by the trial court and remand this case for imposition of sentence in accord with the sentence enhancement provided by 18 Pa.C.S.A. § 7508(a)(3)(i).

II.

Plass contends that the enhanced sentencing scheme established by § 7508(a)(3) (i) violates the equal protection clause of the United States Constitution. In explaining this claim, Plass posits a hypothetical in which two offenders commit the same drug trafficking crimes, but because they are sentenced for their crimes in reverse order, they receive different treatment under the statute. This, he claims, violates equal protection because the difference in result is not rationally related to the purpose of the statute. We find this argument disingenuous.

The classification established by the statute singles out drug offenders who have been convicted of a previous drug offense at the time of sentencing on the principal offense. This class is neither “suspect” — it has not been traditionally oppressed or discriminated against — nor is the classification designed to deprive the class of any fundamental right. Commonwealth v. Eicher, 413 Pa.Super. 235, 605 A.2d 337 (1992), alloc. denied, 533 Pa. 598, 617 A.2d 1272 (1992); see Common wealth v. Wildermuth, 347 Pa.Super. 640, 501 A.2d 258 (1985) (mandatory sentencing law which classifies offender based on relative ages of victims not a suspect class). The classification will therefore survive equal protection scrutiny so long as it is not arbitrary and “rests upon some ground of difference having a fair and substantial relation to the object of the legislation so that all persons in similar circumstances shall be treated alike.” Commonwealth v. Chmiel, 416 Pa.Super. 235, 242, 610 A.2d 1058, 1061 (1992), alloc. denied, 535 Pa. 613, 629 A.2d 1376 (1993) (quoting Moyer v. Phillips, 462 Pa. 395, 400-401, 341 A.2d 441, 443 (1975)).

Here, there is no question that § 7508, which provides tougher sentences for convicted drug offenders, is designed “to alleviate the ravages of drug trafficking and drug abuse in our society by subjecting convicted drug dealers to greater periods of confinement.” Eicher, supra, 413 Pa.Super. at 266, 605 A.2d at 352. In Eicher, we rejected an equal protection challenge to § 7508 in the context of classifying an offender based on the weight of drugs involved in the offense. Id. Here, the claim is somewhat different, that is, Plass contends by establishing a “look back” period which focuses on the date of sentencing, the legislature inadvertently allowed for a defendant’s sentence to be determined not only by the severity of his crime, but also by administrative delay. He contends that prosecutors will abuse the “look back” period by delaying sentencing if an offender is near conviction on another drug offense.

We reject this argument. First, the legislature’s goal, imposing harsher sentences for repeat offenders, is clearly served by establishing a scheme which takes any previous offenses, whenever they occur, into account. Moreover, merely because § 7508 does not fit the traditional recidivist scheme as explained by our Supreme Court in Dickerson, supra, does not render it unconstitutional. Quite simply, the legislature has determined that deterrence and outright incapacitation of repeat offenders will better serve the societal interest in “alleviating] the ravages of drug trafficking” than does the traditional rehabilitative purpose of other recidivist legislation. The date of conviction for the first offense, under this view, is insignificant. Thus, § 7508 is reasonably designed to effectuate the purpose it seeks to achieve.

Second, we are unpersuaded that potential disparate treatment caused by administrative delay renders the statute unconstitutional. We have stated:

[I]t is impossible to provide a sentencing code which covers every possible contingency that may arise in sentencing. It is better for consistency and uniformity of interpretation to be applied across the board for the vast majority of cases while a few defendants in infrequent cases receive a benefit, than to create a cumbersome, confusing and error prone system which breeds continued litigation.

Eyster, supra, 401 Pa.Super. at 488, 585 A.2d at 1033. Here the enhanced sentencing provisions of § 7508 are easy to administer, and treat alike all defendants who at the time of sentencing have been convicted of a previous drug offense. The statute could not be more clear in intent or application; it is designed to incapacitate the drug offenders who infect our Commonwealth’s communities. If, in an isolated case, the Commonwealth’s conduct has caused imposition of an unfairly harsh sentence, the defendant may seek appropriate remedies by alleging and proving, among other things, prosecutorial misconduct.

The judgment of sentence is vacated. Case remanded to the trial court for imposition of sentence in accordance with this opinion. Jurisdiction relinquished.

CIRILLO, J., concurs and dissents.

KELLY, J., dissents, in which JOHNSON, J., joins.

CIRILLO, Judge,

concurring and dissenting.

I respectfully concur and dissent for the reasons set forth in my Concurring and Dissenting Opinion in Commonwealth v. Williams, 431 Pa.Super. 167, 636 A.2d 183 (1993).

KELLY, Judge,

dissenting.

Respectfully, I dissent based upon the statutory analysis, espoused in Commonwealth v. Dickerson, 533 Pa. 294, 621 A.2d 990 (1993); Commonwealth v. Beatty, 411 Pa.Super. 450, 601 A.2d 1253 (1992) (en banc), alloc. granted, 531 Pa. 644, 612 A.2d 983 (1992); Commonwealth v. Eyster, 401 Pa.Super. 477, 585 A.2d 1027 (1991), appeal denied, 529 Pa. 646, 602 A.2d 857 (1992), that a “previous conviction” must have occurred prior to the commission of a later offense before a “previous conviction” can be used to enhance the offender’s sentence for the later offense.

JOHNSON, J., joins.

      . For a clearer picture of the chronology of events, they may be chronicled as follows:
      (1) April 4, 1991 — first offense committed
      (2) June 13, 1991 — The second offense committed
      (3) December 12, 1991 — first conviction and sentencing
      (4) May 28, 1992 — second conviction and sentencing.


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    636 A.2d 642
    Carl R. BURNS and Nancy Burns, His Wife v. CONSOL PENNSYLVANIA COAL COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued June 24, 1993.
    Filed Jan. 11, 1994.

      Wesley A. Cramer, Washington, for appellant.
    David C. Hook, Waynesburg, for appellees.
    Before OLSZEWSKI, HOFFMAN and BROSKY, JJ.
   OLSZEWSKI, Judge:

This is an appeal from an order enjoining appellant Consol Pennsylvania Coal Company [“Consol”] from mining coal under four tracts of land owned by appellees, Carl and Nancy Burns [“the Burns”]. The dispute in this case boils down to whether the Pennsylvania Bituminous Mine Subsidence and Land Conservation Act, 52 Pa.S.A. § 1406.1, et seq. [hereinafter “the Subsidence Act” or “the Act”], requires Consol to include on a map its support plan for an undeveloped tract of land which is owed the right to support. The trial court held that Consol must indicate such support and issued the injunction pending Consol’s compliance by filing an amended map with the Pennsylvania Department of Environmental Resources [“DER”]. It is from this order that Consol appeals and we affirm in part and remand with instructions.

It is undisputed that the Burns own, insofar as it is relevant here, two tracts of land. A dwelling sits on one tract, and the other is undeveloped. Consol owns the coal which underlies each tract, as this coal is part of the larger “Pittsburgh Seam” of bituminous coal, owned and controlled by Consol. The vital “third estate” to both tracts, the right to support, is owned by the Burns. Although Consol at one time negotiated with the Burns to obtain the support estate, which would have given it the right to subside the land, these negotiations were unsuccessful. Consol therefore properly concedes that it owes the Burns the absolute duty to protect their surface land from subsiding.

