author: CIRILLO, Judge:

text:
    506 A.2d 451
    ESTATE OF Nathaniel F. COOPER, Deceased. Appeal of Neil S. COOPER E. Gerald Cooper.
    Superior Court of Pennsylvania.
    Argued Dec. l£j, 1985.
    Filed March 20, 1986.

      Gerald F. Ragland, Jr., Philadelphia, for appellants.
    Before CIRILLO, MONTEMURO and POPOVICH, JJ.
   CIRILLO, Judge:

This is an appeal from an en banc decree of the Court of Common Pleas of Philadelphia County. At issue is a will disposing of the estate of Nathaniel F. Cooper, who during his lifetime amassed several million dollars.

Contestant, testator’s son from his first marriage, appealed from the probate of the will at issue, claiming that his stepmother, proponent of the will, exerted undue influence upon testator, thus forcing him to leave virtually everything to her to the exclusion of contestant. After hearings on the matter, the Honorable Kendall Shoyer concluded the will was indeed the product of undue influence. Accordingly, the will was declared invalid, set aside, and testator’s last previous will was ordered probated. Upon exceptions by proponent, the matter was reviewed by the court en banc, which rejected Judge Shoyer’s findings and ordered contestant’s appeal from probate dismissed. The contested will was once again in effect. This appeal by contestant followed.

Judge Shoyer, in concluding that the contested will was the result of undue influence, outlined in considerable detail the testimony and circumstances upon which his decision was based. In condensed form, those findings are as follows.

Testator Nathaniel Cooper was a man of boundless energy and unsurpassed business acumen. Through a series of shrewd investments, he made himself a millionare in Horatio Alger fashion. He owned posh homes in Philadelphia, Manhattan, and Long Island, and was attended to by a chauffer and a battery of butlers and maids.

In 1958, testator suffered a massive stroke. His speech became slurred, and his walk was reduced to a shuffle. His weight dropped to the point of giving him a “skeleton” appearance. At times, others would have to cut his food for him. With utter indifference, he would sometimes urinate wherever he stood. He became hypochondriacal, carrying with him a suitcase filled with various medications. With regularity, he checked himself into a New York hospital for brief periods. He would only make important business decisions in the morning, because by afternoon he was fatigued.

Partially as a result of the many drugs he ingested, testator became an anxious, depressed man. He was a fearful shell of his former self. Through his depression, his wife Roslyn remained his one “shining star”. She received frequent and substantial largess from testator; in fact, the Long Island home was in her name outright. She meant everything to testator, and the thought of losing her made him utterly despondent.

Nonetheless, at those times when he was making business decisions, he retained a remarkable mental acuity and firmness of conviction, as testified to by his stock broker and the scrivener of the contested will. He remained a voracious reader of as many business and investment publications as he came across. His secretary testified that no business decision of any importance could be made without his approval. As certain medical testimony revealed, testator’s particular physical condition allowed for this apparent contradiction between strength of mind at certain times and total discomposure at the thought of losing Roslyn.

Testator repeatedly stated his love and affection for contestant. He paid for his Ivy League education in full. Later, he loaned his son $3,000.00 for business purposes, but only after contestant explained the reasons for the loan to Roslyn. Even when testator was regularly checking himself into a New York hospital, contestant drove once a month to New York to have lunch with his father. Testator once said of his son, “Someday he will be a very wealthy man.”

Roslyn had a strong hand in family affairs, sometimes extending into the business realm. Once, testator decided to sell most of his stock in Penn Food, Inc. Roslyn, concerned that her son Gerald’s job might be in jeopardy because he had recently begun working at Penn Food, threatened to sue her husband (in her capacity as partner in the venture) if he went through with the sale; testator succumbed and did not sell. On another occasion, testator refused to loan $10,000.00 to contestant because of the latter’s strained relationship with Roslyn. Said testator to his son: “If you could only get on good terms with Roslyn. I could do a lot more for you, but she knows every step I’m up to and she will make my life hell.”

During his lifetime, testator executed powers of attorney on two separate occasions. One, shortly after his stroke, was in favor of long time friend Bernard Segal and Roslyn. The other was executed just prior to a hospital stay; this one was solely in favor of Roslyn. Both were subsequently revoked.

Testator executed a number of wills throughout his lifetime prior to the one at issue. Their terms differed in various respects, but contestant’s status as a principal beneficiary remained constant; under the contested will, he is only an alternate beneficiary. In fact, testator executed a will only three days prior to the one at issue, and contestant was a principal beneficiary therein. During the intervening weekend, Roslyn was at the Long Island home, while testator remained in Philadelphia. The two spoke by telephone, but the substance of the call remains unknown (Roslyn’s testimony was deemed lacking in credibility). It does appear clear, however, that the call did bear directly on the will change. Testator went to one of his attorneys and demanded a new will leaving almost everything to Roslyn. Counsel warned, to no avail, that the tax consequences of such a will would be extremely harsh. By subsequent codicil, testator’s friend Bernard Segal was removed as executor, and in a later telephone conversation, testator seemed quite relieved that Mr. Segal did not press him to explain the change of executor. Judge Shoyer could find absolutely no explanation for this sudden and dramatically inconsistent change in the will.

One who challenges a will on the grounds of undue influence must establish that: 1) the person exerting such influence stands to benefit greatly by the contested will, 2) the testator was of weakened intellect, and 3) the testator stands in a confidential relationship with the person exerting influence. Estate of Reichel, 484 Pa. 610, 400 A.2d 1268 (1979); Estate of Bankovich, 344 Pa.Super. 520, 496 A.2d 1227 (1985). There is no precise formula for finding a confidential relationship, but generally it will be found when one justifiably reposes his trust in the hands of another who possesses some overmastering influence. This trust is given with confidence that it will be used in the testator’s best interests. Bankovich, supra; Estate of Buriak, 342 Pa.Super. 371, 492 A.2d 1166 (1985).

In the present case, it is beyond question that proponent stood to receive a substantial sum under the contested will. However, a review of the evidence by the court en banc led it to the conclusion that neither a weakened intellect nor a confidential relationship was proven by clear and convincing evidence.

Noting that the marital relationship is not confidential per se, the court concluded that Judge Shoyer’s wholesale reliance on the execution of powers of attorney in support of finding such a relationship was misplaced, since they were issued long before his death and were both revoked. The court also found it important that nothing was known of Roslyn’s role in obtaining the powers of attorney. The relevance of this last consideration escapes us, since the issue is whether the powers of attorney pointed to a confidential relationship in the proof of undue influence, and not whether the powers of attorney were themselves the result of undue influence. In any event, it appears that in reality Judge Shoyer also considered the need for Roslyn's approval for loans to the family, her status as a joint partner in Penn Food, and her knowledge of “every step” taken by testator in concluding that there was a confidential relationship.

Concerning weakened intellect, the court observed that contestant’s medical witnesses, on which Judge Shoyer relied in reaching his conclusion, never examined testator personally, whereas proponent’s medical witnesses had known him for some time. Aside from the fact that it was this very friendship with testator that reduced the credibility of those witnesses in Judge Shoyer’s view, we are aware of no rule demanding that a medical witness must personally examine a subject in order for his testimony to be found credible.

Further, the en banc court could find nothing upon which to base a finding of undue influence generally. In this connection, the court observed that although there was testimony indicating testator’s susceptability to undue influence, such influence was not actually proven. No weight can be given to this particular observation, since it is well settled that undue influence may be demonstrated by circumstantial evidence. Estate of Ziel, 467 Pa. 531, 359 A.2d 728 (1976); Estate of Clark, 461 Pa. 52, 334 A.2d 628 (1975).

The en banc court sat in a reviewing capacity, and thus its scope of review was identical to that which constrains this Court. In Bankovich, 344 Pa.Super. at 522-523, 496 A.2d at 1229, we observed that we are

“... limited to determining whether the findings of fact ... rest on legally competent and sufficient evidence, and whether an error of law has been made or an abuse of discretion committed.” In re Estate of Ziel, [supra, 467 Pa. at 536, 359 A.2d at 731]; In re Estate of DiPietro, 306 Pa.Super. 238, 240, 452 A.2d 532, 533 (1982). “It is not our task to try the case anew.” In re Estate of Ross, 316 Pa.Super. 36, 40, 462 A.2d 780, 782 (1983). “This rule is particularly applicable ‘to findings of fact which are predicated upon the credibility of the witnesses, whom the judge has had the opportunity to hear and observe, and upon the weight given to their testimony.’ ” Estate of Gilbert, 342 Pa.Super. 82, 87, 492 A.2d 401, 404 (1985), (quoting In re Estate of Dembiec, 321 Pa.Super. 515, 519-520, 468 A.2d 1107, 1110 (1983)).

We hold that beyond the misapplication of certain legal principles discussed supra, the en banc court improperly substituted its own judgment for that of the hearing judge. For this reason, we reverse.

The en banc court stated the appropriate standard of review at the outset of its opinion and again in its conclusion. However, the balance of the opinion belies any adherence to that principle. For example, after noting that Judge Shoyer found two of proponent’s medical witnesses lacking in credibility, the court forged ahead, elaborating upon their credentials and highlighting their testimony where it was inconsistent with the testimony Judge Shoyer did find convincing.

In the same vein, in concluding that the inconsistency between testator’s unwavering business acumen and helplessness at the hands of Roslyn could not be explained, the court decided that Judge Shoyer did not place sufficient emphasis on the testimony of the scrivener, testator’s secretary, and his stock broker, all of whom saw no signs of mental weakness. It concluded in part: “In view of the credible evidence presented, we cannot agree that contestant has proven by clear and convincing evidence that decedent was of weakened intellect ____” Whether the court agreed with Judge Shoyer is wholly irrelevant; indeed, it is the very antithesis of the well settled rule dictating that the chancellor’s finding simply be one that a reasonable judicial mind could reach. In light of testimony explaining testator’s condition as allowing for total conviction in some situations and helplessness in others, Judge Shoyer’s finding cannot be deemed unreasonable.

