author: CERCONE, Judge:

text:
    672 A.2d 1380
    Laura KESSLER, Appellant v. Nathaniel David HELMICK.
    Superior Court of Pennsylvania.
    Argued Sept. 28, 1995.
    Filed March 20, 1996.

      John B. Dunn, Stroudsburg, for appellant.
    Holly L. Setzler, West Chester, for appellee.
    Before: KELLY, JOHNSON and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from an order awarding child support and alimony pendente lite and denying appellant’s petition for spousal support. We affirm in part and vacate in part.

The relevant facts were aptly stated by the lower court:

Plaintiff commenced the present action by filing a complaint against Defendant for child support, spousal support and alimony pendente lite. Hearings were held on Plaintiffs complaint before the Support Master on April 29,1992, June 23, 1992, September 3, 1992, and February 22, 1993. Following the Master’s hearings a Support Order was entered against Defendant requiring him to pay $670.00 per week in child support for the parties’ two children, and $200.00 per week in alimony pendente lite to Plaintiff.
Both parties have filed Exceptions to the Master’s Report. These Exceptions are presently before the court for disposition.

Trial Court Opinion, February 15,1995, at 1. The lower court dismissed both parties’ exceptions, and confirmed the master’s recommendation as a final order with two exceptions. The lower court removed the six month time limit on alimony pendente lite which the master had imposed. The court also ordered that appellant pay “an additional $100.00 per week on the arrearages until paid in full.” Appellant (wife) filed this timely appeal in which she raised the following issues:

1. Did the lower court abuse its discretion in imputing a monthly income of $17,750.00 to appellee (husband) and $2,400.00 to appellant?
2. Did the lower court abuse its discretion in failing to award spousal support and in failing to award support or alimony pendente lite from the date of separation, October, 1990, and in failing to base its amount of support and alimony pendente lite upon an appropriate formula?
3. Did the lower court abuse its discretion by permitting appellee to pay arrearages in weekly increments?
4. Did the lower court abuse its discretion in finding that the children, age nine and thirteen, will not require child care and child care expenses?
5. Did the lower court abuse its discretion in failing to find that appellee should pay the unreimbursed costs of appellant’s therapy in the same proportion in which the master found appellee to be obligated to pay other unreimbursed medical expenses?

Before addressing these issues, we will first set forth our standards of review.

Our standard of review of an order of child support is as follows:

[T]he amount of a support order is largely within the discretion of the trial court, whose judgment should not be disturbed on appeal absent a clear abuse of discretion. An abuse of discretion is not merely an error of judgment, but rather a misapplication of the law or an unreasonable exercise of judgment. A finding that the trial court abused its discretion must rest upon a showing by clear and convincing evidence, and the trial court will be upheld on any valid ground.

Griffin v. Griffin, 384 Pa.Super. 188, 193, 558 A.2d 75, 77 (1989) (en banc) (citations omitted). An award of spousal support is subject to a similar standard: absent an abuse of discretion or insufficient evidence to sustain the support order, the Superior Court will not interfere with the trial court’s broad discretion. Myers v. Myers, 405 Pa.Super. 290, 592 A.2d 339 (1991). “Where there is insufficient evidence to support the trial court’s order, the judgment is manifestly unreasonable and must be reversed.” Id. at 293, 592 A.2d at 341.

Appellant first contends that the lower court erred in calculating the monthly incomes of each of the parties. Appellant asserts that the master erroneously imputed a monthly income of $17,750 to appellee. She contends that a monthly income of this amount yields a total annual income of $213,000, and that appellee’s tax returns for 1990 and 1991 show a much larger annual income. Appellant asserts that the evidence does not support a conclusion that appellee’s earning capacity is reduced due to reasons of health. She also contends that in calculating appellee’s net monthly income, appellee’s interest income and pension income should have been taken into account.

The record shows that appellee’s 1991 “W-2” income was $278,503.00. He also reported $33,259.00 in interest income, $32,798.00 in capital gains, and $69,600 in pension income. The master made the following finding as to appellee’s imputed monthly income:

Plaintiff [appellant] argues that Defendant [appellee] can withstand the stress of racing cars and therefore can withstand the stress of his former work load. I am not convinced by this argument. What may be stress to one individual may be relaxation to another. Also, an individual may pursue a hobby against medical advice.
My decision on this point is based upon the fact that the medical testimony stopped short of stating that Defendant could have engaged in a modified version of the customary work schedule that would meet his physician’s approval. Although I concede that Defendant may not be able to be as aggressive in pursuing his profession, it is my conclusion that the Defendant’s present earned income does not represent his earning capacity. It becomes necessary for me to impute an income to Defendant and this is done below.

Master’s Findings and Recommendation at 2.

Appellee offered the sum of $229,160 as his gross medical income for 1992. The monthly net amount imputed by the master would yield an annual amount of $213,000. If the amount of appellee’s 1992 taxes is added to this net annual amount, a gross amount of $260,485.00 is produced. This gross amount, while less than the $278,503 reported by appellee as his 1991 gross medical income, is greater than the amount offered by him for 1992. It appears that the master’s imputed monthly net income for appellee of $17,750 represents his income from sources related to his occupation only. It does not include other types of income which appellee reported on his 1991 tax return.

The support guidelines define monthly net income as including the following:

(1) wages, salaries, fees and commissions;
(2) net income from business or dealings in property;
(3) interest, rents, royalties, and dividends;
(4) pensions and all forms of retirement;
(5) income from an interest in an estate or trust; and
(6) social security benefits, temporary and permanent disability benefits, workmen’s compensation and unemployment compensation.

Pa.R.C.P., Rule 1910.16-5(b). The master’s calculation of monthly net income for appellee consisted only of item (1), supra. The rule is clear that the other types of income which appellee listed on his 1991 tax return must be included in the computation of net monthly income. Since the master erred in not including such other income in his computation of appellee’s monthly income herein, the lower court erred in affirming the master’s findings on this issue. It is necessary for us to remand the case for a recalculation of appellee’s monthly net income based on the requirements of the support guidelines.

We note, however, that we do not find any abuse of discretion in the master’s determination as to appellee’s gross medical income. The testimony of appellee’s physician supports his contention that it has been necessary for him to cut back his work hours to some extent. The master’s calculation does not accept the full reduction in medical income which appellee has proposed but instead imputes to him an additional earning capacity which is greater than that offered by appellee but less than appellee’s earning capacity prior to his medical treatment.