The Subsidence Act (which we will discuss in more detail later) provides certain surface structures, such as the Burns’ dwelling, with protection from subsidence regardless of whether the owner of the property owns the support estate. Albig v. Municipal Authority of Westmoreland Co., 348 Pa.Super. 505, 502 A.2d 658 (1985). Under the Act, it is incumbent upon the coal company which seeks to mine coal from areas under these protected structures to apply to DER for a permit. 52 Pa.S.A. § 1406.5. In doing so, the coal company must file a map with DER which fully details its mining plan and shows, among other things, the boundaries of the area of surface land and the location and/or designation of all structures in place on the effective date of the Act which overlie the proposed mine. 52 Pa.S.A. § 1406.5. The plan must also set forth a detailed description of the manner in which the structures overlying the mine will be supported. Id. The maps are also subject to any further requirements promulgated by DER, id., must be filed with the Recorder of Deeds in the county which the mine is located, and must be updated at least once every six months. Id. at § 1406.8.

On or about September 15, 1992, apparently noticing that Consol’s miners were approaching their property, the Burns went to the Recorder of Deeds in Greene County. They noticed that the most recent map of record was dated December 30, 1991, and it indicated that Consol intended to fully mine under both parcels of land. The Burns immediately filed an action in the court of common pleas requesting a temporary restraining order, claiming that Consol had not properly updated its map. Moreover, the Burns claimed that Consol was required to indicate in its map how it intended to support their home and their undeveloped land. The restraining order issued, and in its defense at the hearing on a preliminary injunction, Consol claimed that although their updated map was not on file with the Recorder of Deeds, DER had already approved it. Although Consol offered no explanation why the map was not at the Recorder’s office, its counsel brought a copy of the map to the hearing and argued that it properly showed the support it intended to provide for the Burns’ dwelling. Consol also claimed that since the undeveloped tract is not specifically protected by the Subsidence Act, it was not required to indicate how it intended to support that land.

The trial court held that Consol is indeed required to show support for the Burns’ vacant property on its map. It also held that the parties did not present sufficient evidence to determine whether Consol’s proposed support for the Burns’ surface structure was adequate under DER regulations. The Honorable H. Terry Grimes therefore entered an order which: (1) preliminarily enjoined Consol from mining under the Burns’ property and (2) compelled Consol to amend its map to indicate its support plan for the Burns’ vacant property. Judge Grimes deferred decision on the issue of whether the support for the Burns’ dwelling was in compliance with DER regulations. This appeal followed and we affirm in part and remand with instructions.

I.

A.

Consol contends first that the court of common pleas did not have jurisdiction to issue the injunction because the Act vests exclusive jurisdiction with DER. Consol also contends, alternatively, that the Burns were required to exhaust their administrative remedies before applying to the trial court for an injunction. We disagree with both of these arguments.

It is abundantly clear from the plain language of the statute that jurisdiction to enforce the Act’s provisions is not vested exclusively with DER. It provides:

Commonwealth Court and the courts of common pleas shall have the power to award injunctions to prevent violations of this act and to otherwise provide for its enforcement ... upon suit of any property owner affected by such bituminous coal mining without the necessity of posting bond on application for a permanent injunction, but a bond may be required on the granting of a temporary restraining order.

52 Pa.S.A. § 1406.13(a) (emphasis added). Although the application for permits and the right to promulgate rules to effectuate the Act’s purposes is a matter which the Act contemplates to be within DER’s “exclusive” jurisdiction, see § 1406.7, the mere existence of § 1406.13(a) indicates that the power to enforce the Act is distributed among DER, Commonwealth Court, and the courts of common pleas.

The doctrine of exhaustion of administrative remedies, on the other hand, “is founded on judicial recognition of the mandate of the legislature that statutorily prescribed remedies are to be strictly pursued.” Ohio Casualty Group v. Argonaut Ins. Inc., 514 Pa. 430, 435, 525 A.2d 1195, 1197 (1987). Our Supreme Court has held that although the Subsidence Act provides comprehensive administrative remedies with DER, “[i]t is apparent that where the Legislature desired to provide an exclusive administrative remedy within the Act it did so explicitly.” DeLuca v. Buckeye Coal Co., 463 Pa. 513, 345 A.2d 637 (1975). Although the statute clearly gives a landowner the right to pursue a hearing in front of DER’s Environmental Hearing Board, there is nothing in the language of the statute which makes this pursuance a condition precedent to seeking injunctive relief before a court of common pleas. To the contrary, we are required to interpret the statute broadly to ensure that all landowners and other affected persons receive the intended benefit of the Act. 52 Pa.S.A. § 1406.19. The Burns were not required to exhaust their administrative remedies before seeking injunctive relief in the court of common pleas.

B.

The tenor of Consol’s argument, that DER is the proper body to address the Burns’ complaints regarding the sufficiency of the maps, is appealing. That is, by focusing on exclusive jurisdiction (or jurisdiction that is dependent on previous DER involvement), Consol effectively asks us to divest the courts of common pleas of all power if a landowner does appeal to DER first. Accepting this proposition would effectively strip the court of common pleas of its equity power, and hence, the power of contempt. We held above that this is not the intent of the statute and we would be wary of divesting the courts of this power absent a clear legislative intent to do so. We do recognize, however, that DER has the experience and sophistication to meaningfully regulate the bituminous mining industry in accord with the policies espoused by the Subsidence Act. The legislature, moreover, did vest DER with substantial power to promulgate and adopt rules that serve the Act’s purpose. It also provided the DER Environmental Quality Board -with the power to adopt emergency regulations which amount .to “legislative oversight.” 52 Pa. S.A. § 1406.18. We now hold, therefore, that DER has primary jurisdiction to entertain landowners’ complaints regarding coal companies’ specific compliance with regulations promulgated under the Act.

The doctrine of primary jurisdiction applies where the administrative agency cannot provide a complete means of redress to the complaining individual, “and yet the dispute involves issues that are clearly best resolved in the first instance by the administrative agency charged with regulating the subject matter of the dispute.” Ostrov v. I.F.T., Inc., 402 Pa.Super. 87, 95, 586 A.2d 409, 413 (1991). Our Supreme Court has recognized that, in reality, both the courts and the administrative agencies play important roles in the adjudication of certain matters.

To accommodate the role of the court with that of the agency, the doctrine of primary jurisdiction (or primary exclusive jurisdiction) has been developed. Essentially, the doctrine creates a workable relationship between the courts and administrative agencies, wherein, in appropriate circumstances, the courts can have the benefit of the agency’s views on issues within the agency’s competence.

Elkin v. Bell Telephone Co., 491 Pa. 123, 131-32, 420 A.2d 371, 376 (1980).

This doctrine has distinct application here because the issues at hand involve both an interpretation of the Act and DER’s expertise. On one hand, the court of common pleas is perfectly capable of determining whether Consol’s maps are recorded and updated within the time prescribed by the Act. On the other, questions of whether the maps are in technical compliance with DER’s regulations require the expertise of trained professionals employed for that specific purpose. DER is far better equipped to handle these questions. In such a case, the better course is for the court of common pleas to stay the action before it until the administrative body makes a ruling. Id. at 133, 420 A.2d at 377.