Further, since undue influence may be demonstrated through circumstantial evidence, the chancellor’s conclusion that no explanation existed for the sudden will change is not itself unreasonable. As Judge Shoyer observed, the most telling circumstance in this connection was the fact that testator drafted a series of wills, all of which accounted for contestant, and with no ascertainable change in affection for his son cut him out of the final will. On appeal, proponent suggests that the sudden will change was the natural consequence of recent adverse effects of the stock market upon the estate, as well as contestant’s independent business success. At a minimum, this position overlooks the fact that the last will in which contestant was included was executed only three days prior to the contested will.

The court’s decision was founded upon a public policy concern, namely, the potential deterioration of the special status which the law accords the marital relationship. The court states that it is not a judge’s place to meddle in the complexities of the marital relationship. We agree with the court’s insight that every marriage involves certain concessions which may seem outwardly imprudent but are nonetheless made to keep the marital peace. However, we question whether a son’s exclusion from a multi-million dollar estate can adequately be categorized as such a grudging concession. The special status which the law accords the marital relationship must not be used to arm a spouse with an impenetrable shield to ward off the claims of other family members to whom the bounty of the estate was intended to flow.

Regardless, such matters of public policy cannot serve as a vehicle for the dilution of the important constraints imposed upon appellate judicial review. From the evidence presented, a judicial mind could reasonably find, as Judge Shoyer did, that the contested will was the result of undue influence.

In conclusion, we consider proponent’s argument that contestant’s appeal from probate was time barred. The will was admitted to probate in January of 1975. Contestant appealed in October, 1976, approximately 22 months later; at that time, 20 Pa.C.S. § 908(a) required all such appeals to be taken within one year of probate.

The one year appeal period did not come into effect until July, 1976, which was after the probate of the will, but before the appeal was taken. At the time of probate, § 908(a) provided a two year period for appeals. Thus, at the time contestant’s right to appeal accrued, the two year statute of limitations was in effect. As 1 Pa.C.S. § 1976(a) dictates, civil provisions in a statute shall not impair a right existing or accrued. The action may proceed under the statute as it existed when the action began. Further, the limitations period impacts directly upon a substantive right and thus should not be applied retroactively because the legislature did not clearly indicate otherwise. See Miller v. Commonwealth Department of Transportation, 91 Pa. Cmwlth. 622, 498 A.2d 1370 (1985); Costa v. Lair, 241 Pa.Super. 517, 363 A.2d 1313 (1976). Since contestant did appeal within the original two year limitation period, we reject proponent’s argument as meritless.

Reversed and remanded to allow for the probate of the will of July 13, 1973. Jurisdiction is relinquished.

POPOVICH, J., dissents.

      . Proponent Roslyn Cooper died on May 6, 1985. Her estate is now represented by E. Gerald Cooper, her son by testator (contestant’s halfbrother).

      . E. Gerald Cooper was also a principal beneficiary under each will except the final one. However, he does not face contestant’s dilemma, for he stands to receive all that which is allotted to his mother’s estate.


source: Caselaw Access Project

author: MONTEMURO, Judge:

license: Public Domain

text:
    506 A.2d 455
    In the Matter of The ADOPTION OF Lisa Marie EMBICK, a/k/a Lisa Marie Pletcher, A Minor. Appeal of Ronald EMBICK and Donna Pletcher Embick.
    Superior Court of Pennsylvania.
    Argued Oct. 23, 1985.
    Filed March 20, 1986.

      Charles R. Rosamilia, Jr., Lock Haven, for appellants.
    Before ROWLEY, OLSZEWSKI and MONTEMURO, JJ.
   MONTEMURO, Judge:

This is an appeal from the final decree terminating the parental rights of appellants, Ronald E. Embick (hereinafter Ronald) and Donna Pletcher Embick (hereinafter Donna) in their daughter Lisa Marie Embick, also known as Lisa Marie Pletcher (hereinafter Lisa). Our thorough review of the record and application of the appropriate standard of review compels us to conclude that the determination of the court below is well supported by the evidence. Accordingly we affirm.

Appellants have presented two questions for review:

1. Whether the Clinton County Children and Youth Agency (hereinafter Agency) has established by clear and convincing evidence the grounds for involuntary termination of parental rights under Sections 2511(a)(2) and (a)(5) of the Adoption Act of 1980?

2. Whether a licensed psychologist can, without the written consent of his/her patient be examined in a civil matter as to information acquired in the course of his/her professional services on behalf of such client? The second question appears to be one of first impression in this jurisdiction.

We shall discuss the second question first.

Appellants challenge the ruling of the court below which admitted the testimony of Dr. Patricia Piper, a licensed psychologist. They argue that Dr. Piper’s testimony concerned confidential communications between a psychologist and client and, thus, were privileged.

The psychologist-client privilege relied upon by appellants reads as follows:

No person who has been licensed under the act of March 23, 1972 (P.L. 136, No. 52), to practice psychology shall be, without the written consent of his client, examined in any civil or criminal matter as to any information acquired in the course of his professional services in behalf of such client. The confidential relations and communications between a psychologist and his client shall be on the same basis as those provided or prescribed by law between an attorney and client.

Act of July 9, 1976, P.L. 586, No. 142 § 2, 42 Pa.C.S. § 5944 (footnote omitted).

All parties agree that Dr. Piper is a licensed psychologist in Pennsylvania and has been ever since 1977. Nor can her qualifications be seriously questioned; she has earned an undergraduate degree in psychology, a master’s degree in counseled psychology, and a doctorate in counseled psychology. All her degrees were earned at Duke University. For five (5) years she worked at the Children’s Psychiatric Institute where she did an internship. Following her internship, she returned to Pennsylvania in 1978. From 1978 until the date of the hearing in this matter she has been engaged in private practice. (N.T.T.H. at 56-57).

Dr. Piper testified that she examined the appellants and Lisa at the request of the Agency. She stated that the purpose of her examination was two-fold: first, she was asked to see if anything could be done to reunite the family and, second, she was to make an assessment as to what would be in Lisa’s best interests as far as permanent placement. (N.T.T.H. at 57).

Dr. Piper also testified that she informed the natural mother that the results of her testing would be shared with other people, and that that was always her practice when a child was involved. (N.T.T.H. at 59).

The testimony of Dr. Piper which was sought to be excluded by appellant’s reliance on the psychologist-client privilege may be summarized as follows:

When asked what testing was done by her, Dr. Piper testified that because of Lisa’s age (she had just recently turned two), no formal testing was done. In Lisa’s case, Dr. Piper stated that she spent five (5) hours with her, watching her in the presence of only her foster parents, watching her in the presence of only the appellants, and watching her in the presence of only her foster mother. It was, according to Dr. Piper, a matter of observing and playing with Lisa, and gauging her development accordingly. (N.T.T.H. at 59).

Dr. Piper testified that Lisa was shy with her when she was with her foster parents, but was very warm with her foster parents. She sat on her foster mother’s lap and on her foster father’s lap, played nicely with toys, and talked and sang while she was with them. The same was true when Lisa was seen just with her foster mother. (N.T.T.H. at 58).

Dr. Piper continued her testimony by stating that when she observed Lisa with her natural parents, the child screamed loudly, “I want my mommy, I want to get out.” She refused to sit on her natural father’s lap, and eventually fell asleep in her natural mother’s lap, screaming until shortly before falling asleep. (N.T.T.H. at 58).

Dr. Piper testified that with the weekly visits the appellants had with Lisa, she would have expected to see more of a relationship between appellants and Lisa, and that she would have expected Lisa to be more comfortable in their presence. (N.T.T.H. at 58). Lisa, according to Dr. Piper, was desperately unhappy when she was in appellants’ presence. (N.T.T.H. at 59).

At this point we should observe that the range of applicability of Pennsylvania’s psychologist-client privilege has been defined as being the same as the attorney-client privilege. 42 Pa.C.S. § 5944. In Commonwealth v. Goldblum, 498 Pa. 455, 464, 447 A.2d 234, 239 (1982), our supreme court said: “Between an attorney and client the privilege is confined to confidential communications.” Thus, even assuming that Lisa was Dr. Piper’s client, and certainly she was not, Dr. Piper’s testimony concerning Lisa was based on visual observation of Lisa while alone with her natural parents, and alone with her foster parents. There were no confidential communications.

When asked what testing was done on the appellants, Dr. Piper testified that they were both given the Wexler Adult Intelligence Scale Revised Test as well as sentence completion items and discipline techniques. (N.T.T.H. at 57).

Dr. Piper testified that Donna’s testing showed her to be functioning in the mentally retarded range with a verbal I.Q. of 65, a performance I.Q. of 74, which is borderline range, and an overall full-scale I.Q. of 68, which is in the mentally retarded range. (N.T.T.H. at 60).

With reference to her other tests, Dr. Piper stated that the natural mother showed woeful inadequacies in her responses to discipline techniques, and also with regard to child development milestones. By way of example, Dr. Piper testified that the natural mother said that a child should be eighteen (18) years old before being left alone in the house, yet at age two (2) a child should be able to clean a bedroom, living room and help with the dishes. Further, the natural mother said a child should be fourteen (14) years of age before it could cross the street. The natural mother told Dr. Piper that Lisa was eating fifty {50) jars of baby food a day, and when asked how she would know if a child was sick, she said you would rush her to the hospital if the child’s temperature was over ninety (90) degrees, seventy (70) to eighty (80) being normal. (N.T.T.H. at 60).

Dr. Piper concluded by saying that in her opinion Donna was not capable at the time of hearing to provide Lisa with the care that would be considered adequate parenting. (N.T.T.H. at 61).