Appellant also contends that the lower court erred in failing to use the Melzer formula in calculating the amount of child support. The record shows that appellant submitted a recommendation to the lower court for an amount of support calculated in accordance with the support guidelines formula, Pa.R.C.P., Rule 1910.16-3(a), 42 Pa.C.S.A. We note that the Support Guidelines require the use of the Melzer formula when the combined net monthly incomes of the parties exceeds $10,000. Pa.R.C.P., Rule 1910.16-5(a). See 1910.16-3(b) (guidelines formula is applicable only to amounts up to $10,000 per month). When the support guidelines are raised, the lower court should follow the guidelines’ requirements and apply them appropriately to the facts of the case. See Ball v. Minnick, 538 Pa. 441, 648 A.2d 1192 (1994) (amount of support shall be determined in accordance with support guidelines). Thus, on remand, after recalculating the amount of appellee’s monthly income, the lower court should utilize the Melzer formula to determine the amount of support if the parties’ combined net monthly incomes exceed $10,000.

Appellant’s next contention is that the lower court erred in calculating her net monthly income. Appellant objects to the number imputed by the lower court, $2,400.00, on the basis that it was chosen without any indication by the lower court as to how it was derived. Appellant concedes that she should be assigned an earning capacity, but she does not include an amount which she would consider reasonable. Appellee points out that testimony was elicited to the effect that when appellant’s brother was managing the restaurant, as appellant is now, he earned $35,000 or $36,000 per year. An annual sum such as this would yield a monthly gross income of about $3,000 per month. An imputed monthly net income of $2,400.00 is not unreasonable based on this testimony. We find no abuse of discretion by the lower court.

Appellant next contends that the lower court abused its discretion in failing to award her spousal support. In Calibeo v. Calibeo, 443 Pa.Super. 694, 663 A.2d 184 (1995), a panel of this court determined that an order relating to spousal support is interlocutory and not appealable until all economic claims have been resolved. Id at 696-98, 663 A.2d at 185. This is the case whether the claim for spousal support is part of the divorce action or is a separately filed complaint. Id. It is also clear in this case that the lower court, while denying appellant’s claim for spousal support, awarded her alimony pendente lite of $200.00 per week. Orders for spousal support and alimony pendente lite cannot be in effect simultaneously. Note, Pa.R.C.P., Rule 1910.16-l{a), 42 Pa.C.S.A. For these reasons, we decline to review appellant’s claim that the lower court erred in denying her petition for spousal support.

Appellant also contends that the lower court erred in failing to determine the date of the parties’ separation. Since this argument relates to the issue of spousal support, which we have found unreviewable at this time, we need not consider this issue. Likewise, appellant’s argument that the lower court should use the Melzer formula to calculate the amount of spousal support need not be addressed. Appellant also correctly concedes that her claim that the amount of alimony pendente lite should be calculated under the Melzer formula is not appropriately raised at this time. See Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985) (orders relating to alimony pendente lite are interlocutory and not appealable until entry of final decree in divorce).

Appellant argues that the arrearages of child support and alimony pendente lite should have been awarded in a lump sum rather than on a weekly installment basis. She asserts that appellee has the means to pay the arrearages in full. Appellant cites no authority in support of her position.

The trial court has broad discretionary power to remit accrued support arrearages. Commonwealth v. Vogelsong, 311 Pa.Super. 507, 457 A.2d 1297 (1983). Analogously, we find within the trial court’s discretion the setting of the method of payment of arrearages. Appellant has not set forth any compelling reason or authority which would require that the lower court award arrearages in a lump sum. Accordingly, appellant’s argument on this issue is meritless.

Appellant asserts that the lower court abused its discretion in finding that the parties’ children will not require child care. Appellant contends that appellee should be ordered to pay one-half of the child care expenses for the children. This contention is meritless. As the lower court indicated in its opinion in connection with this appeal, no evidence of child care expenses was presented. Therefore, the lower court did not err in failing to order appellee to pay one-half of an amount of which there was no evidence. Should appellant incur child care expenses, she will be entitled to seek a modification of the order of child support to request one-half of the child care expense under Pa.R.C.P., Rule 1910.16 — 5(i).

Appellant argues that the lower court abused its discretion in failing to order appellee to pay the unreimbursed costs of her psychotherapy in the same proportion as he is required to pay other unreimbursed medical expenses. The master ordered appellee to provide medical insurance for appellant and the children. He further ordered appellee to pay one-half of appellant’s unreimbursed medical, hospital, dental, eye, and prescription expenses. As to appellant’s psychotherapy expenses, the master ordered appellee to pay only the portion covered by insurance. The lower court affirmed the master’s decision on this issue.

A court may require that an obligor pay a designated percentage of a spouse’s reasonable and necessary health care expenses. 23 Pa.C.S.A. § 4324. “If health care coverage is available through an obligor or obligee at no cost as a benefit of employment or at a reasonable cost, the court shall order an obligor or obligee to provide or extend health care coverage to a spouse.” Id. Under section 4324, “both the question of whether to require the obligor spouse to pay these expenses, as well as the question of the proper percentage to assess, is within the discretion of the trial court.” Lyons v. Lyons, 401 Pa.Super. 271, 284, 585 A.2d 42, 49 (1991). In the instant case, the lower court required appellee to provide appellant with medical coverage.

In addition, the court ordered appellee to pay for one-half of all of appellant’s medical expenses which are not covered by insurance, with the exception of her psychotherapy expenses. For those expenses, appellant receives insurance coverage, but appellee is not required to pay for the unreimbursed portion. We find no abuse of discretion in this allocation of expenses, and appellant has not persuaded us otherwise. The lower court’s order is a fair and reasonable allocation of appellant’s health care expenses. The order requires appellee to provide a portion of all of appellant’s health care expenses, but also requires appellant to assume a portion of those expenses herself. This does not constitute an abuse of the lower court’s discretion.

Appellant cites Pa.R.C.P., Rule 1910.16-5(p) in support of her contention that the lower court inappropriately allocated the costs of her psychotherapy. Rule 1910.16-5(p) requires that unreimbursed medical expenses be divided between the parties in proportion to their respective net incomes. However, medical expenses, as defined under the rule, do not include psychiatric or psychological services. Therefore, appellant’s reliance on this rule is inappropriate.

Appellant’s final argument relates to interim counsel fees which she herself acknowledges to be interlocutory. Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985).

Order affirmed in part and vacated in part; case remanded to lower court for further proceedings in accordance with this opinion; appellee’s motion to quash Volume III of Reproduced Record is granted; Superior Court jurisdiction relinquished.

      . The master’s order was entered on September 21, 1993. In addition to the orders of child support and alimony pendente lite, the master also directed appellant to pay arrearages in the amount of $200.00 per week. Further, the master ordered that the award of alimony pendente lite terminate six months from the date of the September 21, 1993 order.

      . We note that neither the master or the lower court offered any substantive calculations for the net monthly incomes imputed.