The trial court therefore properly issued an injunction based on the map’s absence from the Recorder of Deeds. Without its presence, Consol would be mining in direct violation of the Act, since maps must be filed at least ten days before any mining occurs under the areas represented by the maps. The trial court should not have determined whether Consol is required to show its support for the vacant Burns property on its map. Nor should it endeavor to determine whether the maps are in technical compliance with BER’s regulations regarding support. Since these latter questions involve DER’s expertise, we feel that DER should address them in the first instance.

II.

Consol argues next that it is not required, under the Act, to show support for the Burns’ vacant parcel of property on its map. Consol argues that the Act was intended to provide a right of support to structures only, not vacant lands. Thus, it would follow that the maps required by the Act need not indicate how Consol intends to support the vacant land. Con-sol argues that this is so despite its acknowledgment that it owes the Burns a duty to support that land as a matter of general property law. For the reasons that follow, we will require the trial court to defer resolution of this issue to DER.

We note first that the trial court decided this issue in the affirmative, holding that DER’s regulations specifically require that a mining company represent on its map all boundaries of its mining activities. Trial court opinion at 3 (citing 24 Pa.Code § 89.142(b)(5)). The trial court reasoned that since Consol is required to show all of the areas within its mining operation where it will not mine, it must necessarily include the coal under the Burns’ vacant land. This reasoning, sound as it is, rests on the erroneous assumption that the Burns own the coal under their property. They do not. They own only the support rights. The trial court wrote:

In the present case, it is undisputed that the mining map filed with the Recorder of Deeds did not contain an exclusion from the mining activity from the coal underlying the Burns [vacant] tract, coal which is not owned nor controlled by Consol.
The only aid which a landowner who owns coal beneath their property, or is guaranteed subsidence protection thereunder, may have is the mine plan filed of public record. To accept Consol’s argument that they must only indicate areas which they must support but need not indicate areas not owned by them nor subject to mining is contrary to any logical explanation.

Trial court opinion, at 3.

While we agree with this reasoning it is inapplicable here because Consol does control the coal under the Burns’ property. Moreover, Consol offers a perfectly logical explanation regarding why it is not required to indicate the manner of support for the Burns’ vacant land: neither the Subsidence Act nor its concomitant regulations require it to do so. Since the trial court’s analysis is inapposite here, we must address this issue on a clean slate.

As we alluded earlier, the Subsidence Act grants owners of certain surface structures (including dwellings such as the Burns’ here) the absolute right to support from mine subsidence, regardless of whether the structure owner owns the support estate. 52 Fa.S.A. § 1406.4; DeLuca, supra.

The Act was established to (1) conserve land area (2) protect the public (3) enhance the value of surface lands (4) aid in providing surface water drainage and public water supplies (5) improve the use and enjoyment of surface lands and (6) maintain primary jurisdiction [over surface coal mining in Pennsylvania].

Culp v. Consol Pennsylvania Coal Co., 96 Pa.Commw. 94, 100, 506 A.2d 985, 988 (1986). Our legislature has identified seven enumerated policies which underlie the passage of the Act, including pronouncements that “[t]he protection of surface structures and better land utilization are of utmost importance to Pennsylvania,” 52 Pa.S.A. § 1406.3(1), and “[t]he prevention of damage from mine subsidence is recognized as being related to the economic well-being of Pennsylvania.” Id. at § 1406.3(3).

A coal mine may not open unless it is granted a permit upon application to DER. Id. at § 1406.5. Such application necessarily includes a map which designates all areas which the company intends to mine. Id.

Such map or plan shall show the boundaries of the area of surface land overlying the mine or mining operation, the location and/or designation of all structures in place on the effective date of this act which overlie the proposed mine or mining operation, the name of the record owner of such surface structures, the location of all bodies of water, rivers and streams, roads and railroads, and the political subdivision and county in which said structures are located. Such map or plan shall include, in addition to the information specified above, such information on the character of the mining operation, overburden, rock strata, proximity of and conditions in overlying or underlying coal seams and other geological conditions as the department, by rules and regulations, shall direct. The department shall have the power to require the updating of such maps from time to time as it shall prescribe by rule and regulation. The map or plan must set forth a detailed description of the manner, if any, by which the applicant proposes to support the surface structures overlying the bituminous mine or mining operation.

Id. (Emphasis added.) Noticeably absent from this language is any requirement that the map or plan indicate how it intends to support vacant lands which overlie the mine. Section 1406.8 of the Act, which describes these maps more thoroughly, is equally silent: “Such maps or plans shall show in detail all contemplated workings which are intended to be undertaken or developed within the succeeding six months and shall show, distinctively and in detail, all supports, artificial and otherwise, to be provided in accordance with the permit.” Id. (Emphasis added.) As we just recited at length, a coal company’s mine plan need not, as a matter of necessity, show its support for vacant lands before a permit will issue.

Nonetheless, it seems anomalous that the legislature has made a broad declaration that the protection of surface lands is vital to the economy of Pennsylvania, yet when those lands are entitled to support as a matter of law, there is no requirement that the coal company include that support on its map. Indeed, the maps must show “all contemplated workings” under surface lands, id., and the coal company is required to notify all owners of surface lands of its operations and the locations of their certified maps, id. at § 1406.10. This section was presumably intended to give a landowner the chance to assure himself that his lands, if entitled to it, receive support. A requirement that a coal company show how it intends to support vacant lands which are entitled to support, therefore, would be well within the purpose of the Act. It should not matter, furthermore, from where the duty of support arose. But, alas, a plain reading of the statute provides no such requirement. It is a fundamental tenet of statutory construction, moreover, that we have no power to insert a requirement into a statute that is not there. Worley v. Augustine, 310 Pa.Super. 178, 456 A.2d 558 (1983). We simply cannot hold, as a matter of statutory interpretation, that the Act requires Consol to include its manner of support for vacant lands on the map, even though it seems that such a requirement is eminently reasonable.

Thus it is that we shall defer this matter to DER. The Act is clear that DER has the power to enact regulations “as shall be necessary to protect the ... land resources of the Commonwealth” and “to enable it to carry out the purposes and provisions of this act, including additional requirements for providing maps, plans, and public hearings.” 52 Pa.S.A. § 1406.7. Moreover, DER is vested with a quasi-legislative jurisdiction which enables it to enact legislation which appears to have been overlooked by the Act. Finally, and perhaps more simply, the department has reserved to itself the option to require of a coal company to include in its map any “other information as requested in accordance with the policies and procedures of the department.” 25 Pa.Code § 89.142(b)(7). In other words, despite any specific requirement under the words of the Act, it is abundantly clear that Consol could be required to show the support for the Burns land on its map. Were we to merely interpret the Act and hold that under no circumstances is Consol required to show this support, we would not only usurp DER’s broad enforcement power (which is not limited to the plain words of the Act), but we would also frustrate the balance of administrative and judicial duties that the legislature sought to achieve in the first place.