With reference to Ronald, the natural father, Dr. Piper testified that while he had a higher intellectual ability and a better understanding of safety rules for children, he was unaware of the emotional needs of the child, and was incorrect as to what could be expected of a child at different ages. For example, Dr. Piper stated that when asked why Lisa should be returned to them, Ronald responded that she should not be returned at this time because they were not capable of keeping her, but that he would like to see her taken from the foster home so that she would be forced to turn toward them, the appellants, for affection. When asked how he thought Lisa would feel about such a removal, he at first replied, “I don’t know, I’m not here”, and when asked again he said, “well, she would get over it in a couple of days. She would be a little unhappy but she would get over it pretty quickly.” (N.T.T.H. 62, 63). Dr. Piper opined that such a removal of Lisa from one foster home to another for the purpose suggested by the natural father would be devastating for Lisa.

Dr. Piper testified that in her opinion the natural father was not capable of parenting Lisa. Dr. Piper also was of the opinion that Lisa’s permanent placement with her foster parents by way of adoption would best serve her needs and welfare.

Was Dr. Piper’s testimony concerning the natural parents, offered by the Agency as part of its case on involuntary termination of parental rights, privileged and therefore inadmissable under the psychologist-client privilege? We think not, and find no abuse of discretion in its admission by the hearing judge.

Our research has failed to unearth any Pennsylvania case wherein the psychologist-client privilege has been asserted when the issue before the court was, as in the case sub judice, whether parental rights should be involuntarily terminated. Those cases where the statutory privilege was asserted are easily distinguished.

At common law the attorney-client relationship was the only professional association protected by an evidentiary privilege. 8 J. WIGMORE, EVIDENCE, § 2286, n. 17 (McNAUGHTON’S rev. ed. 1961). In the early fifteen hundreds, the theory of the attorney-client privilege was objective rather than subjective — “a consideration for the oath and the honor of the attorney rather than for the apprehensions of his client.” Id. at § 2290 (emphasis in original). However, since the latter part of the seventeen hundreds the new theory, which prevails today, evolved, grounded on the subjective consideration that, “in order to promote freedom of consultation of legal advisers by clients, the apprehension of compelled disclosure by legal advisers must be removed____” Id § 2291. This concept of freedom of consultation was recognized by this court in Commonwealth v. Hutchinson, 290 Pa.Super. 254, 263, 434 A.2d 740, 744 (1981) when, we said “[a] fundamental purpose of the attorney-client privilege is to foster full communication between an attorney and his client.”

This Commonwealth, like most of our sister states, mindful of the common law rule that “no pledge of privacy nor oath of secrecy can avail against demand for truth in a court of justice”, WIGMORE, supra, § 2286, passed legislation to protect disclosure of communications in certain other relationships, e.g., physician-patient, 42 Pa.C.S. § 5929; confidential communications to news reporters (the so-called Pennsylvania Shield Law), 42 Pa.C.S. § 5942; confidential communications to clergymen, 42 Pa.C.S. § 5943; confidential communications between psychologist and client, 42 Pa.C.S. § 5944; confidential communications to school personnel, 42 Pa.C.S. § 5945 and, most recently, confidential communications with sexual assault counselors, 42 Pa.C.S. § 5945.1. The common law attorney-client privilege was codified in the Act of May 23, 1887, P.L. 158, No. 89, § 5(d), 28 P.S. § 321, repealed and reenacted by Act of July 9, 1976, P.L. 586, No. 142, § 2, effective June 27, 1978, 42 Pa.C.S. § 5928.

There can be no doubt that the purpose of the psychologist-client privilege is to encourage people to seek professional help for their mental or emotional problems, and that purpose is best accomplished when people in need of psychotherapeutic treatment know that what they tell their therapist during treatment will not be disclosed to anyone. In a concurring and dissenting opinion in Commonwealth ex rel. Platt v. Platt, supra, former President Judge Spaeth wrote that, “General agreement exists in the legal and medical worlds that confidentiality of communications between patients and therapists is the sine qua non of successful psychiatric treatment.” Id., 266 Pa.Superior Ct. at 305, 404 A.2d 425. (citations omitted.)

It cannot be' gainsaid that society desires to protect and provide succor for the relationship of psychologist and client, and that without the confidentiality which the privilege provides, many people would simply forego therapeutic treatment.

With that rationale as the underpinning in support of non-disclosure of confidential communications between client and psychologist, should the privilege be applicable where appellants, as in the case at bar, agreed to be examined by Dr. Piper at the request of the Agency? For several reasons, we think not.

First, there has been no showing that appellants were Dr. Piper’s clients in any sense of that term. They were not seeking treatment, or counseling, or advice for any mental or emotional problems; in fact, as we read this record, we doubt that either appellant would ever even remotely suggest that any mental or emotional problems might exist. They went to see Dr. Piper because they were asked to do so by the Agency, and for the limited purpose, of examination. We therefore hold that under the facts of this case, the relationship between appellants and Dr. Piper was not the type of relationship contemplated by the statute which confers the privilege.

Second, we are satisfied from our own reading of the record that appellants knew Dr. Piper would, at the very least, report back to the Agency if not directly to the court, the results of her examination; therefore, appellants had no expectations that their communications with Dr. Piper would be held confidential.

Third, there can no longer be any doubt concerning the requirement of a full and comprehensive hearing in involuntary termination cases. In In re Adoption of James J., 332 Pa.Super. 486, 491, 481 A.2d 892, 894 (1984) (en banc) this court stated:

Insofar as termination cases are concerned, intimations of broad appellate review or broad scope of review should properly relate to the appellate court’s duty to ensure that the trial court has satisfactorily fulfilled the requirements of examining all evidentiary resources, conducting a full hearing and setting forth its decision in a full discursive opinion. While, unlike custody cases, the termination cases have not repeatedly verbalized the requirement of comprehensiveness, it is clear from a reading of the cases that the requirement is engrafted on the law. Accord, In re Adoption of J.S.M,, Jr., 492 Pa. 313, 424 A.2d 878; In re D.J.Y., 487 Pa. 125, 408 A.2d 1387 (1979); In Interest of C.M.E., 301 Pa.Super. 579, 448 A.2d 59 (1982).

Interestingly, the nisi prius courts as well as the appellate courts considered the testimony, without objection, of psychiatrists and/or psychologists (in some cases both) in the following involuntary termination of parental rights cases: In Re Adoption of Michael J.C., 506 Pa. 517, 486 A.2d 371 (1984); In re William L., 477 Pa. 322, 383 A.2d 1228 (1978), cert. denied 439 U.S. 880, 99 S.Ct. 216, 58 L.Ed.2d 192; In re Adoption of B.K.W. and D.M.W., 348 Pa.Super. 333, 502 A.2d 235 (1985); Matter of Adoption of Ferrante, 334 Pa.Super. 53, 482 A.2d 1076 (1985); In re Adoption of James J., supra; In the Interest of C.M.E., 301 Pa.Super. 579, 448 A.2d 59 (1982). We are convinced that in each of these cases the testimony of the psychiatrists and psychologists, although not necessarily conclusive, greatly assisted the courts — at both the hearing below and on appeal — in the decision to grant or refuse the petition to involuntarily terminate parental rights.

It would be anomalous to insist that the hearing court examine all evidentiary resources, conduct a full and comprehensive hearing, and, at the same time, deprive the hearing court of material testimony concerning the mental or emotional condition of the natural parents. Where, as here, the record demonstrates that a piercing of the wall of protected communications between the natural parents and the psychologist is both material and necessary to a proper determination of issues before the court, the statutory privilege protecting such communications must yield. See, Perry v. Fiumano, 403 N.Y.S.2d 382 at 386, 61 A.D.2d 512 (1978) (custody case).

Fourth, the analysis suggested by Dean Wigmore would compel the conclusion that the statutory psychologist-client privilege must yield to disclosure of the communications under the facts of this case. Wigmore said that four criteria must be satisfied to justify an evidentiary privilege: (1) the communications must originate in the confidence that they will not be disclosed; (2) the element of confidentiality must be essential to the full and satisfactory maintenance of the relationship between the parties; (3) the relationship must be one which, in the opinion of the community, ought to be sedulously fostered; and (4) the injury that would inure to the relationship by the disclosure of the communication must be greater than the benefit thereby gained for the correct disposal of litigation. WIGMORE, supra, § 2285.

With reference to the first three conditions, since we have already held that under the facts of this case there simply was no true relationship of psychologist and client in any sense of that term, we can safely say that none of these conditions have been satisfied.

With reference to Dean Wigmore’s fourth condition, even if we were to concede that a relationship did exist, we would hold that the injury that would inure to the relationship by the disclosure of the communication, where the court is concerned with proper placement of the child as well as the possibility of keeping the family intact, is not greater than the benefit thereby gained for the correct disposal of the delicate and complex societal issues before the court in cases such as this.

For all of the above reasons, the hearing court was correct in its decision to permit the psychologist to testify.

We shall next address appellant’s contention that the Agency failed to prove by clear and convincing evidence the grounds for involuntary termination of parental rights under Sections 2511(a)(2) and (a)(5) of the Adoption Act of 1980. (See n. 1 supra).

Lisa was born out of wedlock on January 30,1981. She is now five (5) years of age and, with the exception of the first three months of her young life, she has lived continuously with her foster parents, Elmer and June Eisenhower (hereinafter the “Eisenhowers”) in Clintondale, Pennsylvania. The Eisenhowers now wish to adopt Lisa.

Subsequent to Lisa’s birth she resided with Donna and Christina Reynolds, her paternal grandmother, in a trailer at the Pine Acres Trailer Court in Lock Haven, Pennsylvania. The trailer was owned by the grandmother. The record is not clear where the natural father, Ronald, was living at the time of Lisa’s birth.

On or about April 8, 1981, when Lisa was just a little over two months of age, Donna apparently had a disagreement with the paternal grandmother, and as a consequence, she and Lisa left the trailer to move in with a girl named Cindy Shade who lived in an apartment on Corning Street in Lock Haven.