      . The master also ordered appellee to pay 90% of the children’s unreimbursed medical expenses.


source: Caselaw Access Project

author: CIRILLO, Judge.

license: Public Domain

text:
    673 A.2d 340
    MIDLAKE ON BIG BOULDER LAKE, CONDOMINIUM ASSOCIATION, Appellant, v. Ronald J. CAPPUCCIO and Sondra Lippi-Cappuccio.
    Superior Court of Pennsylvania.
    Argued Dec. 13, 1995.
    Filed March 11, 1996.

      James R. Nanovic, Jim Thorpe, for appellant.
    Ronald J. Cappuccio, pro se.
    G. Adam Silverstein, Philadelphia, amicus curiae.
    Before CIRILLO, HOFFMAN and OLSZEWSKI, JJ.
   CIRILLO, Judge.

Plaintiff/appellant Midlake on Big Boulder Lake, Condominium Association (Midlake) appeals from the order enjoining and prohibiting Midlake from enforcing a section of the association’s Declaration, which prohibits owner/members from posting signs on their respective properties. We reverse.

Midlake is a condominium association located in Kidder Township, Carbon County, Pennsylvania with the condominium units located along Big Boulder Lake. The association was established, under Pennsylvania’s Uniform Condominium Act, by the community developer, Northeast Land Company. A Declaration was filed with the Carbon County Recorder and Deeds Office at the time of the formation of Midlake.

Ronald and Sondra Cappuccio (the Cappuccios) acquired a unit by deed in January 1989, which was duly recorded. The declaration was incorporated in the deed. By October, 1989, the property values in the area had plummeted, and the Cappuccios placed two computer-generated signs in the windows of their condominium which read: “For Sale by Owner. Call xxx-xxx-xxxx.” The posting of these signs was in violation of Section 7.1.5 of the Declaration, which states:

No unit owner (except declarant in connection with its leasing and marketing and sale of units) may erect any sign on or in a unit or in a common element or limited common element which is visible from the outdoors without, in each instance, having obtained the prior written permission of the Executive Board.

Midlake contacted the Cappuccios to enforce the Declaration. When the Cappuccios refused to comply, Midlake brought an action in equity to compel the Cappuccios to take down the signs. The signs were removed, however, around March 1993, when the Cappuccios leased their unit. Midlake offered to withdraw its complaint if the Cappuccios would sign a stipulation stating that they would refrain from posting signs in the future. The Cappuccios refused.

A non-jury trial was held before the Honorable John P. Lavelle. The trial court noted that the matter was undeniably moot, but decided the matter after determining that the freedom of speech issue affected the interest of all the owners at Midlake, and could otherwise repeatedly escape review. The trial court then dismissed Midlake’s complaint, and granted the Cappuccios’ counterclaim, prohibiting Midlake from enforcing Section 7.1.5 of the declaration. In its opinion, the trial court reasoned that despite the fact that “[i]t is beyond cavil that the first section of the Fourteenth Amendment applies only to the states, and erects no shield against purely private conduct, however discriminatory or wrongful,” to enforce the restrictive covenant would be “state action” under Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948), We find that the application of Shelley by the trial court in this case was an error of law.

On appeal, Midlake raises the following questions:

1. Is a condominium restriction against the placements of signs visible from the outdoors without prior approval of the board of directors an impermissible infringement against free speech and a violation of the United States Constitution?
2. Should Shelley v. Kraemer be extended so that judicial enforcement of a condominium restriction constitutes state action subject to constitutional scrutiny?

Initially, we note that the Cappuccios admit that “if the Plaintiff, instead of being a private organization established under the laws of the Commonwealth of Pennsylvania, were instead a municipal governmental organization, the restrictions would clearly be unconstitutional.” Midlake, however, is a private organization, and as such, cannot abridge the rights of the First Amendment of the Constitution. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978). Accordingly, the condominium restriction against placing signs in the unit without prior approval by the board of directors is not an impermissible infringement of free speech in violation of the United States Constitution.

Next, the “state action” test, as directed by our supreme court, “is applied by the courts in determining whether, in a given case, a state’s involvement in private activity is sufficient to justify the application of a federal constitutional prohibition of state action to that conduct.” Hartford Accident & Indemnity Co. v. Insurance Commissioner of Commonwealth, 505 Pa. 571, 586, 482 A.2d 542, 549 (1984). This court subsequently determined, after a thorough review of the relevant federal law, that Shelley v. Kraemer, supra, is not applicable to the enforcement of a restrictive covenant in a contract between private parties, by stating:

[W]here a state court enforces the right of private persons to take actions which are permitted but not compelled by law, there is no state action for constitutional purposes in the absence of a finding that racial discrimination is involved as existed in the Shelley case, supra.

Wilco Electronic Systems, Inc. v. Davis, 375 Pa.Super. 109, 114, 543 A.2d 1202, 1205 (1988) (citations omitted).

The Cappuccios alternatively argue that since Midlake was organized under the laws of the Commonwealth, the establishment of the organization was therefore state action. This argument is meritless, and we summarily reject it. See Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350, 95 S.Ct. 449, 453-54, 42 L.Ed.2d 477 (1974) (“The mere fact that a business is subject to state regulation does not itself convert its action into that of the state”); see also Murphy v. Harleysville Mutual Insurance Co., 282 Pa.Super. 244, 422 A.2d 1097 (1980) , cert. denied 454 U.S. 896, 102 S.Ct. 395, 70 L.Ed.2d 211 (1981) .

The Cappuccios also weakly assert that Midlake is comparable to a company town, such as that described in Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946), since it has many of the same types of facilities. Despite the trial court’s statement regarding a “mini municipality,” there is no correlation between Midlake and a company town or municipality. Midlake’s facilities are entirely privately run. While there is sewer service, private streets, and private maintenance, Midlake provides no facilities for community public use that are typically found in a municipality, such as schools, libraries, and other public functions. We need not discuss this issue further.

In conclusion, Midlake is a private organization and there is no racial discrimination or bias, such as that exhibited by Shelley, pertinent to the restrictive covenant, which the parties entered into without any compulsion of law. There is, therefore, no state action in the court’s judicial enforcement of the condominium association’s Declaration. Wilco, supra.

The courts of this Commonwealth have vigorously defended the rights which are guaranteed to our citizens by both the federal and our Commonwealth’s constitutions. One of the fundamental precepts which we recognize, however, is the individual’s freedom to contractually restrict, or even give up, those rights. The Cappuccios contractually agreed to abide by the provisions in the Declaration at the time of purchase, thereby relinquishing their freedom of speech concerns regarding placing signs on this property. Accordingly, we reverse.

Order reversed.