We therefore hold that although the Act contains no requirement that Consol indicate its manner of support for the Burns’ vacant property, such a requirement is well within the scope of the Act. This matter should therefore be deferred to DER which, upon application of the Burns, shall determine whether Consol should be required to include this information on its map.

III.

Finally, Consol contends the injunction was improperly is: sued because the Burns suffered no harm. Consol argues that its assurances at the hearing on the prehminary injunction, that it would not mine under the Burns’ property, render any appreciable harm purely speculative. We disagree.

We will allow a preliminary injunction to stand if there are any. appreciable grounds for the trial court’s action. Coatesville Development Co. v. United Food Workers, 374 Pa.Super. 330, 542 A.2d 1380 (1988). Here, the harm the Burns complained of was plain — Consol was mining -without having first recorded a certified map with the Greene County Recorder of Deeds. Although Consol argued that the map was certified and filed, it was not in the Recorder’s possession. Since the Subsidence Act is designed to protect landowners of surface structures entitled to support, such as the Burns, it is Consol who must bear the burden of the map’s absence. If it mines under the Burns’ property without a map on file, it is in violation of the Act. The trial court has the appropriate means, injunction power, to compel compliance.

The Burns also contend that their property is subject to potential subsidence based on Consol’s failure to indicate how it intends to support their vacant property. Although we have already indicated that this matter should be deferred to DER, we find that an injunction prohibiting Consol from proceeding in the vicinity of the Burns’ property pending the outcome of the DER appeal is appropriate. Once DER has heard the matter and Consol has filed maps which comply with the DER’s findings, the injunction shall be dissolved.

IV.

We therefore affirm the trial court’s order insofar as it enjoins Consol from mining under the Burns’ property. DER shall, upon Burns’ application, determine whether Consol is required to show its manner of support for the Burns’ vacant lot. DER shall also determine whether Consol’s map shows proper support for the Burns’ dwelling. Once the DER proceedings are final and the Greene County Court of Common Pleas is satisfied that Consol’s maps are certified and properly filed with the Recorder of Deeds, the injunction shall be dissolved.

Jurisdiction is relinquished.

      . Consol made a belated attempt, at oral argument and in its reply brief to this Court, to argue that the injunction should be vacated because the trial court did not require the Burns to post bond. Although we recognize that bond must ordinarily be posted before a preliminary injunction may issue, § 1406.13 of the Act, supra, makes the posting of bond permissive. We find no abuse of discretion in the trial court's failure to require bond in this case.

      . Section 1406.16 of the Act provides that "... any landowner ... which shall be aggrieved or affected by any administrative rule, regulation, or order of the department issued pursuant to the provisions of the Act, shall have the right to appear at any hearing before the Environmental Hearing Board at which the secretary shall reconsider said action." (Emphasis added.)

      . For further discussion of this issue, see part II, below.

      . Consol contends that its maps were already approved by DER. Although this appears to be true, the Burns have not had the opportunity to apply to the DER and contest certification of the maps. They clearly have the right to do so, as § 1406.16 gives them the right to appeal any administrative action and upon this appeal DER “shall reconsider said action.” 52 Pa.S.A. § 1406.16.

      . A review of DER's current regulations are silent on the issue as well. See 25 Pa.Code § 89.142. This regulation does, however, include a catch-all provision which requires coal companies to identify on their maps "[ojther information as requested in accordance with the policies and procedures of the department.” We see no reason why the department, as discussed infra, could not require a mining plan to include the support for vacant lands that are entitled to support as a matter of property law.


author: CIRILLO, Judge:

text:
    636 A.2d 649
    BRITAMCO UNDERWRITERS, INC., Appellant, v. Charles WEINER and Marie Weiner Individually and t/a Eagle Bar and Clyde Davis.
    Superior Court of Pennsylvania.
    Argued Nov. 18, 1993.
    Filed Jan. 24, 1994.

      R. Bruce Morrison, Philadelphia, for appellant.
    Richard M. Bockol, for Weiner, appellees.
    G. Lawrence DeMarco, Philadelphia, for Davis, appellee.
    Before CIRILLO, FORD ELLIOTT and BROSKY, JJ.
   CIRILLO, Judge:

This is an appeal from an order entered in the Court of Common Pleas of Philadelphia County denying appellant Britamco Underwriters, Inc.’s (Britamco) petition for reconsideration of order denying Britamco’s motion for summary judgment. We affirm.

Clyde Davis (Davis) filed suit against the owners of Eagle Bar alleging that Charles Weiner, a co-owner of Eagle Bar, and Wilbur Tucker, an employee of Eagle Bar, struck Davis in the neck. Davis’s complaint asserted alternative theories of liability sounding in assault and battery, intentional, reckless and/or negligent infliction of emotional distress, and claims of negligence, generally.

Eagle Bar sought coverage for Davis’s claims under its general liability policy with Britamco. Thereafter, Britamco filed a declaratory judgment action seeking a declaration that it had no duty to defend or indemnify Eagle Bar in connection with Davis’s claim. After Davis and Eagle Bar filed their answers, Britamco filed a motion for summary judgment. The Honorable William J. Manfredi denied Britamco’s motion for summary judgment. Britamco’s petition for reconsideration was filed and denied. This court granted Britamco’s petition for review. See Pa.R.A.P. 1311; 42 Pa.C.S.A. § 702(b). Britamco presents two issues for our review:

(1) Whether the trial court erred in denying Britamco’s motion for summary judgment holding that the underlying claims constitute an occurrence under the insurance policy?
(2) Wfiiether the trial court erred in denying Britamco’s motion for summary judgment holding that the underlying claims were not excluded by the assault and battery endorsement to the insurance policy?

When we review the grant or denial of a motion for summary judgment made under Pa.R.C.P. 1035, our scope of review is well settled: summary judgment is properly granted where “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P. 1035(b). Summary judgment may be granted only where the right is clear and free from doubt. Musser v. Vilsmeier Auction Co., Inc., 522 Pa. 367, 369, 562 A.2d 279, 280 (1989). The moving party has the burden of proving that there is no genuine issue of material fact. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979). The record and any inferences therefrom must be viewed in the light most favorable to the non-moving party, and any doubt must be resolved against the moving party. Davis v. Pennzoil, 438 Pa. 194, 264 A.2d 597 (1970). The trial court will be overturned on the entry or denial of summary judgment only if there has been an error of law or a clear abuse of discretion. Hetrick v. Apollo Gas Co., 415 Pa.Super. 189, 608 A.2d 1074 (1992).

First, Britamco contends that because Davis’s complaint does not allege an “occurrence” as defined by the insurance policy, it has no duty to defend its insured Eagle Bar. We disagree.