Shortly thereafter, the paternal grandmother received reports from her sons and another daughter-in-law that Lisa was being badly neglected, that she was being thrown on the bed, that she was filthy and being mistreated. (N.T. C.H. January 20, 1982 at 5). On April 20, 1981, the paternal grandmother went to the apartment of Cindy Shade, and Lisa was turned over to her by Ms. Shade. (N.T.C.H. December 8, 1981 at 5). The paternal grandmother, in response to a question from the Agency’s counsel, said, “I kidnapped that baby for the baby’s welfare.” (N.T. C.H. December 8, 1981 at 15). She went directly from Ms. Shade’s apartment to the Williamsport Hospital in fear that Lisa would die before she got there. She said that Lisa “wouldn’t smile. She wouldn’t even move. She wouldn’t move her head.” (N.T.C.H. January 20, 1982 at 5). Lisa was admitted to the Williamsport Hospital by one Dr. Williams who assumed temporary protective custody of the child.

The next day, April 21, 1981, the Agency took protective custody of Lisa because of parental neglect.

On April 22, 1981, the natural parents, Ronald and Donna, consented to a voluntary placement of the child with the Agency on condition that the child not be placed with the paternal grandmother. (N.T.C.H. December 8, 1981, at 16, testimony of paternal grandmother). On the same day, April 22, 1981, the court below entered an order transferring custody, and placed Lisa with the Agency.

A little over two (2) years later, on May 17, 1983, the Agency filed a petition to involuntarily terminate the parental rights of appellant, Ronald and Donna. Testimony was taken on July 12, 1983. On May 31, 1984, the court below filed an Adjudication and a Decree Nisi terminating the parental rights of appellants, Ronald and Donna, and directing that custody of Lisa be transferred to the Agency pending adoption.

Appellants filed exceptions to the court’s findings of fact, and objections to the decree nisi on June 11, 1984. Following the filing of a transcript of the proceeding and the briefs of the parties, on November 15, 1984, the court below filed an Opinion and Order on March 30, 1985, dismissing appellants exceptions and objections and denying their requested relief.

This court sitting en banc in In Re Adoption of James J., supra, delineated the appropriate standard of review. In reviewing a termination order our appellate function is limited to a determination of whether the decision to terminate parental rights is supported by competent evidence. We must employ a broad, comprehensive review of the record; however, unless the court below has abused its discretion or committed an error of law, the order must not be disturbed.

From the holding of the Supreme Court of the United States in Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), we are compelled to recognize that the burden of proof on the party seeking to terminate parental rights is one of clear and convincing evidence. See also: In Re Adoption of Michael J.C., supra; In Re Adoption of B.K.W. and D.M.W., supra; In Re Adoption of Baby Boy Allen, 337 Pa.Super. 133, 486 A.2d 517 (1984); Lookabill v. Moreland, 336 Pa.Super. 520, 485 A.2d 1204 (1984); In Re Baby Boy P, 333 Pa.Super. 462, 482 A.2d 660 (1984).

In the case at bar, the court below terminated appellants’ parental rights pursuant to both 23 Pa.C.S. § 2511(a)(2) and § 2511(a)(5), which, respectively, read:

(a) General rule. — The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:
(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental wellbeing and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent. (5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.
(b) Other considerations. — The court in terminating the rights of a parent shall give primary consideration to the needs and welfare of the child. The rights of a parent shall not be terminated solely on the basis of environmental factors such as inadequate housing, furnishings, income, clothing and medical care if found to be beyond the control of the parent.

Guided by the above stated standard of review and the burden of proof, we shall review the record and determine whether the Agency has proved by clear and convincing evidence the necessary elements of § 2511(a)(2) and § 2511(a)(5).

We will not reverse the court below unless it is apparent that that court abused its discretion, committed an error of law, or lacked evidentiary support for its findings. “Following the involuntary termination of parental rights by the Orphans Court our scope of review is limited to determining whether the decree of termination is supported by competent evidence.” In Re Adoption of Michael J.C., supra, 506 Pa. at 521, 486 A.2d at 373 (1984).

The court below in an extensive, thorough and searching analysis, filed ninety-one (91) findings of fact, which we shall attempt in pertinent part to summarize. We shall also supplement the findings of the court below with those of our own as gleaned from our independent review of the record.

Jeanne Monoski, an Agency caseworker, attempted to be of assistance to the natural mother, Donna, even before the Agency took custody. On March 31, 1981, Donna admitted to Ms. Monoski that she had a short temper and lacked patience when it came to caring for Lisa; also, she admitted screaming at Lisa when the child cried, that she became easily frustrated, and that she needed help in dealing with the pressures of raising a child because it was too much for her. Ms. Monoski, on that same day, discussed counseling with Donna, and found her agreeable to the idea. Ms. Monoski also spoke to Donna about getting involved with the Infant Development Program (hereinafter I.D.P.) to work on parenting skills, about making sure that she kept doctors’ appointments for Lisa, and, further, informed Donna that the Agency would continue to monitor the case in order to see that Lisa was being fed and clothed properly, and that her needs were being met.

The Agency considered the paternal grandmother’s residence for foster home placement but did not select her because of the opposition of the natural parents, and also because of the presence of the parental grandmother’s seventeen (17) year old son, Jonathan Embick, who apparently had emotional problems of his own.

On April 23, 1981, Lisa was placed in the foster home of Elmer and June Eisenhower in Clintondale, Pennsylvania, and has resided there ever since. As we have already indicated above, from the age of about three (3) months to her present age of five (5) years, Lisa has lived with her foster parents who now wish to adopt her.

Upon coming into custody of the Agency, the child was diagnosed as anemic, and in May of 1981, when observed by the I.D.P., she was pale, thin, lethargic, apathetic and underweight based upon age, birthweight and normal weight gain in infants. Further testing revealed developmental delays in the areas of poor head control, weak sucking reflexes, abnormal visual tracking pattern with left eye drift, asymmetrical head shape, gross motor-control delay, abnormal pattern with arms and lack of vigorous movement. There was no medical reason for the existence of these developmental problems which were attributable solely to the environment and under-nutrition.

The foster parents actively participated in the program, and have administered the care prescribed by the I.D.P.; Lisa progressed well, and has since been discharged. Since April 22, 1981, the Agency has attempted to work with the natural parents for the return of the child, and the Agency formulated a placement service plan, the goal of which was to return Lisa to her natural parents. Under this plan, the parents were to: (1) establish a permanent residence; (2) seek counseling to help Donna with her bad temper and lack of patience in caring for Lisa as well as the stablization of the parents’ relationship with each other and the family unit; (3) become involved with the I.D.P. to work on parenting skills; (4) establish an acceptable way of life by learning budgeting, food shopping and homemaking skills; and (5) secure employment to support the family.

In order to implement the plan, both parents were to receive counseling from the mental health/mental retardation (MH/MR) office in Lock Haven; they were both to become involved with an agency known by the acronym STEP for budgeting, homemaking and parenting skills; and they were both to become involved with the I.D.P. to develop parenting skills. The natural father, Ronald, was to seek employment through CETA and the employment office. The parents were to be involved with all these other providers within three (3) months of May 4, 1981.

The Agency’s caseworker testified that she first reviewed the placement plan with both natural parents on May 7, 1981, and two further times with Donna to be certain she understood it. Donna said she understood the plan, and the caseworker gave her the telephone numbers of MH/MR, the I.D.P., the STEP office, the CETA office and the unemployment office.

Thereafter the caseworker again reviewed the plan with one or both natural parents on May 8, 1981, August 5, 1981, November 17, 1981, February 9,1982, May 11,1982, August 10, 1982, November 5, 1982 and January 18, 1983. On each occasion they refused to sign even though they understood what was needed, and either gave no reason for the refusal or indicated they wanted to await the outcome of the Petition for Custody which had been filed by the paternal grandmother sometime in August of 1981. The plan was finally signed by both parties sometime after January 18, 1983.

Visitation initially was to be twice a month at the Agency’s offices and the length of placement was projected to be one year.

The natural parents have only once exercised their right to appeal the plan to the Department of Public Welfare and in that appeal the objection was not to the plan itself but to the continued placement of the child at the Eisenhower home. The appeal was dismissed by the Department of Public Welfare for lack of jurisdiction.

The natural parents have not become involved with counseling at MH/MR even though on at least sixteen occasions beginning on March 31, 1981, and continuing up to January 18, 1983, the Agency discussed the need for counseling with one or both natural parents. On at least three occasions, the caseworker gave Donna the telephone number of MH/MR to encourage her to make an appointment, and on one occasion had her call from the Agency office to make an appointment, which appointment the parents failed to keep.

On at least twelve occasions one or both of the natural parents stated that counseling was unnecessary.

In early June, 1983, after the filing of the instant termination petition, the parents did meet with Colleen Bonnadeo, a counselor with MH/MR, and requested only marital counseling. Ronald stated to Ms. Bonnadeo that he did not need counseling but was there only because the Agency was requiring counseling as part of the placement plan.

Even though on at least fourteen occasions beginning with the date of March 31, 1981 through November 5, 1982, the Agency caseworker discussed the need for the natural parents to become involved with the I.D.P. to work on parenting skills, they have never participated in that program. Indeed, the natural father stated that he would not go to anyone for help in budgeting money.

On at least sixteen occasions beginning April 10, 1981, and continuing to January 18, 1983, the Agency caseworker discussed the need for adequate housing, and on at least three occasions gave Donna telephone numbers to call about a place to live. On one occasion, the caseworker gave Donna a list of six apartments available for rent.

Prior to February 9, 1982, the natural parents moved into a trailer near the paternal grandmother. On February 9, 1982 and ever since that date, the parents have refused to allow the Agency to inspect their residence. The natural mother told Ms. Bonnadeo that the trailer had only one bedroom and a living room, that the only cooking facility was a hot plate and that she has to do her dishes at her mother-in-law’s trailer.

The natural parents did get married during the foster home placement, but are now separated, with Ronald living in his mother’s trailer, and Donna remaining in the trailer they had occupied before the separation.