      . Initially, we note that no post-trial motions were filed prior to this appeal, which would normally constitute a waiver for failure to preserve the issues for appellate review. The procedural history of this case, however, is nearly an exact replication of the circumstances addressed in Winkelman v. Pennsylvania Financial Responsibility Assigned Claims Plan, 418 Pa.Super. 439, 614 A.2d 717 (1992). In Winkelman, as here, plaintiff initiated an action in equity, and the trial court entered an order and opinion, instead of the adjudication and decree nisi required by Pa.R.C.P., Rule 1517(a), 42 Pa.C.S.A. In keeping with our previous rulings on this issue, we determined that failure to file post-trial motions does not prevent us from reaching the merits of the claims. Winkelman, supra at 442-43, 614 A.2d at 719; see also Daley-Sand v. West American Insurance Co., 387 Pa.Super. 630, 636, 564 A.2d 965, 968 (1989).

      . 68 P.S. § 3101. The Act provides that a declaration for a condominium must contain any restrictions created by the declarant on use, occupancy, and alienation of the unit. Midlake has complied with the law, and it is not disputed that the Cappuccios were aware of the restriction at the time of purchase. Mr. Cappuccio is an attorney, licensed to practice in New Jersey.

      . Pennsylvania case law, specifically Reichley v. North Penn School District, 113 Pa.Commw. 528, 537 A.2d 391 (1988), cited by the trial court, allows courts to decide an important controversy which might otherwise elude judicial scrutiny due to the legal maneuvering of a litigant.

      . Community Associations Institute, Inc. filed a brief and presented oral argument as amicus curiae on behalf of Midlake.


author: CIRILLO, Judge: DEL SOLE, Judge, SAYLOR, Judge, concurring.

text:
    673 A.2d 343
    COMMONWEALTH of Pennsylvania v. William McGINLEY and Raymond W. Anthony. Appeal of James Earnest JONES.
    Superior Court of Pennsylvania.
    Argued Nov. 1, 1995.
    Filed March 11, 1996.

      Jonathan C. Deisher, Allentown, for appellant.
    John M. Morganelli, District Attorney, Bethlehem, for Commonwealth, appellee.
    Before ROWLEY, President Judge , and McEWEN, CIRILLO, DEL SOLE, BECK, TAMILIA, POPOVICH, FORD ELLIOTT and SAYLOR, JJ.

       President Judge Rowley did not participate in the consideration or decision of this case.

   CIRILLO, Judge:

James Earnest Jones appeals from an order entered in the Court of Common Pleas of Northampton County denying and dismissing Jones’ petition for approval of private criminal complaints filed by Jones against two individuals. We affirm.

The facts leading up to this appeal, as alleged by Jones by way of affidavit, are as follows. Jones contends that on March 13, 1993, Raymond W. Anthony, a part-time police officer in the Borough of North Catasauqua, forced his way into Jones’ home and ordered him to move his truck, which was illegally parked during a snow storm. When Jones refused to move his truck, Officer Anthony informed Jones that he was under arrest for disorderly conduct. Officer Anthony then allegedly assaulted Jones before handcuffing him, causing a neck sprain and headaches. Jones further asserts that William McGinley, Mayor of North Catasauqua, followed Officer Anthony into Jones’ residence, also uninvited. Eventually, Jones was taken to the police station and charged with disorderly conduct and resisting arrest. A jury trial commenced on these charges; however, after Officer Anthony testified, the Commonwealth opted to withdraw the charges.

Subsequently, on September 16, 1994, Jones filed private criminal complaints against Officer Anthony and Mayor McGinley. The proper procedure for seeking approval of private criminal complaints is set forth in Pa.R.Crim.P. 106 which provides, in pertinent part:

(a) When the affiant is not a law enforcement officer and the offense(s) charged include(s) a misdemeanor or felony which does not involve a clear and present danger to any person or to the community, the complaint shall be submitted to an attorney for the Commonwealth, who shall approve or disapprove without unreasonable delay.
(b) If the attorney for the Commonwealth
(1) Approves the complaints, the attorney shall indicate this decision on the complaint form and transmit it to the issuing authority;
(2) Disapproves the complaint, the attorney shall state the reasons on the complaint form and return it to the affiant. Thereafter the affiant may file the complaint with a judge of a Court of Common Pleas for approval or disapproval[.]
******

Pa.R.Crim.P. 106.

The complaint against Officer Anthony consisted of four counts: official oppression, criminal trespass, assault, and criminal conspiracy. The complaint against Mayor McGinley consisted of three counts: official oppression, criminal • trespass, and criminal conspiracy. The District Attorney’s office disapproved both complaints. The complaint against Officer Anthony contained the following notation by the District Attorney: “All 4 are denied; No crime committed; Affiant seeks civil remedies; Pros. Disc, not to prosecute.” Similarly, the complaint against Mayor McGinley read: “All 3 are denied; No crime committed; Affiant should file civil action; Pros. Disc, not to prosecute.”

On October 21, 1994, Jones, through his counsel, presented a petition for approval of private criminal complaints to the trial court. A conference was held with counsel, at which time the parties stipulated that the record would consist of the affidavits submitted by Jones in support of the- complaints. On November 15, 1994, the trial court denied and dismissed Jones’ petition. This appeal followed.

Jones presents the following issues for our consideration:

(1) Did the private criminal complaints filed by the appellant allege sufficient facts to establish a prima facie case with regard to each charge set forth therein?
(2) Was the exercise of the District Attorney’s prosecutorial discretion not to prosecute a gross abuse of that discretion? Recently, an en banc panel of this court examined the

Commonwealth’s (Attorney General) claim that the trial court, in ordering the prosecution of a private criminal complaint, usurped the Commonwealth’s policy-making authority contrary to the separation of powers doctrine. Commonwealth v. Brown, — Pa.Super. —, 669 A.2d 984 (1995). After determining that such an issue was waived, as it was raised for the first time on appeal, this court nevertheless concluded that the separation of powers doctrine was not violated by a limited judicial review of a prosecutor’s decision, nor was this court empowered to declare that a rule established by the Pennsylvania Supreme Court violated the separation of powers doctrine. See Pa.R.C.P. 106, supra (expressly providing for the approval or disapproval of a private criminal complaint by a judge of the court of common pleas). In resolving the Attorney General’s second issue, i.e., that the trial court erred in deciding that he committed a gross abuse of discretion in disapproving the private criminal complaint, this court was called upon to determine the proper standard for a trial court to apply when it is asked to review a prosecutor’s disapproval of a private criminal complaint. Furthermore, and more importantly for purposes of deciding the instant case, we stated: “[Bjecause of existing confusion concerning the proper standard for an appellate court to apply when reviewing a trial court’s determination in such a case, we must clarify that standard as well.” Brown, at —-—, 669 A.2d 984. In Commonwealth v. Benz, 523 Pa. 203, 565 A.2d 764 (1989) (plurality opinion), our supreme court for the first time distinguished between a prosecutorial decision that is based upon a policy determination and one that is based upon a legal evaluation of the sufficiency of a private criminal complaint. This distinction was subsequently applied by this court in Commonwealth v. Jury, 431 Pa.Super. 129, 636 A.2d 164 (1993), appeal denied, 537 Pa. 647, 644 A.2d 733 (1994).