The duty to defend is a distinct obligation, separate and apart from the insurer’s duty to provide coverage. Erie Ins. Exchange v. Transamerica Ins. Co., 516 Pa. 574, 582-83, 533 A.2d 1363, 1368 (1987). Moreover, the insurer agrees to defend the insured against any suits arising under the policy “even if such suit is groundless, false, or fraudulent.” Gedeon v. State Farm Mutual Automobile Ins. Co., 410 Pa. 55, 58, 188 A.2d 320, 321 (1963). Since the insurer agrees to relieve the insured of the burden of defending even those suits which have no basis in fact, the obligation to defend arises whenever the complaint filed by the injured party may potentially come within the coverage of the policy. Id.; see also Biborosch v. Transamerica Ins. Co., 412 Pa.Super. 505, 603 A.2d 1050 (1992); Youngman v. CNA Ins. Co., 401 Pa.Super. 381, 585 A.2d 511 (1991). In order to determine whether a claim may potentially come within the coverage of the policy, we must first ascertain the scope of the insurance coverage and then analyze the allegations in the complaint. Biborosch, 412 Pa.Super. at 509-10, 603 A.2d at 1052 (citing Cadwallader v. New Amsterdam Casualty Co., 396 Pa. 582, 152 A.2d 484 (1959)).

The standards to be applied in reviewing insurance contracts are well settled. The proper focus regarding issues of coverage under insurance contracts is the reasonable expectation of the insured. Dibble v. Security of America Life Ins. Co., 404 Pa.Super. 205, 210, 590 A.2d 352, 354 (1991). In determining the reasonable expectations of the insured, courts must examine the totality of the insurance transaction involved. Id. However, while reasonable expectations of the insured are the focal points in interpreting the contract language of insurance policies, see Collister v. Nationwide Life Insurance Co., 479 Pa. 579, 388 A.2d 1346 (1978) and Winters v. Erie Insurance Group, 367 Pa.Super. 253, 532 A.2d 885 (1987), an insured may not complain that his or her reasonable expectations were frustrated by policy limitations which are clear and unambiguous. Bateman v. Motorists Mut. Ins. Co., 527 Pa. 241, 245-46, 590 A.2d 281, 283 (1991); see also Neil v. Allstate Insurance Co., 379 Pa. 299, 549 A.2d 1304 (1988); St. Paul Mercury Ins. Co. v. Corbett, 428 Pa.Super. 54, 630 A.2d 28 (1993) (en banc). However, where a provision of an insurance policy is ambiguous, the provision is construed in favor of the insured and against the insurer. Bateman, 527 Pa. at 245-46, 590 A.2d at 283.

Here, the Britamco insurance policy contains the following provisions:

I. COVERAGE A — BODILY INJURY LIABILITY COVERAGE B — PROPERTY DAMAGE LIABILITY
The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
A. bodily injury or
B. property damage
to which this insurance applies, caused by an occurrence ....
“occurrence ” means an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.
ASSAULT & BATTERY ¡NEGLIGENT HIRING EXCLUSION
Notwithstanding anything contained herein to the contrary, it is understood and agreed that this policy excludes claims arising out of:
(1) Assault & Battery, whether caused by or at the instructions of, or at the direction of, the insured, his employees, patrons or any causes whatsoever and
(2) Allegations of negligent hiring, supervision, retention or control of employees by or on behalf of the insured.

As provided above, the policy defines “occurrence” as “an accident ... which results in bodily injury or property damage----” (emphasis added). Britamco argues that Davis’s injuries were not sustained as a result of an accident. It bases this argument on the fact that count one of the complaint entitled “Assault and Battery” describes the acts in question as “intentional,” “willful,” and “malicious.” However, paragraph 13 of Davis’s complaint refers to the incident in question as an “accident.” In addition, counts two and three of Davis’s complaint assert alternative theories of recovery sounding in negligence — e.g., negligent infliction of emotional distress, failing to provide adequate protection for business invitees, hiring or otherwise employing an individual with propensities for doing violence and/or inflicting mental distress on invitees, etc.

In support of its position, Britamco relies on Gene’s Restaurant, Inc. v. Nationwide Ins. Co., 519 Pa. 306, 548 A.2d 246 (1988). There, Nationwide issued Gene’s Restaurant a comprehensive general liability insurance policy which defined “occurrence” in the same manner as does the policy in this case. After reviewing the policy language and complaint, the Pennsylvania Supreme Court held that Nationwide had no duty to defend its insured because the willful and malicious assault alleged in the complaint amounted to an intentional tort excluded by the policy. Id. at 309-10, 548 A.2d at 247.

Britamco’s reliance on Gene’s Restaurant, Inc. is misplaced in that the case at bar is clearly distinguishable. In Gene’s Restaurant, Inc., the complaint alleged only the willful and malicious assault and beating of one of its patrons (plaintiff). Id. In contrast, and as articulated above, Davis’s complaint alleges alternative theories of recovery. Davis alleges that his injuries were either the result of an “accident,” or intentional or negligent acts of the insured Eagle Bar and/or its employees.

We find that because Davis’s claims may potentially come within the coverage of the Britamco policy, Britamco owed its insured a duty to defend. Gedeon, supra; Biborosch, supra.

In the alternative, Británico contends that Davis’s claims against Eagle Bar are excluded from coverage under the above-quoted assault and battery endorsement. We disagree. As discussed in the context of the first issue, Davis’s injuries may have been caused by the negligent acts of Eagle Bar and its employees and not necessarily by the intentional acts of any individual. Negligence of this type is not excluded by Britamco’s policy. Under Pennsylvania law, if the complaint filed against the insured avers facts which would support a recovery that is covered by the policy, it is the duty of the insurer to defend until such time as the claim is confined to a recovery that the policy does not cover. Erie Ins. Exchange, 516 Pa. at 583, 533 A.2d at 1368. We find that the trial court did not abuse its discretion in denying Britamco’s motion for summary judgment, Hetrick, supra, and, therefore, affirm the trial court’s order denying Britamco’s motion for summary judgment.

Order affirmed.

      . Rule 1035(a) provides:
      After the pleadings are closed, but within such time as not to delay trial, any party may move for summary judgment on the pleadings and any depositions, answers to interrogatories, admissions on file and support affidavits.
      Pa.R.C.P. 1035(a), 42 Pa.C.S.


author: DEL SOLE, Judge.

text:
    636 A.2d 652
    Mark H. HAMM, Appellant, v. Michele J. HAMM, Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 21, 1993.
    Filed Jan. 24, 1994.

      Angelo T. Almonti, Allentown, for appellant.
    Joseph J. Matika, Summit Hill, for appellee (Submitted).
    Before McEWEN, DEL SOLE and HOFFMAN, JJ.
   DEL SOLE, Judge.

This is an appeal from a trial court order granting Appellee’s motion to transfer the underlying custody case to the state of Nebraska on forum non conveniens grounds. On appeal Appellant, the father of the minor child involved in the custody dispute, argues that the court abused in discretion in ordering the transfer. He further asserts that the court should have dismissed Appellee, mother’s, petition to transfer for lack of timely notification and/or pursuant to the doctrine of res judicata. Because of the very incomplete state of the record in this case, we are unable to review the specific claims made and remand this matter to the trial court for resolution.