The natural father did work in the CETA program for a period of time in 1983 but was unemployed at the time of the hearing on the termination petition.

As we have already said, the paternal grandmother sought custody of Lisa in August of 1981, but following hearings on December 8, 1981, December 18, 1981 and January 20, 1982, the court ordered that primary custody remain in the Agency. The parties to this termination proceedings have stipulated that the notes of testimony in the custody case be made a part of the record in these termination proceedings.

After entry of the Order in the custody case on December 8, 1982, the Agency’s caseworker met with the natural parents to advise them that since the parents’ failure to follow the placement plan may have been due to their hope that the paternal grandmother would be granted custody, they would be given another opportunity. However, the parents made little or no effort to work on the plan after that meeting.

Throughout the foster placement, the parents have had the opportunity to visit with the child at least twice a month, and for a period of time weekly visits were arranged. The parents have missed only about twenty per cent (20%) of the scheduled visits.

The purpose of the visits was to allow the parents to see the child and to work on parenting skills. Unfortunately, and because of their complete lack of cooperation and/or interest, the parenting skills have not improved in over two and one-quarter (2V4) years of foster placement.

The caseworker and the foster mother were available during visits to help the parents with their skills.

The parents have never successfully fed the child a complete meal although feeding was always a part of most of the visits. The father’s typical reaction to the child’s crying during feeding was to walk away and sometimes just wait out in the car. The mother is unable to deal with the child’s crying during meals.

Both natural parents admitted at the time of the termination hearing that they were presently unable to care for the child or to have custody of the child.

In our analysis of appellants’ second claim of error concerning the alleged improper allowance by the court below of privileged communications, we have already discussed in part the testimony of Dr. Piper. Although that testimony, which we now incorporate herein, is pertinent to our present analysis of appellants’ first claim of error that the Agency failed to meet its burden of proof by clear and convincing evidence, we shall not repeat it. We shall, however, set forth those findings, made by us and the lower court concerning Dr. Piper’s testimony, which have not yet been referred to.

Neither parent has an adequate understanding of the child’s psychological needs and, sadly, the natural mother stated that she wanted the child removed from the foster home even if that would be harmful to the child.

Dr. Piper stated that counseling is mandatory before the parents could care for the child, and that the expressed attitude of the parents before the termination hearing bars the possibility of any effective counseling. According to Dr. Piper, the parents are not presently capable of caring for the child and were no more capable of caring for her at the time of the termination hearing, July 12,1983, than they were in April of 1981.

Dr. Piper stated that the placement service plan was a reasonable plan to bring about a reunion of the family, and that she knew of no other service reasonably available which should have been offered to the family. Further, Dr. Piper stated that a number of visits between the parents and the child should have created more of a relationship than she observed. The relationship between the child and the foster parents is a strong one according to Dr. Piper, and should not be disturbed since the parents are not capable of custody.

In the doctor’s opinion, adoption would be in the best interest of the child so long as the foster parents, the Eisenhowers, are the adopting parents. Dr. Piper also testified that a placement with the paternal grandmother would not be in the child’s best interests.

The natural father told Dr. Piper that he did not think that he and the mother could care for the child until she was about fifteen (15) years of age.

The paternal grandmother admitted that the placement service plan was reasonable and needed by the parents.

The Agency’s caseworker stated that no improvement has been seen in the ability of the parents to care for the child over the two and one quarter (2V4) years of foster placement. The parents are still lacking parental capabilities in the same way as in April of 1981, and no significant progress has been made since then.

Nothing has occurred which would indicate that continued placement would allow the natural parents to improve conditions, and the Agency knows of no other services which it could reasonably offer the parties.

The foster parents will be the adoptive parents in the event parental rights are finally terminated and custody will remain with the Agency until finalization of adoption.

Johnathan Embick, the parental grandmother’s 17 year old son,- moved to the home of another relative in the New Jersey Shore area shortly before the termination hearing.

The natural parents and the paternal grandmother want custody transferred to the paternal grandmother, who would then be responsible for training the parents, and deciding when to return the child to them.

At the time of the hearing, Donna already had given birth to a second child, April Katrina, born June 7, 1982. Custody of April was transferred to the paternal grandmother.

The learned hearing judge in the court below first discussed the grounds for termination under the provisions of 23 Pa.C.S. § 2511(a)(2) (See p. 19 supra for entire text of this Section), and correctly observed that three requirements must be met before the rights of parents may be terminated: (1) there must be repeated and continued incapacity, abuse and neglect or refusal with respect to the child; (2) the parental incapacity, abuse and neglect or refusal causes that child to be without essential parental care, control or subsistence necessary for his physical or mental well-being; and (3) the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.

With regard to the first requirement, the hearing court stated: “It does not strain reality to conclude that it has been established by clear and convincing evidence that both incapacity and neglect by both parents has been established.” The hearing court considered the previous voluntary placement of the child with the Agency, together with the neglect and lack of parenting which existed for the first three months of Lisa’s life, as a basis for finding incapacity and neglect in both parents. In further support of the first requirement, the court also considered the lack of developmental skills in the child brought about as a result of her environment, together with the other evidence showing that neither parent has any basic conception of the needs of a small child. The court also questioned whether the parents have the inclination or ability to provide for these needs.

With regard to the second requirement, the hearing court found that the parental incapacity and neglect or refusal to provide adequate parenting caused Lisa to be without essential care, control or subsistence.

In discussing the third requirement, the hearing court recognized that the placement plan prepared by the Agency has not been met, and that the appellants never made a good faith effort to comply with various aspects of the plan. That court correctly observed that appellants rejected any attempt to receive or cooperate with counseling for the purpose of developing parental skills, and further that they demonstrated an attitude of non-compliance with the various aspects of the placement plan. The hearing court found that, in particular, no efforts have been made to ameliorate the appellant/natural mother’s temper and lack of patience in dealing with a small child. The fact that appellants were separated at the time of the hearing demonstrated their lack of progress in stabilizing their own relationship. After correctly observing that appellants failed to become involved with the Infant Development Program to improve parenting skills, the lower court concluded, “[Tjhere is very little present in the case on behalf of the natural parents to suggest that they can remedy their incapabilities, or more importantly, that they are inclined to want to do this.” Lower court adjudication, filed June 1, 1984, at 17.

The hearing judge next discussed the grounds for termination under the provisions of 23 Pa.C.S. § 2511(a)(5) (See pp. 19-20, supra for entire text of this Section), and recognized that five requirements must be met before the rights of parents may be terminated: (1) the child must have been removed from its parents for at least six months; (2) the conditions which led to the initial removal continue to exist; (3) the parents cannot or will not remedy such conditions within a reasonable time; (4) services or assistance reasonably available to the parents are not likely to remedy the conditions which led to the removal within a reasonable period; and (5) termination would best serve the needs and welfare of the child.

The court below found all five requirements present. There is no question that Lisa has been in foster care for more than six months. With regard to the second requirement, the court below concluded that the conditions which led to Lisa’s placement and removal continue to exist, and that appellants have failed to develop, to any meaningful degree the requisite parenting skills and attitudes which led to the conditions of placement.

In discussing the third requirement the lower court stated that it was evident that the appellants cannot or will not remedy these conditions within a reasonable period of time. The hearing court referred to the testimony of Dr. Piper, with regard to her attempts to work with the appellants, as important in that it demonstrated little motivation to improve. Instead, the court observed that appellants’ “attitude is one of resistance predicated upon the erroneous notion that they are capable parents and need no outside assistance.” Lower court adjudication, filed June 1, 1984, at 18.

With regard to the fourth requirement, the court below found that, primarily because the appellants are unwilling or unable to utilize the services or assistance available to them, it was obvious that such services or assistance as were available were not likely to remedy the conditions which led to removal or placement of Lisa within a reasonable period of time.

Finally, with regard to the fifth requirement, the court below concluded that termination of parental rights would best serve the needs and welfare of Lisa. (See § 2511(b) supra, p. 20). This conclusion was supported by the opinion of Dr. Piper, and by the testimony of Ronald, the natural father, that neither he nor Donna could take care of the child until she reached age fifteen, which the court found to be an unreasonable amount of time for Lisa to wait for a meaningful relationship with her biological parents.

Thus, the court below held that the provisions of both 23 Pa.C.S. § 2511(a)(2) and (a)(5) were applicable, and that the Agency had proven its case for involuntary termination of parental rights by evidence which was both clear and convincing.

Following a comprehensive review of the evidence, we conclude that the court below acted within its discretion in terminating appellants’ parental rights.

We do not reach this conclusion lightly or in haste. These are truly difficult and heart-rending cases which “represent a delicate tension between two of our society’s most fundamental precepts: the right of a parent to exercise the rights and obligations of a parent toward his child, free from governmental intrusion, and society’s interest in the nurturing, care, safety and training of children.” In re Adoption of James J., supra, 332 Pa.Superior Ct. at 492, 481 A.2d at 895.

Appellants would have us believe that the underlying problem in this case was the Agency’s ineffectiveness in providing them with necessary services or assistance in developing parental skills. Nothing could be further from the truth. It is beyond question that appellants not only failed to take advantage of the Agency’s facilities but, in fact, actively resisted the Agency’s attempts to provide such services. Ronald, the natural father, was adamant in his repeated assertion that he was not in need of services and, in several respects, absolutely refused any assistance.

The court below was correct in rejecting appellants’ assertions that they achieved the goals set forth by the Agency in the various placement plans. We further agree with the court below that there is nothing in the record “except demonstrated instability on behalf of both of the natural parents and their claim to having developed adequate parenting skills depends solely upon their own testimony which the Court rejects in the face of the evident facts in the case.” Lower court opinion, filed April 1, 1985, at 3. Our review of the evidence suggests that appellants’ relationship between themselves is as stable as jello, and that their relationship with the paternal grandmother, on whom they heavily rely as a source of assistance in developing parenting skills, is at best suspect.