In the process of setting forth a clarified standard of review, we stated in Brown:

Although we continue to find validity in a court giving deference to a prosecutor’s policy decision not to prosecute a private criminal complaint, we recognize the need to distinguish between the standard of review to be used by the trial court and the appellate court. Jury incorrectly establishes that an appellate court directly reviews the prosecutor’s decision regarding a private criminal complaint. However, Rule 106 reserves this function to the court of common pleas. Thus, we must reject Jury’s standard....

Brown, at —, 669 A.2d 984. In modifying the standard set forth in Jury, the Brown court enunciated the following clarified standard of review:

When a trial court is asked to review a prosecutor’s disapproval of a private criminal complaint, the trial court must first determine the rationale behind the prosecutor’s decision. If the prosecutor’s decision was based upon a legal evaluation of the sufficiency of the complaint, then the trial court must undertake a de novo review of the complaint to ascertain whether it establishes a prima facie cause of action. If, however, the prosecutor’s decision was based upon a policy determination that it would not be in the best interests of the Commonwealth to prosecute, then the trial court must defer to the prosecutor’s discretion absent a gross abuse of that discretion.
In determining whether a gross abuse, of discretion has occurred, the common pleas court must consider whether the policy advanced by the prosecuting authority comports with both the law and justice. A policy must embrace the general principles by which the prosecutor is guided in the management of its public responsibilities. A policy connotes a definite course or method of action selected in light of given conditions to guide and determine both present and future decisions. Therefore, it is expected that a prosecutor should be prepared to advance evidence that confirms the establishment of the policy, as well as corroborates its application to matters of similar, or like, import.
This in no way suggests that the common pleas court may substitute its judgment for that of the prosecutor. But where the prosecutor seeks to rest the decision not to prosecute on policy grounds, the prosecutor must be prepared to come forward with a clear statement as to the particular policy that dictates withholding prosecution as well as how that policy relates to the particular facts being advanced by the private prosecutor.
When an appeal is brought from a common pleas court’s decisión regarding the approval or disapproval of a private criminal complaint, an appellate court is limited to ascertaining the propriety of the trial court’s actions. Thus, our review is limited to determining whether the trial court abused its discretion or committed an error of law.

Brown, at —-—, 669 A.2d 984 (emphasis added).

Here, while the district attorney’s designation on each of Jones’ private criminal complaints included the notations “no crime committed,” and “prosecutorial discretion not to prosecute,” it is clear from the record before us that the district attorney relied primarily on his prosecutorial discretion in disapproving the complaints, and that such disapproval was predicated upon policy concerns. During the hearing whereby Jones sought review of the district attorney’s disapproval of his criminal complaints, it was agreed that Jones would rely upon his affidavit of the events in question and it was also agreed that letter briefs would be submitted by the respective parties. In his letter brief to the trial court, the district attorney stated:

As set forth in Commonwealth v. Jury, supra, in this Commonwealth the District Attorney enjoys wide latitude when deciding whether to disapprove a private criminal complaint and may do so for policy reasons wholly apart from a preliminary assessment of the evidence. That is exactly what was done in this case.[ ] It was and is my judgment that the private affiant was seeking to utilize the criminal system to redress grievances allegedly committed against him by municipal police officers. As noted in the disapproval, there are adequate civil remedies to redress such grievances, if in fact, any improper conduct occurred by the police officers that infringed upon the civil rights and/or constitutional rights of the private affiant. For policy reasons, exercising prosecutorial discretion, the private criminal complaints were not approved, (emphasis added).

In its opinion, the trial court concluded that there was no reason to compel the Commonwealth to pursue prosecution and that, based on the district attorney’s discretion in the matter, “did not reach the issue of whether a prima facie case against McGinley and Anthony existed.”

It is clear that the district attorney did not base the dismissal of Jones’ complaints on solely a lack of evidence, but, rather, essentially relied upon a policy determination. Benz, supra; Brown, supra; Jury, supra. We must now ascertain the propriety of the trial court’s actions and decide whether the trial court abused its discretion or committed an error of law. Brown, supra. In concluding that the district attorney did not commit a gross abuse of discretion in disapproving Jones’ private criminal complaint, the trial court cited passages from two analogous cases, Commonwealth v. Pritchard, 408 Pa.Super. 221, 596 A.2d 827 (1991) and Petition of Piscanio, 235 Pa.Super. 490, 344 A.2d 658 (1975). In Pritchard we stated:

The District Attorney’s function is to represent the Commonwealth in criminal prosecutions. The District Attorney exercises this responsibility by first evaluating complaints to determine whether criminal charges should be brought against an individual. See Petition of Piscanio, 235 Pa.Super. [at 490,] 344 A.2d [at 660]. The private prosecutor, even if he or she was the victim, “has no legitimate interest, other than as a member of the general public, in seeing a violator of the laws brought to justice by the Commonwealth and punished for his misdeeds. If a private prosecutor feels individually harmed his remedy is a civil suit for damages.” Id. [at 496], 344 A.2d at 661-62. It would make little sense to grant to the attorney for the Commonwealth broad prosecutorial discretion in his role as advocate for the Commonwealth, only to allow private affiants the ability to file complaints without the approval of the District Attorney whenever an alleged victim makes out a complaint involving some type of violent act.

Pritchard, 408 Pa.Super. at 228-229, 596 A.2d at 831 (emphasis added). The trial court found that the above stated reasoning, along with the fact that the district attorney’s office had previously been involved in the criminal prosecution of Jones by Anthony, and had before it all the information regarding the incident which involved Jones, Anthony, and McGinley, led to a conclusion that the district attorney’s office, “under its prosecutorial discretion not to prosecute, did not commit a gross abuse of discretion in its decision not to approve the private criminal complaint.”

As evidenced by its opinion, the trial court considered the district attorney’s belief that Jones, the private affiant, was seeking to utilize the criminal justice system to redress grievances for which there are adequate civil remedies. Pursuant to the dictates recently set forth in Brown, this reasoning sufficiently sets forth a clear statement as to the particular policy that dictates withholding prosecution. Pritchard, supra; Piscanio, supra. Because we must confine our review to ascertaining the propriety of the trial court’s actions, we find that there has been no abuse of discretion in the trial court’s decision denying approval of Jones’ complaints based upon a policy decision. Brown, supra.