The trial court in its memorandum opinion sets forth some of the facts of the case. The parties’ daughter was born in 1990 in Florida, and the family moved to Pennsylvania later that year. The court found that the parties separated because of marital difficulties in November of 1991. It also states that on November 22, 1991 Appellant filed a custody action in Lehigh County, and that Appellee, returned to her family in Nebraska along with her daughter. There is no indication whether the move to Nebraska was made before or after the filing of the custody action. Because Appellant then later moved from Lehigh County to Carbon County before a hearing could be held, the Lehigh County court dismissed its action and recommended that the matter be transferred to Carbon County. In May of 1992, Appellant filed a Complaint in Custody in Carbon County and in June, following a Custody Conciliation Conference an Interim Order was entered granting temporary custody to Appellee. The court also was presented with a Petition to Transfer by Appellee seeking to have the matter transferred to Nebraska. On June 18th the court issued an order denying that petition “pending custody conference.” A custody hearing was later scheduled for December 23,1992, and, according to Appellant’s Brief, Appellant received notification on December 21, 1992 that Appellee had filed a Petition to Transfer Jurisdiction on December 17, 1992, and that the matter was scheduled to be heard on the date set for the hearing. Following receipt of Memoranda of Law, and the arguments of Counsel, the court granted the Petition to Transfer. In the memorandum, opinion which followed, the court set forth the terms of section 23 Pa.C.S.A. § 5348. This section, titled “Inconvenient forum”, provides in part:

(a) General rule. — A court which has jurisdiction under this subchapter to make an initial or modification decree may decline to exercise its jurisdiction any time before making a decree if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate 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).

With regard to these factors the trial court found the “Nebraska had more recently been the home state of the child”, that “the child’s connection with health care workers, day care workers, and a therapist, were more closely connected to the child’s residence in Nebraska”, that the parties had retained counsel in Nebraska and that Nebraska expressed a willingness to act in this matter. Finding all these factors weighed in favor of Nebraska assuming jurisdiction over the case, the court granted Appellee’s motion.

More than one state may have jurisdiction under the terms of the Uniform Child Custody Jurisdiction Act (UCCJA), and in such situations one state may defer its valid jurisdiction to another forum under section 5348 of the UCCJA, cited above. A decision to decline to exercise jurisdiction will not be reversed on appeal unless the court abused its discretion. Merman v. Merman, 412 Pa.Super. 247, 603 A.2d 201 (1992).

In the case presently before us the trial court has advised that it determined Nebraska to be the more appropriate forum because of the contacts the child has had in that state and because it was more recently the home state of the child. However Appellant asserts that Nebraska had no relationship with this child prior to the commencement of the initial proceeding in Lehigh County, and that Pennsylvania and not Nebraska was the home state of the child. Father argues that the only reason that the child was absent from Pennsylvania was because she was removed from this Commonwealth by her mother and retained in the state of Nebraska. He further contends that by considering the child’s connections developed in the state of Nebraska, the court “set precedent encouraging parents to abscond with their child to another state after the filing of the initial proceedings.” Finally, Appellant includes in his Brief a statement that the subject child has been residing in Pennsylvania since January 5, 1993. He offers this as further reason to reverse the trial court’s ruling transferring the action.

Appellee, on the other hand, presents a different picture of the underlying events to support her position. She maintains that by court order she was permitted to remove the child to Nebraska from November 25 through December 18, 1991, and that during that period of time she had discussion with Appellant and they had appeared to reconcile their marriage. Because of the reconciliation, Appellant advised his attorney to withdraw the matter from the scheduled custody conference. She explains that Appellant then traveled to Nebraska, but eventually returned to Pennsylvania when the parties weren’t able to mend the marriage. Mother maintains that she retained the child in Nebraska pursuant to the court’s order pending a full hearing. Finally, mother asserts that contrary to father’s statement, that the child is presently residing with her in Nebraska.

Absent from the record is any sworn testimony on these disputed facts, and necessarily any findings of fact made by the trial court. Without benefit of such, we are unable to determine whether the trial court acted properly in transferring this matter. In this case there appears to be a serious question of whether Appellee left this jurisdiction with the child before or after the initiation of custody proceedings. Further questions of whether Appellant consented to the initial move, and whether Appellee was complying with the terms of any order of court when retaining the child in Nebraska, remain unresolved. Since the first custody action was discontinued, a record of those proceedings is not contained in the present record.

We deem a decision on these matters critical because courts of this Commonwealth cannot allow parents to seek to evade the jurisdiction of our courts by unilaterally moving with their children while custody proceedings are pending. In such instances a parent could, as a result of that move, claim that the new location is a more appropriate forum because of the ties now created. Custody actions, by their nature, take time within the court system to resolve. It would be contrary to the purposes of the UCCJA to allow a parent to take advantage of this delay by wrongly moving the child to a new jurisdiction and creating ties to a new community in an effort to later argue that the new forum should govern the action. Because Appellant argues that Appellee took the child from the child’s “home state” where she had been residing for over six months after he initiated a custody proceeding and because the record is void of any information pertaining to the events which transpired, and the trial court has made no findings in this regard, we must remand this matter. On remand the trial court is to reconsider whether a transfer is appropriate in this case, taking into consideration the entire factual circumstances surrounding the move of the child to the state of Nebraska. If the court should determine that the move in this instance was made so as to create a jurisdictional competítion between states, contrary to the purposes of 23 Pa.C.S.A. § 5342(a), such a finding should strongly impact on the decision to transfer.

Appellant makes two remaining arguments relating to the court’s transfer order. He asserts that the court should not have considered Appellee’s petition because the court had previously ruled against Appellee when she made the same request and because he was not afforded sufficient notice. The record does not indicate that this matter was previously decided favorably to Appellant so as to invoke the doctrine of res judicata. The court’s previous ruling with regard to a Petition to Transfer filed by the mother denied the Petition, but the denial was “pending custody conference.” Thus, it appears the matter was ruled on temporarily, pending a final determination to be made at the time of the custody conference. Finally, with respect to the issue of notification, we note that Appellee has argued that this issue has been waived. Because the trial court did not speak to this issue in its opinion, or to the matter of waiver, and because a remand is necessary for other reasons outlined above, we conclude that this question may more appropriately be resolved by the trial court.

Accordingly, we remand this matter to the trial court for a further hearing to determine whether Pennsylvania courts should exercise jurisdiction, and if so to determine custody. Following the entry of the court’s decision, the aggrieved party can take the appropriate steps to perfect an appeal if desired.

Order vacated. Case remanded for proceedings consistent with this opinion. Jurisdiction relinquished.

      . The term "home State” is defined in 23 Pa.C.S.A. § 5343, 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 consecutive months, and, in the case of a child less than six months old, the state in which the child lived form birth with any of the persons mentioned. Periods of temporary absence of any of the named persons are counted as part of the six-month or other period.

      . 23 Pa.C.S.A. § 5341 et seq.


author:
HOFFMAN, Judge:
      JOHNSON, Judge,

text:
    636 A.2d 656
    COMMONWEALTH of Pennsylvania, Appellant, v. John JOHNSON.
    Superior Court of Pennsylvania.
    Argued Oct. 5, 1993.
    Filed Jan. 24, 1994.

      Michael Erlich, Asst. Dist. Atty., Philadelphia, for Com., appellant.
    Karl L. Morgan, Philadelphia, for appellee.
    Before POPOVICH, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the January 13, 1993 order granting appellee’s, John Johnson, motion to suppress. The Commonwealth presents the following question for our review:

Did defendant retain a reasonable expectation of privacy in a bag of crack cocaine vials, so as to bar police from examining the bag, after defendant placed the bag in a tree in a public park and walked away from it?