Appellants’ argument that Dr. Piper indicated that Ronald could develop parenting skills after one or two years of intensive counseling is correct as far as it goes. However, the record clearly shows that Dr. Piper also testified that, because of Ronald’s admitted hostility toward receiving assistance, she did not believe that he would ever develop adequate parenting skills with respect to Lisa. But even if we were persuaded, and we are not, that Ronald could develop these skills, he himself indicated it would take fifteen years. The only evidence in this record concerning appellants’ ability to improve their parenting skills was their own testimony, which was in conflict with most of the other testimony and evidence regarding their efforts. The court below, as was its right to do, gave little or no credence to appellants’ testimony.

In Appeal of Diane B., 456 Pa. 429, 433, 321 A.2d 618, 620 (1974), our supreme court stated:

A parent has the responsibility to provide care, control, and subsistence for his or her child, and a ‘duty to love, to protect and to support [the] child.’ Wischmann Adoption Case, 428 Pa. 327, 331, 237 A.2d 205, 207 (1968). This parental obligation ‘is a positive duty and requires affirmative performance.’ Smith Adoption Case, 412 Pa. 501, 505, 194 A.2d 919, 922 (1963); see Owen Adoption, 51 Pa.D. & C.2d 761, 767-768 (C.P.Mercer County 1971).

It has recently been stated:

‘Parenthood is not ... a mere biological status, or passive state of mind which claims and declines to relinquish ownership of the child. It is an active occupation, calling for constant affirmative demonstration of parental love, protection and concern____ [A parent] must exert himself to take and maintain a place of importance in the child’s life, and must exercise reasonable firmness in declining to yield to obstacles. Otherwise, he cannot perform the job of parent, and the parent-child relationship will deteriorate as the absent parent more and more gives his thoughts, attentions, concern and priorities to his own life and associates.’
In re: Adoption of J.R.F., 27 Somerset L.J. 298, 304-305 (Pa.C.P.1972)

In Lookabill v. Moreland, supra, 336 Pa.Superior Ct. at 524, 485 A.2d at 1206, our court stated:

The Pennsylvania Supreme Court has often observed that parental obligations require a continuing interest in the child and rest affirmatively on the parents. Matter of Adoption of David C., 479 Pa. 1, 387 A.2d 804 (1978) [disapproved, Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599]; In re W.M. III,, 482 Pa. 123, 393 A.2d 410 (1978). The parent must exert a genuine, sincere effort to establish and maintain communication, association, and a place of importance in his or her child’s life. Matter of Adoption of David C., supra. Although favorable circumstances may enable some parents to achieve this goal with little effort, the pertinent inquiry is not the degree of success a parent may have had in reaching his or her child, but whether he or she has utilized all available resources to preserve the parental relationship. In re Adoption of B.D.S., 494 Pa. 171, 431 A.2d 203 (1981).

The Agency having proven by clear and convincing evidence the grounds and requirements of both 23 Pa.C.S. § 2511(a)(2) and (5), we affirm the order terminating appellants’ parental rights.

Lisa should now be given the opportunity to extricate herself from the transitional state of foster or institutional care, and establish a true parent-child relationship through adoption.

Order affirmed.

      . Act of October 15, 1980, P.L. 934, No. 163, § 1, as amended, 23 Pa.C.S. § 2101 et seq.

      . Appellants also objected to the testimony of Colleen M. Bonnadeo, a caseworker for the Divine Providence Mental Health Center. The basis for the objection was predicated on a confidential relationship between counselor and client. Appellants have relied on the statute above set forth, and it is clear that the statute is not applicable because Ms. Bonnadio is not a licensed psychologist. We note further that the issue is waived for failure to comply with Pa.R.A.P. 2116 [requirement to set forth statement of questions involved in appellate brief].

      . "N.T.T.H.” refers to the notes of testimony taken at the termination hearing on July 12, 1983.

      . See footnote 12 infra.

      . In the Adjudication and Decree Nisi, the court below found as Finding of Fact No. 72 that the natural father had an I.Q. of 84 and that his mental ability to care for a child is borderline. Although this finding was not challenged by appellants, we have not found support for this finding in the record before us, and therefore it will be disregarded.

        . Commonwealth v. Goldblum, 498 Pa. 455, 447 A.2d 234 (1982), Commonwealth v. Garcia, 478 Pa. 406, 387 A.2d 406 (1978), and Commonwealth v. Petrino, 332 Pa.Super. 13, 480 A.2d 1160 (1984), cert. denied, — U.S. —, 105 U.S. 2149, 85 L.Ed.2d 505, were all cases wherein testimony was sought to be excluded on the basis of the psychologist-client privilege. 42 Pa.C.S. § 5944. However, all three cases were criminal proceedings (the defendant in each case being charged with murder); further, in all three cases it was clear that the statements sought to be excluded were made by a person who was clearly being treated by a psychiatrist/psychologist, and the relationship of physician-patient or psychologist-client was never in question.
      In the case of In re B, 482 Pa. 471, 394 A.2d 419 (1978), the privilege which was implicated was the "physician-patient” privilege, not the "psychologist-client” privilege. In In re B, our supreme court held that the physician-client privilege did not prohibit the disclosure of certain psychiatric records; however, in a plurality opinion, the court concluded that the testimony concerning those records was barred by the patient’s constitutional right to privacy. In the case before us, appellants never challenged the introduction of Dr. Piper's testimony on any ground other than the statutory privilege, and thus the constitutional issue is not properly before us. However, even if the constitutional issue were properly before us, our decision would be no different. "Constitutional analysis involves a balancing of competing interests. A court’s duty does not end once the individual’s interests are identified. The government’s interests must also be identified and weighed____ If the government’s interests are compelling, the individual’s constitutional right to privacy may be required to yield, provided that the government has not employed unnecessarily broad means for achieving its purposes.” Commonwealth ex rel. Platt v. Platt, 266 Pa.Super. 276, 307, 404 A.2d 410, 426 (1979) (Spaeth, J. dissenting). Here we would hold that the state’s interest in the proper placement of children, as well as the state's interest in keeping families intact whenever possible, is an important and compelling interest which outweighs the individual's right to privacy.

      . For an excellent discussion of the statutory privilege on child placement cases, see, Guernsay, The Psychotherapist-Patient Privilege on Child Placement — A Relevancy Analyses, 26 VILL.L.REV. 955 (1981).

      . "N.T.C.H.” refers to the notes of testimony of a custody hearing. The custody petition was filed by the paternal grandmother for custody of Lisa. Although it is not clear from the record, the custody petition was filed sometime in August of 1981. From our own independent review of the notes of testimony on the custody hearings, held on December 8 and 9, 1981 and January 20, 1982, we agree with the court below that the natural parents, Ronald and Donna, signed a consent to custody of Lisa in favor of petitioner, paternal grandmother, only after they were told by the Agency that in view of their lack of cooperation with implementation of the service placement plan that termination of parental rights, and ultimately the adoption of Lisa might occur. (See Opinion of Court below in Custody Case at p. 5. See also N.T.C.H. p. 11, December 8, 1981, Testimony of Ronald). The court below filed an Opinion and Order on December 8, T982 denying the paternal grandmother’s petition for custody, and directing that primary custody remain with the Agency. No appeal was ever taken from this Order. All parties have agreed that the N.T.C.H. be made a part of this record.

      . The hearing judge in the court below was the Honorable Carson V. Brown, the President Judge of Clinton County. Judge Brown also presided at the custody hearings in this matter. We should note also that Judge Brown appointed an attorney to represent the interests of the minor. The child’s advocate was Merritt E. McKnight, Esquire, a member of the Clinton County Bar.

      . Although the “Order" entered by the court below on March 30, 1985 was not referred to as a “Final Decree”, it is clear that the effect of this Order was the same as a “Final Decree”, and certainly appellants have considered it as such. Aside from the fact that this proceeding was initiated over 2V2 years ago, in the interest of judicial economy, we shall consider this appeal as being taken from entry of Final Decree. In this connection we are reminded of Justice Larsen’s admonition in In re Davis, 502 Pa. 110, 146, 465 A.2d 614, 632-33 (1983) wherein he expressed a widely-held, compassionate and, we feel, correct view concerning delays in child placement cases:
      The courts, social agencies, and all the adults concerned with child placement must greatly reduce the time they take for decision. While the taking of time is often correctly equated with care, reasoned judgment, and the assurance of fairness, it often also reflects too large and burdensome caseloads or inefficiently deployed resources. Whatever the cause of the timetaking, the costs as well as the benefits of the delay to the child must be weighed. Our guideline would allow for no more delay than that required for reasoned judgment. By reasoned judgment we do not mean certainty of judgment. We mean no more than the most reasonable judgment that can be made within the time available — measured to accord with the child’s sense of time. Therefore to avoid irreparable psychological injury, placement, whenever in dispute, must be treated as the emergency that it is for the child.*

        (* Three months may not be a long time for an adult decision-maker. For a young child it may be forever.)

      . Our review of the record reveals that the length of placement was accepted for six months — not one year. (N.T.T.H. at 18)

      . -Appellants say in their brief to this court that Donna has given biilth to a third child who is also in the care of the paternal grandmpther. However, the record does not support this, and we are bound by the record. But even so, assuming that Donna did have a third child, we find appellant’s argument that siblings should not be separated but instead raised together to be disingenuous to say the least. Lisa, except for her first three months of misery and neglect, has for the five years of her life lived exclusively with the Eisenhowers; therefore, no "separation" of siblings is involved here. Just as importantly, appellants do not argue that they want Lisa; instead, they say that the paternal grandmother should assume the burden of rearing another child.

      . In this review, we have placed little or no reliance on appellants’ I.Q. scores. We are guided by our supreme court’s analysis in In re William L., 477 Pa. 322, 351-52 n. 26, 383 A.2d 1228, 1243 n. 26 (1978):
      Experts generally agree that socially and culturally disadvantaged people tend to score lower on standardized intelligence tests, which suggests that cultural bias may affect the result. See Galliher, Termination of the Parent-Child Relationship: Should Parental I.Q. be an Important Factor?, Law and the Social Order 855, 865-66 (1973). Moreover, ‘No Study has ever documented the premise that unintelligent parents are unable to give love and affection.’ Id. at 871. Consequently, we consider appellant’s test scores only as a factor among many relevant to her incapacity to meet the essential needs of her children.