By way of dicta, we note that there exists a potential argument that it would be improper for an appellate court to review a trial court’s decision regarding a purely policy-based determination by a district attorney’s approval or disapproval of a private criminal complaint. When a trial court refuses to approve a private criminal complaint after the district attorney has disapproved the complaint based upon wholly discretionary matters of policy, this court is potentially left with essentially nothing to review. In such a case, the trial court’s review is important to a petitioner when the district attorney has, in fact, abused his or her discretion. Securing this type of judicial determination that the district attorney did not commit an abuse of discretion, however, arguably could be the end of the line for the complainant, as he has, at this point, received his due process. The restriction oh a prosecutor’s discretion should be as limited as possible, for the special deference extended to a policy decision not to prosecute stems from the deference afforded the discretionary use of executive powers granted to the district attorney. Benz, supra; Commonwealth v. Muroski 352 Pa.Super. 15, 506 A.2d 1312 (1986); In re Wood, 333 Pa.Super. 597, 482 A.2d 1033 (1984); Commonwealth v. Eisemann, 276 Pa.Super. 543, 419 A.2d 591 (1980); see Commonwealth v. Slick, 432 Pa.Super. 563, 570-571, 639 A.2d 482, 486 (1994), appeal denied, 538 Pa. 669, 649 A.2d 671 (1994) (a judge in our system does not have the authority to tell prosecutors which crimes to prosecute; prosecutorial discretion, while subject to judicial review to protect constitutional rights, is not reviewable for an abuse of discretion). “The judicial power to interfere in cases challenging acts of character committed to the discretion of public officials is exceedingly limited. Indeed, there is a presumption that their actions are within the limits of their discretion.” Downing v. School District of the City of Erie, 360 Pa. 29, 34, 61 A.2d 133, 135 (1948). The court of common pleas, in reviewing a dismissal of a private criminal complaint pursuant to a gross abuse of discretion standard, may at some point be found to have satisfied the judicial inquiry into the district attorney’s exercise of discretion based on policy matters. In light of the current law, however, we have properly reviewed the trial court’s decision, and find no abuse of discretion. Brown, supra.

Affirmed.

McEWEN and FORD ELLIOTT, JJ., concur in the result of this opinion.

DEL SOLE, J., files a concurring opinion in which BECK and POPOVICH, JJ., join.

SAYLOR, J., files a concurring statement.

DEL SOLE, Judge,

concurring:

I agree with the Majority in affirming the trial court decision not to require the prosecution of this private criminal complaint. However, I cannot agree with the conclusion that this Court’s en banc decision in Commonwealth v. Brown, Pa.Super. —, 669 A.2d 984 (1995) established the standard of review as set forth on page 134-36 of the Majority Opinion.

I am of the view that the Concurring Opinion of Judge Kelly sets forth a correct analysis of our review function in this type of case. A trial court’s determination whether a prosecutor grossly abused discretion in refusing to approve a private criminal complaint, is not a discretionary act by the trial judge. Rather, it is a legal conclusion based on the record, and, necessitates our examination of the exercise of the prosecutor’s discretion.

For this reason and because the Pennsylvania Constitution, Article 5 § 9, guarantees the right of appellate review of decisions of courts of record, I cannot subscribe to the dicta expressed in the Majority Opinion. Further, to limit review of policy-based prosecutorial decisions to the trial court would prevent prosecutors from appealing trial decision’s to approve a private criminal complaint. In my view, since review itself is a serious excursion into the executive branch functions, the executive must be able to have appellate review.

BECK and POPOVICH, JJ., join.

SAYLOR, Judge, concurring.

I agree with my colleague, Judge Del Sole, that the standard and scope of appellate review is more appropriately set forth in Judge Kelly’s Concurring Opinion in Commonwealth v. Brown, — Pa.Super. —, 669 A.2d 984 (1995). I am also of the view that a prosecutor’s decision to disapprove a private criminal complaint should not be disturbed absent a showing of bad faith or improper motive, as is more particularly set forth in my Dissenting Opinion in Commonwealth v. Brown, supra.

      . For a further examination of the law on this subject matter, we note the following significant cases leading up to the Benz decision: See Commonwealth v. Muroski, 352 Pa.Super. 15, 506 A.2d 1312 (1986); In re Wood, 333 Pa.Super. 597, 482 A.2d 1033 (1984); Commonwealth v. Eisemann, 276 Pa.Super. 543, 419 A.2d 591 (1980); In re Petition of Piscanio, 235 Pa.Super. 490, 344 A.2d 658 (1975).

      . Judge Kelly wrote a concurring opinion in Brown, joined by Judges Beck and Ford Elliott, expressing dissatisfaction with the majority's discussion of this court’s modified standard of review. Specifically, the concurrence concludes that the majority's criticism of Jury is unwarranted and that its standard of review is not entirely accurate. According to Judge Kelly, this court cannot affirm a common pleas court's order approving a private criminal complaint unless we also contemporaneously conclude that the Attorney General/District Attorney grossly abused his discretion in disapproving it. Brown, supra.

      . We note that the trial court was wrongly under the assumption that Jones entered into a negotiated plea regarding the charges filed by Anthony. There is no evidence of such a plea in the record.

      . Although Brown was decided after the trial court’s review of the instant matter, the trial court nonetheless correctly reviewed the district attorney’s actions pursuant to a gross abuse of discretion standard, and we are in turn able to find that there has been no abuse of discretion in the trial court’s decision.


author: KELLY, Judge:

text:
    673 A.2d 348
    ERIE INSURANCE EXCHANGE, Appellant, v. Vernon R. CLAYPOOLE, Vernon R. Claypoole, Inc., Amanda Black, Heather Black, Leonard Black, Wilma Black, Leonard and Wilma Black as the Guardians of Amanda and Heather Black, Erin Davis, Gregory Davis, Gregory Davis as the Guardian of Erin Davis, Darcie Hulings, Stephanie Hulings, Dennis Hulings, Luene Hulings, Dennis and Luene Hulings as the Guardians of Darcie and Stephanie Hulings, Elizabeth Jones, Nancy R. Jones, Indiana Area School District, David Laird, Superintendent of the Indiana Area School District and Clark Lemuel Myers, Jr., Appellees. (Two Cases)
    Superior Court of Pennsylvania.
    Argued Nov. 2, 1995.
    Filed March 12, 1996.

      Richard W. Dibella, Pittsburgh, for appellant.
    George P. Faines, Pittsburgh, for Myers, appellee.
    Richard B. Tucker, III, Pittsburgh, for Claypoole, appellee.
    Before: ROWLEY, President Judge, WIEAND, KELLY, POPOVICH, HUDOCK, FORD ELLIOTT, SAYLOR, HESTER, and OLSZEWSKI, JJ.

       This decision was reached prior to the retirement of President Judge Rowley from this Court.