Commonwealth’s Brief at 3. For the reasons set forth below, we reverse and remand for trial.

Preliminarily, we point out that “[w]hen passing on a challenge to the decision of the suppression court, we are limited primarily to question [sic] of law, and we are bound by the suppression court’s findings of fact, provided those findings are supported by the record.” Commonwealth v. Tillman, 423 Pa.Super. 343, 344, 621 A.2d 148, 149 (1993) (citations omitted). The suppression court’s findings of fact are as follows:

Officer Frank Sheridan testified [that on Thursday, September 10, 1992 at approximately 5:40 p.m.,] he received an anonymous phone tip from a woman stating that she lived in the neighborhood of 52nd and Pine Streets, and she was sick and tired of the drug dealing, and she wanted to do something about it. She stated she observed a black male standing in the middle of a park just south of Pine Street. She described the male as wearing a gray t-shirt with multicolor horizontal stripes, light blue jeans, dark boots or sneakers, and a red baseball cap. She said she observed him make several transactions, where people would come up, give him money, and he would place something in their hand.
Officer Sheridan and his partner went to the northeast corner of 51st Street and Osage Avenue in uniform and in a marked police car to conduct a surveillance. The officers observed [appellee] from 25-30 car lengths away. Officer Sheridan observed [appellee] standing inside the park, midway between 51st and 52nd Streets, about 20 feet from the southside curb of Pine Street. [Appellee] was wearing clothing matching the description in the anonymous phone tip. Officer Sheridan observed [appellee] standing alone in the park for approximately 10-15 minutes when another man approached him. (This other man was approximately 6'3" tall, 150-160 pounds and was ragged and unclean in appearance.) The two men appeared to be conversing for a moment; then [appellee] walked over to a tree, 10-12 feet away, reached up and removed a brown plastic bag. [Appellee] walked over to the other man and opened the bag. The man leaned over and looked into the bag. The two men conversed a moment; then [appellee] put the bag in the same place in the tree. [At this time, appellee was 10-12 feet from the tree.] ...
The man then walked away from [appellee] and did not return. After observing [appellee] another five minutes during which [appellee] had no other verbal or physical contact with anyone or anything, the officers approached him. The police vehicle pulled into the park and stopped directly in front of [appellee]. The front of the van was facing [appellee], approximately one foot away from his body. A park bench was next to [appellee] on the right hand side. Both uniformed officers approached [appellee]. The court takes judicial notice that a uniformed officer is armed with a service firearm. While Officer Sheridan asked [appellee] for identification, the other officer walked away towards the tree. There is no articulation on the record that either of the officers were afraid of [appellee]. The officers did not do a protective frisk of [appellee] as a precaution. Officer Sheridan told [appellee] to turn around, and face toward the van, so that [appellee’s] back was facing Sheridan. Officer Sheridan.was standing one to one and one-half feet away from [appellee]. The other officer reached up into the tree and removed the bag, opened it, then waved to Officer Sheridan signalling drugs. The court finds that the police van obstructed the view of the search from [appellee]. Officer Sheridan then handcuffed [appellee]. Officer Sheridan opened the bag and saw 50 vials of crack cocaine. After a search of [appellee], a beeper and $58 were also confiscated.

Trial Court Opinion, May 25, 1993, at 2-4. Appellee was subsequently charged with possession of a controlled substance and possession of a controlled substance with intent to deliver. A preliminary hearing was held on September 21, 1992 where appellee was held for arraignment on these charges. Appellee filed an omnibus motion to suppress all physical evidence and, after a hearing on January 13,1993, the trial court granted appellee’s motion to suppress. This timely appeal followed.

The Commonwealth contends that as appellee did not have a legitimate expectation of privacy in the bag of crack cocaine, the trial court erred in suppressing its seizure. We agree.

As a general principle, “ ‘the Fourth Amendment requires that law officers obtain a warrant issued by a neutral magistrate before they intrude into a place of privacy.’ ” Commonwealth v. Williams, 380 Pa.Super. 227, 230, 551 A.2d 313, 315 (1988) (citation omitted), quoting Commonwealth v. Rispo, 338 Pa.Super. 225, 230, 487 A.2d 937, 939 (1985). However, “[o]ne such exception to the warrant requirement exists when the property seized has been abandoned.” Id. (citation omitted). In Commonwealth v. Shoatz, 469 Pa. 545, 366 A.2d 1216 (1976), our Supreme Court delineated the test employed to determine whether an abandonment has occurred:

Abandonment is primarily a question of intent, and intent may be inferred from words spoken, acts done, and other objective facts. United States v. Cowan, 2d Cir.1968, 396 F.2d 83, 87. All relevant circumstances existing at the time of the alleged abandonment should be considered. United States v. Manning, 5th Cir.1971, 440 F.2d 1105, 1111. ... The issue is not abandonment in the strict property-right sense, but whether the person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search. United States v. Edwards, supra, 441 F.2d [749] at 753 (5th Cir.1971) ]; cf. Katz v. United States, 1967, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. United States v. Colbert, 474 F.2d 174, 176 (5th Cir.1973).

Id. 469 Pa. at 553, 366 A.2d at 1220 (emphasis added).

In granting appellee’s motion to suppress, the trial court relied, in part, upon the fact that appellee did not intend to permanently abandon the plastic bag. While we agree that appellee did have a subjective intent to retain possession of the bag, we do not find that the trial court was therefore precluded from finding abandonment. See Commonwealth v. Anderl, 329 Pa.Super. 69, 83 n. 9, 477 A.2d 1356, 1363 n. 9 (1984). Abandonment can be established where an individual’s surrender of possession of the property constitutes such a relinquishment of interest in the property that a reasonable expectation of privacy may no longer be asserted. See Williams 380 Pa.Super. at 231, 551 A.2d at 315.

In the instant action, appellee placed the bag in a tree which was in a public park. As the tree was on public property and, therefore, accessible to anyone frequenting the park, any expectation of privacy in the bag would naturally be lessened by placing it in the tree. See, e.g., Anderl 329 Pa.Super. at 84, 477 A.2d at 1363 (appellee’s expectation of privacy in the satchel was measurably decreased by hiding it on the property of an unknown third party). See also Commonwealth v. Cihylik, 337 Pa.Super. 221, 227, 486 A.2d 987, 990 (1985) (“[P]rineiples of property law reflect society’s express recognition of an individual’s authority to conduct himself as he desires in certain areas and, while not controlling, ‘should be considered in determining whether an individual’s expectations of privacy are reasonable.’ ”) (quoting Commonwealth v. Sell, 288 Pa.Super. 371, 432 A.2d 206 (1981) (citations omitted)).