      . Appellants' theory of "assistance” is to award custody of Lisa to the paternal grandmother. As we have already indicated, the court below, following three hearings, denied the parental grandmother’s petition for custody of Lisa and no appeal was ever taken from that decision. Here we do not review that custody decision; rather, our inquiry is limited to a determination of whether or not the Agency met its burden of proof, by evidence which was clear and convincing, that the requirements of 23 Pa.C.S. § 2511(a)(2) and/or (a)(5) have been met.


author: WIEAND, Judge:

text:
    506 A.2d 471
    Chaney R. REESE, Appellant, v. Edith F. REESE, Appellee.
    Superior Court of Pennsylvania.
    Argued Dec. 17, 1985.
    Filed March 21, 1986.

      Anthony J. Gerace, Jr., State College, for appellant.
    Ronald Katzman, Harrisburg, for appellee.
    Before WIEAND, OLSZEWSKI and WATKINS, JJ.
   WIEAND, Judge:

Where a divorce court, pursuant to a husband’s request, has ordered a division of marital property owned by husband and wife as tenants by the entireties, and the parties, without appeal, have acted in reliance thereon, what is the. effect of the wife’s death before a decree in divorce has been entered? The divorce court denied a motion to strike the order of distribution, and also a monetary judgment which had been entered pursuant thereto, and enjoined the surviving husband from interfering with the disposition of property in the manner directed by the prior court order. The husband appealed.

Chaney R. Reese and Edith F. Reese were married on May 8, 1954. During succeeding years they worked hard and were able to accumulate substantial property to which they took title jointly as tenants by the entireties. Included, among other things, were a dairy farm in Centre County, one hundred acres of land in Blair County, and two citrus groves in Florida. The parties also owned Alva Trucking, Inc., whose corporate shares were owned 51% by Chaney and 49% by Edith. In addition, they owned a substantial amount of farm equipment, livestock and two automobiles. On December 2, 1980, Chaney filed an action in divorce which contained a request for equitable distribution of all marital property. At Chaney’s specific request, the trial court agreed to hear the property claims without prior reference to a master. On April 5, 1984, a comprehensive opinion was filed and an order entered as follows:

1. The following property is awarded to Chaney R. Reese, free and clear of any interest or claim on behalf of Edith F. Reese:
(a) The property, located in Alva, Florida, referred to in this Opinion as the Florida Property, complete with all improvements, crops, equipment and personalty presently located thereon.
(b) The stock, and assets, of Alva Trucking, Inc.
(c) The right to receive all income from agreements made with the Brodzina brothers, which has not yet been paid pursuant to the agreements. (This sum is not intended to, and does not include the check for $20,000.00 made payable to both parties, which was received as a result of the sale of some of the subject cattle at auction).
(d) The life insurance policies, with the present cash value of $4,100.00.
(e) The Oldsmobile he is presently driving.
2. The obligation to pay off Plaintiffs debt to Farmer’s Community Bank is the sole responsibility of Chaney R. Reese.
3. The following property is awarded to Edith F. Reese, free and clear of any interest or claim on behalf of Chaney R. Reese:
(a) The property, located in Halfmoon Township, referred to in this Opinion as the Halfmoon Farm, complete with all improvements, crops, equipment and personalty presently located thereon.
(b) The property, located in Snyder Township, referred to in this Opinion as the Bald Eagle Property, complete with all improvements, crops, equipment and personalty presently located thereon.
(c) The stock in PCA and the FLB, which has been received, or will be received as a result of the financing agreements with these organizations.
(d) The check for $20,000.00 which is payable to both parties, which was received when some of the cattle conveyed to the Brodzina brothers was sold at auction.
(e) The Datsun she is presently driving.
4. The obligation to pay off the following debts is the sole responsibility of Edith F. Reese:
(a) All money presently owed to Protection Credit Association.
(b) All money presently owed to the Federal Land Bank.
5. The crops which are forthcoming, as a result of the parties’ participation in the payment-in-kind program shall be the sole property of Edith F. Reese.
6. The right to receive all income from the contracts involving the sale of crops presently growing in Florida shall belong exclusively to Chaney R. Reese.
7. The funds which were discussed in this Opinion, as having already been appropriated for personal use by each party ($7,000.00 by Plaintiff; $1,800.00 by Defendant) shall be retained by each party, respectively.
8. All transfers necessary to effectuate this Order, including title to the stock in Alva Trucking, Inc., and the title to the Chevy one ton pickup presently titled in both names, are to be made within sixty (60) days of the effective date of this order. All costs incurred in effectuating this Order are to be shared equally by the parties.
9. Chaney R. Reese is required to pay to Edith F. Reese, her heirs, successors or assigns, no later than December 31, 1984, the sum of One Hundred Seventy Two Thousand Nine Hundred Twenty Dollars ($172,-920.00) plus Fifty Two Dollars and Eleven Cents ($52.11) for each day that elapses between the effective date of this Order, and the date that this debt is paid in full.

Edith filed exceptions to this order; Chaney did not. Although several technical corrections were made as a result of Edith’s exceptions, there were no substantive changes in the decree of distribution. Thereafter, no appeal was filed, and the parties took sole possession of the properties awarded to them. On December 14, 1984, Edith died. She died a married woman; a decree in divorce had not been granted.

On January 11, 1985, pursuant to a petition for special relief filed on behalf of Edith’s estate, the court entered a decree nisi directing Chaney to “perform in accordance with the ... order dated April 5, 1984, regarding the equitable distribution of the marital property, and to refrain from entering upon, interfering with, or disposing of the property of Edith F. Reese____” Chaney filed exceptions and a petition to vacate the order of equitable distribution. Both were dismissed on April 8, 1985. This appeal followed.

The Divorce Code of 1980 established a comprehensive scheme for the dissolution of marriage, the distribution of marital property, and the resolution of related economic claims. Within that scheme it is contemplated that “equitable distribution of property acquired during the marriage occurs only upon divorce____” Bacchetta v. Bac chetta, 498 Pa. 227, 235, 445 A.2d 1194, 1198 (1982) (emphasis added). “The determination of economic claims flows from the divorce decree, which is the sine qua non of any consideration of economic matters.” Pastuszek v. Pastuszek, 346 Pa.Super. 416, 424, 499 A.2d 1069, 1073 (1985). “This Court has made it clear that ‘[ujnless and until a valid decree in divorce has been entered, there can be no equitable distribution of marital property.’ ” Drumheller v. Marcello, 351 Pa.Super. 139, 142, 505 A.2d 305, 306 (1986) quoting Laxton v. Laxton, 345 Pa.Super. 450, 455, 498 A.2d 909, 912 (1985). See also: Dech v. Dech, 342 Pa.Super. 17, 492 A.2d 41 (1985); Mandia v. Mandia, 341 Pa.Super. 116, 491 A.2d 177 (1985). Since a marriage may be dissolved by death or divorce, Haviland v. Haviland, 333 Pa.Super. 162, 163, 481 A.2d 1355, 1356 (1984), a pending divorce action is abated by the death of one of the parties, for after death there is no marital relationship remaining to be dissolved. See: Drumheller v. Marcello, supra, 351 Pa.Superior Ct. at 143, 505 A.2d at 306; Haviland v. Haviland, supra. Economic claims for equitable distribution of marital property are likewise abated by the death of one of the spouses prior to the entry of a divorce. Drumheller v. Marcello, supra, 351 Pa.Superior Ct. at 142, 505 A.2d at 306-307; Pastuszek v. Pastuszek, supra, 346 Pa.Superior Ct. at 424, 499 A.2d at 1073; Haviland v. Haviland, supra, 333 Pa.Superior Ct. at 164, 481 A.2d at 1357. See also: Oswald v. Olds, 342 Pa.Super. 495, 493 A.2d 699 (1985).

It seems clear, therefore, that the Chaney divorce action was abated by Edith’s death. It is also clear that the entry of a decree of equitable distribution prior to the entry of a divorce decree was ill-advised. See: Dech v. Dech, supra. Still, neither party objected to the untimeliness of the distribution order, and both parties appear to have acted in reliance upon it. Chaney requested the court to hear his request for equitable distribution without prior submission to a master. He filed no exceptions to the court’s decree of distribution and filed no appeal from the order which, at least on its face, appeared to be a final order of distribution. Thereafter he took sole possession of the Florida property awarded to him by the court and offered no defense to the monetary judgment entered against him pursuant to the order of distribution.

When appellant failed to file an appeal from the distribution order which, according to its terms, was a final order, the order became binding upon the parties.

Appellant argues, however, that the trial court lacked jurisdiction to enter an order awarding equitable distribution of marital property before a decree in divorce was entered. The courts of common pleas have been given jurisdiction to hear and decide divorce actions and related economic claims by Section 301(a) of the Divorce Code of 1980. A claim for equitable distribution, it is true, is not to be decided separately but in conjunction with the granting of a divorce decree. To enter a decree of equitable distribution prior to a divorce decree, as we have observed, is improper. This is primarily so because, as this case demonstrates, if a party dies before a decree in divorce is entered, trying to remove the parties from positions taken following a decree of distribution and restore them to positions occupied prior to such a decree would be like putting Humpty Dumpty together again. See: Dech v. Dech, supra, 342 Pa.Superior Ct. at 22, 492 A.2d at 43.