   KELLY, Judge:

This appeal asks us to determine whether appellant, Erie Insurance Exchange (“Erie”), is legally obligated to defend and indemnify appellees, Vernon R. Claypoole ('“Claypoole”), Vernon R. Claypoole, Incorporated (“Claypoole, Inc.”), and Clark L. Myers (“Myers”) in a civil action instituted against appellees by several minor children and their parents/guardians (the “plaintiffs”). In the civil action, the plaintiffs seek damages from appellees based upon their allegations that Myers, during the course of his employment for Claypoole, Inc. as a school bus driver, sexually molested the minor children on numerous occasions while driving them to and from school. We hold that the issue of Erie’s legal obligation to defend and indemnify Claypoole and Claypoole, Inc. is dismissed as moot and we need not determine whether the trial court erred in ordering it to defend and indemnify them. We further hold that Erie possesses no duty to defend or indemnify Myers and the trial court committed an error of law by ordering it to defend him. Accordingly, we dismiss in part and reverse in part.

The relevant facts and procedural history of this case are as follows. Claypoole, Inc. owned several school buses which it leased to the Indiana Area School District (“IASD”), together with drivers, to transport students to and from school. Claypoole was the president of Claypoole, Inc. On June 28, 1990, the plaintiffs filed a complaint in the United States District Court for the Western District of Pennsylvania naming IASD, its superintendent, Myers, and Claypoole as defendants. An amended complaint was filed on February 5, 1991 naming Claypoole, Inc. as an additional defendant. Essentially, these complaints charged IASD, its superintendent, Claypoole, and Claypoole, Inc. with violating the plaintiffs’ civil rights; charged Myers with assault and battery by “negligently, intentionally, and unlawfully engaging] in offensive and harmful physical conduct in the nature of sexual abuse and offensive touching of’ the minor children; and charged Claypoole and Claypoole, Inc. with negligent hiring and entrustment resulting from Claypoole, Inc.’s employment of Myers as a school bus driver. According to the complaint, Myers’ sexual molestation of the minor children occurred between September 1, 1984 and June 1, 1985 and between September 1, 1988 and December 16,1988.

Erie became involved in the plaintiffs’ civil action against appellees by virtue of the combination automobile insurance policy (“combination policy”) it had entered into with Claypoole, Inc. for the period of August 30, 1984 through August 30, 1985 and the commercial automobile insurance policy (“commercial policy”) it had entered into with Claypoole, Inc. for the period of August 30,1988 through August 30,1989. In the combination policy, Erie agreed to pay legally obligated damages “arising out of the ownership, maintenance, or use” of Claypoole, Inc.’s automobiles on behalf of Claypoole, Inc. and those persons, such as Myers, whom Claypoole, Inc. permitted to use its automobiles. The combination policy specifically excluded damages for injuries resulting from intentional acts of those insured. Similarly, in the commercial policy, Erie agreed to pay legally obligated damages caused by accidents arising “out of the ownership, maintenance, use, loading or unloading” of Claypoole, Inc.’s automobiles on behalf of Claypoole, Inc. and those persons, such as Myers, whom Claypoole, Inc. permitted to use its automobiles. The commercial policy defined the term accident as “any event or continuous or repeated exposure to the same conditions resulting in bodily injury ... that anyone we protect did not expect or intend to happen.”

In light of the combination policy and the commercial policy, on August 31,1990, Erie and Claypoole, Inc. executed the non-waiver agreement. This agreement acknowledged the lawsuit that the plaintiffs had initiated in the District Court pursuant to their allegations of Myers’ sexual molestation of the minor children. It further acknowledged that Erie was willing to investigate the plaintiffs’ allegation and provide an initial defense in this lawsuit without prejudicing its right under the combination and commercial policies. Thus, in the non-waiver agreement, it was mutually agreed that:

1. Erie or its attorneys may, without waiving any of its rights under the policies, investigate the alleged incidents or occurrences giving rise to the Lawsuit, provide a defense to Vernon R. Claypoole and/or Claypoole, Inc. in the Lawsuit, and perform any acts which may be considered desirable on behalf of Vernon R. Claypoole and/or Claypoole, Inc. in defending the Lawsuit; and such actions on the part of Erie shall not operate as an admission of liability under the policies or prejudice Erie’s rights under the policies.
2. Erie does not hereby waive or release any rights under the policies.
3. Claypoole, Inc., does not hereby waive or release any rights it may have against Erie. The exception being that Claypoole, Inc. waives the right to claim that Erie has waived its rights under the policies by investigating the alleged incidents and occurrences or by providing a defense in the Lawsuit to Vernon R. Claypoole and/or Claypoole, Inc.

No similar agreement was executed between Erie and Myers.

Eventually, summary judgment was granted by the District Court as to each of the plaintiffs’ civil rights claims and the Third Circuit affirmed. See Black by Black v. Indiana Area School District, 985 F.2d 707 (3rd Cir.1993). The plaintiffs remaining tort claims were then transferred to the Allegheny County Court of Common Pleas. After this transfer occurred, Erie filed a complaint in declaratory judgment on May 17, 1991. In this complaint, Erie requested the issuance of an order declaring that it had no legal obligation to defend or indemnify Claypoole, Claypoole, Inc. or Myers in the plaintiffs’ civil action based upon their remaining tort claims against the trio. With the consent of all parties, by order dated July 15, 1991, venue of this case was transferred to the Indiana County Court of Common Pleas.

Various pleadings were filed by all parties over the course of the next three years pertaining to the declaratory judgment complaint that had been filed by Erie. On July 26, 1994, the plaintiffs filed a motion for summary judgment against Erie as to all issues of insurance coverage. Claypoole and Claypoole, Inc. also filed a motion for summary judgment on July 26, 1994. In this motion, Claypoole and Claypoole, Inc. requested that the trial court order Erie to defend and indemnify them in the plaintiffs’ civil action. Erie opposed these summary judgment motions and effectively requested that summary judgment be granted in its favor in a brief filed August 10, 1994. On August 19, 1994, the plaintiffs and Claypoole and Claypoole, Inc. filed reply briefs in support of their summary judgment motions. Myers subsequently moved for summary judgment on August 31, 1994, thereby joining the plaintiffs’ summary judgment motion and brief replying to Erie’s opposition to that motion.

By decree and amended decree dated September 1, 1994 and September 14, 1994, respectively, the trial court ordered Erie to defend and indemnify Claypoole and Claypoole, Inc. in plaintiffs’ civil action pursuant to the combination and commercial policies. The trial court further ordered Erie to defend Myers pursuant to the combination and commercial policies, but found that the issue of Erie’s duty to indemnify Myers pursuant to these policies was not yet ripe for judicial review. Thus, the trial court granted the motions for summary judgment filed by the plaintiffs, Claypoole, Claypoole, Inc. and Myers, thereby denying Erie’s declaratory judgment complaint. Shortly after these decrees had been issued by the trial court, Erie settled all of the plaintiffs’ remaining claims against Claypoole, Claypoole, Inc. and Myers. On September 30, 1994, Erie timely noticed its appeal of the trial court’s decree and amended decree. Erie filed an amended notice of appeal on October 7,1994.