We point out, however, that the mere fact that the property was placed in an area open to the general public is not sufficient to establish abandonment. The evidence must also clearly demonstrate that the individual attempted to dissociate himself from the property. See, e.g., Commonwealth v. Williams, 380 Pa.Super. 227, 551 A.2d 313 (although the VCR and tapes were left unattended on a bench in a bar, as there was no evidence as to how long defendant was gone or whether defendant was aware of the police pursuit, there was insufficient evidence to show that defendant intended to dissociate himself from the property and, hence, suppression was proper); Commonwealth v. Sanders, 407 Pa.Super. 270, 595 A.2d 635 (1991) (although defendant placed his black pouch on the hood of the car, as he did not walk away from the car and there was no evidence that defendant was aware of the police officer’s presence, the trial court properly found that defendant did not intend to dissociate himself from the property and suppression was proper); Commonwealth v. Bennett, 412 Pa.Super. 603, 604 A.2d 276 (1992) (defendant’s placement of a duffle bag 6 to 15 feet away from himself against a wall while waiting for a bus did not sufficiently demonstrate that defendant intended to dissociate himself from the property). Here, appellee’s placement of the bag in the tree was more than just a temporary placement of his property beyond his grasp. Rather, appellee strategically placed the bag in the tree so that it was not immediately visible to passersby, stood 10-12 feet away from the tree and approached the bag only to show potential customers what he had to sell. Clearly, appellee’s placement of the bag constituted a conscious effort to dissociate himself from the bag in the event there was police intervention. Accordingly, by placing the bag in the tree, appellee effectively abandoned any reasonable expectation of privacy in the bag. Hence, as the warrant-less search and seizure of the bag was proper, we hold that the trial court erred in suppressing the bag and its contents from evidence.

Moreover, as the contents of the bag provided the Commonwealth with probable cause to arrest appellee, the search incident to his arrest was proper and the beeper and cash seized from appellee are also admissible. See Commonwealth v. Frank, 407 Pa.Super. 500, 510, 595 A.2d 1258, 1263 (1991) (Where sufficient probable cause exists, the police are entitled to conduct a search of appellant “because of the always present danger in an arrest situation that the arrestee may seek to use a weapon or to conceal or destroy evidence.”) (citing Commonwealth v. Tann, 500 Pa. 593, 598 n. 10, 459 A.2d 322, 325 n. 10 (1983)). Accordingly, the trial court’s suppression order is reversed and this case is remanded to trial.

Reversed; remanded to trial; jurisdiction relinquished.

JOHNSON, J. files a Dissenting Opinion.

JOHNSON, Judge,

dissenting:

I agree with my distinguished colleagues that abandonment is primarily a question of intent. I also agree with the assertion by my colleagues “that appellee did have a subjective intent to retain possession of the bag [containing drugs].” Majority opinion at 658. It is because of my agreement on these key points that I must respectfully disagree with the conclusion of my colleagues and, accordingly, dissent.

All three cases cited by the Majority on the issue of abandonment stand for the principle that there must be an observable act by a party which clearly evidences an intention to dissociate from certain property before abandonment can be found. Commonwealth v. Bennett, 412 Pa.Super. 603, 604 A.2d 276 (1992); Commonwealth v. Sanders, 407 Pa.Super. 270, 595 A.2d 635 (1991); Commonwealth v. Williams, 380 Pa.Super. 227, 551 A.2d 313 (1988).

In a footnote, the Majority sets forth the case for the non-abandonment of the property in the appeal now before us as follows:

While we agree that appellee did have a subjective intent to retain possession of the bag,....

Majority opinion at 658 (emphasis added). This is clearly correct. The Majority then proceeds, however, to characterize the defendant’s assumed future conduct with these words:

Clearly, appellee’s placement of the bag constituted a conscious effort to dissociate himself from the bag in the event there was police intervention.

Id. at 659 (emphasis added).

With this sentence, the Majority would seemingly accomplish what could not be accomplished in Bennett, Sanders, or Williams, supra. By speculating as to the purpose or reason for defendant’s conduct prior to police intervention, the Majority would manufacture a “future abandonment” which is triggered “in the event there was police intervention.” Not surprisingly, my colleagues concede that there are no Pennsylvania cases directly on point, but would liken the facts in the present appeal to the situation obtained in Commonwealth v. Rodriguez, 385 Pa.Super. 1, 559 A.2d 947 (1989); appeal denied, 524 Pa. 619, 571 A.2d 381 (1989).

I am unable to agree with my colleagues’ conclusions for several reasons. First, Rodriguez is inapposite. There, on a pretrial appeal by the Commonwealth, we held that the defendant’s act of throwing away the keys to an abandoned house constituted such a relinquishment of interest in the contents of the house as to defeat the defendant’s attempt to assert a reasonable expectation of privacy in its contents. In Rodriguez, we concluded that the defendant’s lack of standing arising from her act of throwing away the house keys precluded her from even initiating a fourth amendment argument.

Moreover, the Majority would ascribe two diametrically opposed intentions to the single act of the defendant. The Majority first concedes that the careful depositing of the bag in the tree manifests a clear intention by the defendant to retain possession of the bag. My colleagues then assert that the very same act of careful concealment “constituted a conscious effort to dissociate [the defendant] from the bag” assuming a future happening of police intervention. I am unable to join in this reasoning. The facts as found by the distinguished trial judge leave no doubt that the defendant did nothing and said nothing upon being approached by the uniformed officers which could by any stretch of the imagination be understood to be an act of dissociation.

The Majority would hold that the mere placement of the bag in the tree constitutes abandonment where the reviewing court can foretell the actor’s intended conduct in the event of police intervention. Perhaps the greatest flaw in this construction is that, in this case, the police did openly intervene, stopping their marked police car within one foot of, and facing, the defendant’s body. Rather than dissociating himself from the bag, as would be required under the theory advanced by the Majority, the defendant stood there, never once saying or doing anything that could be interpreted as dissociating himself from the brown plastic bag placed in the tree.

I decline to join in formulating a rule which would permit the Commonwealth to establish a future intent to abandon property based solely upon the careful concealment of property, which concealment might support an unexpressed desire to disclaim, or throw away, the property involved. At the time the police officer removed the bag from its hiding place in the tree, probable cause for an arrest did not exist nor is there any suggestion that the bag had to be seized and searched to protect the officers’ safety. I would find the seizure to have been unlawful and conclude that the order suppressing the evidence was not in error.

Hence this dissent.

      . 35 P.S. § 780-113(a)(16).

      . 35 P.S. § 780-113(a)(30).

      . Although appellee deposited the bag in a tree, appellee was careful to situate it where it was not immediately viewable by passersby. Moreover, appellee remained in the vicinity of the bag and accessed the bag when approached by a prospective customer. Clearly, appellee intended to retain possession of the bag.

      . Although there is no Pennsylvania case directly on point, but see In re Baraka, 6 Cal.App. 4th 1039, 8 Cal.Rptr.2d 221 (1992), the instant action can most readily be likened to the situation where an individual attempts to dissociate himself from the contraband while fleeing from the authorities. See, e.g., Commonwealth v. Rodriguez, 385 Pa.Super. 1, 559 A.2d 947 (1989), appeal denied, 524 Pa. 619, 571 A.2d 381 (1989). The only difference here is that appellee took precautions to dissociate himself from the contraband in anticipation of such police intervention.

       Although appellee deposited the bag in a tree, appellee was careful to .(situate it where it was not immediately viewable by passersby. Moreover, appellee remained in the vicinity of the bag and accessed the bag when approached by a prospective customer. Clearly, appellee intended to retain possession of the bag.