In this case the appellant-husband invoked the jurisdiction of the court, received the relief which he requested, and acted upon the court’s order. Under these circumstances he will not be heard to say that the court lacked jurisdiction to act. He will not be permitted to “blow hot and cold” by now taking a position inconsistent with that by which he previously induced the trial court to act in distributing the marital property. Cf. Kazin v. Kazin, 81 N.J. 85, 94, 405 A.2d 360, 365 (1979). The rule is clear that where a “court has general jurisdiction of the subject matter of a controversy, a party at whose instance a judgment is rendered or a decree made is not entitled to contend in a collateral proceeding that it is invalid for want of jurisdiction in some particular.” 28 Am.Jur.2d Estoppel and Waiver § 73 (1966). See: Kazin v. Kazin, supra (spouse obtaining foreign divorce decree cannot collaterally attack jurisdiction of court which rendered it); Laird v. State, 79 Tex.Crim. 129, 184 S.W. 810, 3 A.L.R. 522 (1916) (divorce decree not subject to attack on jurisdictional grounds by spouse who obtained it where, in criminal action, former wife’s competency as witness is in issue). See also: Starbuck v. Starbuck, 173 N.Y. 503, 66 N.E. 193 (1903); Julier v. Julier, 62 Ohio St. 90, 56 N.E. 661 (1900). Accord: Rosen v. Sitner, 274 Pa.Super. 445, 418 A.2d 490 (1980). See generally: 14 P.L.E. Estoppell § 41 (1959). It was because of this rule and consistently therewith that the trial court observed:

Up and until the death of the Defendant, both parties cooperated with the equitable distribution. Both parties willingly agreed to bifurcate the economic issues from the entire divorce action and to permit the equitable distribution to occur before the issuance of a final divorce decree. Neither party requested that the finality of the Equitable Distribution Order be contingent and effective upon the issuance of the final divorce decree. As a matter of fact, Plaintiff recognized the finality and permanancy [sic] of the equitable distribution in his Request for Special Relief of September 12, 1984, wherein he stated that the Equitable Distribution Order “is controlling upon the parties and equitably adjusts their respective property interests and financial obligations to one another and obviously does not contemplate any further obligation by Chaney R. Reese to pay support payments to Edith F. Reese[.]” Now, only after the death of the Defendant, and in an attempt to have title to the marital property revert to him as the survivor to a tenancy by the entireties, Plaintiff does not recognize the order as being final and permanent, but instead only as contingent upon the issuance of a final divorce decree^]

Trial court opinion of April 8, 1985 at 3 (emphasis added).

We hold, therefore, that one who requests pre-divorce equitable distribution, who receives the relief he has requested, and who acts to receive the benefits of an order distributing marital property is thereafter estopped from denying the jurisdiction of the court to enter the order prior to divorce. The efficacy of the decree of equitable distribution is not destroyed by the intervening death of the other party and the resulting abatement of the action for divorce. The trial court correctly refused to set aside and vacate the order of April 5, 1984 which distributed marital property.

The order is affirmed.

      . Act of April 2, 1980, P.L. 63, No. 26, 23 P.S. § 101 et seq.


author: ROWLEY, Judge:

text:
    506 A.2d 475
    COMMONWEALTH of Pennsylvania v. Albert R. CARUSONE, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 8, 1985.
    Filed March 21, 1986.

      Peter Pietrandrea, Ellwood City, for appellant.
    Ahmed Aziz, Assistant District Attorney, Sewickley, for Commonwealth appellee.
    Before SPAETH, President Judge , and BROSKY and ROWLEY, JJ.

       Former President Judge SPAETH did not participate in the final decision in this case.

   Opinion of the Court

ROWLEY, Judge:

This is an appeal from a judgment of sentence imposing a sentence of eleven and one half to twenty three months imprisonment for aggravated assault upon two men. Appellant raises eleven issues on appeal. Issues III through VI as set forth in appellant’s statement of questions involved have been adequately discussed and correctly decided by the suppression court. (Suppression Court memorandum opinion.) Issues VII through XI have been adequately discussed and correctly decided by the trial court. (Trial Court opinion of December 27, 1983.) We will address the remaining two issues.

I.

Appellant argues that the trial court violated his constitutional right to be present at the suppression hearing by conducting the suppression hearing in his absence. On August 3, 1983, in response to an omnibus pre-trial motion filed by appellant’s counsel of record, a suppression hearing was held. Appellant was not present for the hearing, although his counsel was present and fully participated in the hearing. The reason for appellant’s absence was not stated on the record by counsel; nor did his counsel object to the court proceeding with the hearing in the absence of appellant.

The commentary to Standard 4-3.6 of the ABA Standards for Criminal Justice, the Defense Function, states:

many of the rights that the law guarantees to an accused person can be vindicated only by prompt action. One of the lawyer’s most significant tasks is to inform the client of the nature, extent, and importance of constitutional and legal rights and to take the procedural steps necessary to protect them.

Thus defense counsel had the obligation to inform appellant of the right to be present at the hearing, as well as the time and place of the hearing; and in appellant’s absence, he had the responsibility to take the procedural steps of objecting to the continuation of the hearing without his client if in fact his client either was unaware of the hearing or if appellant had intended to be present and was not.

The Code of Professional Responsibility states that an attorney may waive or fail to assert a right for his client. 42 Pa.C.S. D.R. 7-101(B)(l). The Code also provides that an attorney is to be above-board with the court. 42 Pa.C.S. E.C. 7-36. Thus we presume that counsel deliberately decided not to object to the suppression hearing being conducted in appellant’s absence and that counsel was above-board with the court at the suppression hearing and therefore did not need to mention his client’s absence nor his right to be present. However, by asserting on appeal that appellant was denied his constitutional right to be present, counsel has demonstrated his deception of the suppression court and the appellate court by raising an issue of which he did not advise the suppression court and in which there is no merit. If counsel believed that the issue had merit, counsel had the obligation to raise it immediately at the commencement of the suppression hearing.

In Commonwealth v. Finfrock, 257 Pa.Super. 555, 391 A.2d 621 (1978), Judge Spaeth, in his concurring opinion, stated:

A trial shouldn’t be a game, for a game is a diversion, an activity engaged in for amusement. Rules appropriate to a diversion are not appropriate to a lawsuit, in which only the cynical or blood thirsty can find amusement____ Nevertheless, sometimes a court will find, to its discomfort, that it can only decide a lawsuit as though it were a game; the issues will have been developed in such a way that no other approach is left open to the court. This is most likely to happen when counsel has tried the lawsuit as though it were a game. Instead of using the rules of procedure ... in the spirit in which they were written ... counsel has sought to exploit or manipulate the rules in the hope of achieving a victory that in good conscience his client is not entitled to.

Id., 257 Pa.Superior Ct. at 560, 391 A.2d at 623.

Here, too, counsel has attempted to make the pre-trial proceedings a game, only instead of manipulating the rules of procedure, he has tried to manipulate constitutional rights. Counsel kept the reason for his client’s absence from the suppression hearing off the record, while he thoroughly cross-examined witnesses and called his own witnesses at the suppression hearing in an attempt to have the case thrown out before trial. When this tactic failed and his client was subsequently convicted, he only then asserted, on behalf of his client, the constitutional right to be present at the suppression hearing. By so doing, counsel hopes to obtain a new trial and ultimately another chance at acquittal. In good conscience, appellant is not entitled to a second chance.

There is not the slightest foundation for questioning appellant’s waiver of his right to be present. Constitutional issues can be waived. Commonwealth v. Romberger, 474 Pa. 190, 378 A.2d 283 (1977). The burden of proving by a preponderance of the evidence a valid waiver of a constitutional right is on the Commonwealth. Commonwealth v. Hailey, 470 Pa. 488, 368 A.2d 1261 (1977). The Commonwealth has easily met this burden. Counsel’s actions and verbal ommissions — not telling the court where his client was, not objecting to the hearing being conducted without his client, and thoroughly participating in the hearing — unmistakeably asserted the waiver because counsel thereby represented to the court that appellant’s absence was a deliberate choice and a strategic decision.

To say on this record that there was no waiver is sheer speculation. The burden is on appellant to both argue and assert at least some factual basis for concluding that the waiver was not voluntary and knowing. Counsel for appellant has not raised this issue at all and there is not a shred of evidence to support such an argument. If appellant honestly believes that he did not knowingly and voluntarily waive his right to be present, his remedy is to file a Post Conviction Hearing Act petition raising the incompetancy of counsel and the dereliction by counsel of his responsibility toward his client.

II.

Appellant also contends that the trial court erred by not submitting to the jury his requested points for charge Nos. 14 through 17. The trial court adequately discussed and correctly decided that point No. 14 was covered by appellant’s points Nos. 11 and 13 which were read to the jury. Points Nos. 15 and 16 concerned the defense of justification to protect oneself as opposed to protecting another. The trial court properly refused these points because appellant presented no evidence even to suggest that the victims were doing anything which would require him to defend himself. Appellant’s sole defense was that it was necessary to shoot the victims in order to protect his father.

Point No. 17 was a request for a directed verdict. A request for a directed verdict is by definition made to the court, not the jury. More importantly, however, there is no basis for a directed verdict. Appellant argues that the reason for the directed verdict was that the Commonwealth failed to prove its allegations in Counts 1, 3, and 5 of the Information. According to appellant, these counts charge that the victim was one “George Johnson” and that Paul Dodds Johnson, the person who testified at trial as being the victim, unequivocally stated that he was not George Johnson. While it is true that Paul Dodds Johnson stated that he was not George Johnson, it is not true that the Information alleges that the victim was George Johnson. The Information states that the victim is one “Walter Johnson”. Neither Paul Dodds Johnson nor appellant deny that the “Walter Johnson” whose name appears on the Information is Paul Dodds Johnson. Appellant’s claim is entirely devoid of merit.

Judgment of sentence affirmed.

      . The Commonwealth, in its brief at page 2, states that counsel for appellant told the District Attorney outside the courtroom immediately before the suppression hearing that appellant would not be present because he had to work. Although this may be true, nothing in the certified record indicates the reason for appellant’s absence from the hearing, and therefore, we cannot consider the statement in the Commonwealth's brief.