Erie raises the following issues for our review:

I. WHETHER THE CONDUCT FOR WHICH THE MINOR CHILDREN SEEK COMPENSATION IS SEXUAL MOLESTATION BY CLARK LEMUEL MYERS, JR., WHICH CONSTITUTES INTENTIONAL CONDUCT FOR WHICH THE ERIE POLICIES AFFORD NO COVERAGE.
II. WHETHER THE INJURIES OR ACTS OF WHICH THE MINOR PLAINTIFFS COMPLAIN ARISE FROM THE OWNERSHIP, MAINTENANCE, USE, LOADING AND/OR UNLOADING OF A SCHOOL BUS SO THAT THE ERIE POLICIES AFFORD COVERAGE.
III. WHETHER COVERAGE IS AFFORDED UNDER AN AUTOMOBILE LIABILITY INSURANCE POLICY FOR A CAUSE OF ACTION FOR NEGLIGENT HIRING AND ENTRUSTMENT WHERE THE UNDERLYING TORTIOUS CONDUCT IS SEXUAL MOLESTATION.
IV. WHETHER IT WAS IMPROPER FOR THE COURT BELOW TO ENTER JUDGMENT IN FAVOR OF CLARK LEMUEL MYERS, JR., BEFORE ERIE HAD ANY OPPORTUNITY TO RESPOND TO THE MOTION FOR SUMMARY JUDGMENT FILED BY HIM.
V. WHETHER IT IS PROPER UNDER THE CIRCUMSTANCES OF THIS ACTION FOR ERIE TO CONTINUE TO SEEK AN ADJUDICATION OF ITS DUTY TO DEFEND AND INDEMNIFY EVEN THOUGH THE UNDERLYING ACTION HAS BEEN SETTLED.

Appellant’s Brief at 4.

As Erie’s fifth issue pertains to the propriety of this appeal, we will address it first. In this issue, Erie claims that this entire appeal is properly before this Court even though it settled the plaintiffs’ tort claims against Claypoole, Claypoole, Inc., and Myers shortly after the trial court issued the September 1, 1994 and September 14, 1994 decrees. Erie first contends that it never actually defended Myers in the plaintiffs’ civil action, never agreed to defend him in this action, and the trial court erred in ordering it to do so. Consequently, Erie posits that its appeal from the trial court’s decrees ordering it to defend Myers is not mooted by its settlement with the plaintiffs’ because it will be required to reimburse Myers for his expenses incurred in defending himself in the plaintiffs’ civil action unless we reverse these decrees. Contrarily, Myers claims that Erie’s settlement with the plaintiffs moots this appeal. According to Myers, an actual controversy no longer exists because of the settlement.

Additionally, Erie contends that its settlement with the plaintiffs does not moot its appeal from the trial court’s decrees ordering it to defend and indemnify Claypoole and Claypoole, Inc., despite the existence of the non-waiver agreement. Erie argues that we should address this issue because of the potential that other children may bring similar civil actions against Claypoole and Claypoole, Inc. based upon allegations of sexual molestation committed by Myers. Claypoole and Claypoole, Inc. take no position on this issue.

It is impermissible for courts to render purely advisory opinions. State Farm Mut. Auto. Ins. Co. v. Veltri, 424 Pa.Super. 612, 615, 623 A.2d 849, 850 (1993); In re Application of Milton S. Hershey Med. Ctr., 407 Pa.Super. 565, 571, 595 A.2d 1290, 1293, aff'd, 535 Pa. 9, 634 A.2d 159 (1993); Courtney v. Ryan Homes, Inc., 345 Pa.Super. 109, 119, 497 A.2d 938, 942 (1985). Generally, we will not review moot or abstract questions. Rosenfield v. Pennsylvania Auto. Ins. Plan, 431 Pa.Super. 383, 388, 636 A.2d 1138, 1141 (1994); Commonwealth v. Salr-Mar Amusements, Inc., 428 Pa.Super. 321, 326, 630 A.2d 1269, 1272 (1993). In other words, judgments or decrees to which no effect can be given will not, in most cases, be entered by this Court. Richards v. Trimbur, 374 Pa.Super. 352, 359, 543 A.2d 116, 119 (1988), allocatur denied, 522 Pa. 620, 563 A.2d 888 (1989); Graziano Constr. Co., Inc. v. Lee, 298 Pa.Super. 311, 317, 444 A.2d 1190, 1193 (1982) (quoting O’Donnell v. Pennsylvania Liquor Control Bd., 158 Pa.Super. 533, 536, 45 A.2d 369, 370 (1946)). This means that, at every stage of the judicial process, an actual case or controversy must usually exist to avoid dismissal for mootness. Commonwealth v. Sal-Mar Amusements, Inc., supra at 326, 630 A.2d at 1272; Richards v. Trimbur, supra at 359, 543 A.2d at 119. Moreover, a change in the facts may render a case moot even though it had once been actual. In re Gross, 476 Pa. 203, 209, 382 A.2d 116, 119-20 (1978); Richards v. Trimbur, supra at 359, 543 A.2d at 119; Commonwealth v. Smith, 336 Pa.Super. 636, 640, 486 A.2d 445, 447-48 (1984).

Several exceptions to the general prohibition of appellate review of moot questions do, however, exist. Appeals presenting questions capable of repetition and apt to elude appellate review will be decided even if they are technically moot. Jersey Shore Area Sch. Dist. v. Jersey Shore Educ. Ass’n, 519 Pa. 398, 400, 548 A.2d 1202, 1204 (1988); Commonwealth v. Sal-Mar Amusements, Inc., supra at 326, 630 A.2d at 1269; In re Application of Milton S. Hershey Med. Ctr., supra at 572, 595 A.2d at 1294. Further, moot appeals will be reviewed where a party to the controversy will clearly continue to suffer detriment due to the decision of the trial court. Commonwealth v. Sal-Mar Amusements, supra at 326, 630 A.2d at 1272; Commonwealth v. Smith, supra at 641, 486 A.2d at 448; Janet D. v. Carros, 240 Pa.Super. 291, 311, 362 A.2d 1060, 1070 (1976), allocatur denied. Finally, in rare instances, moot appeals concerning questions of great public importance are reviewable. Meyer v. Strouse, 422 Pa. 136, 138, 221 A.2d 191, 192 (1966) (quoting Ridley Park Shopping Center, Inc. v. Sun Ray Drug Co., 407 Pa. 230, 232, 180 A.2d 1, 3 (1962)); Graziano Constr. Co., Inc. v. Lee, supra at 316, 444 A.2d at 1193; Janet D. v. Carros, supra at 311-12, 362 A.2d at 1070.

Instantly, an actual case or controversy between Erie and Myers still exists despite Erie’s settlement with the plaintiffs. Erie never agreed to nor did it ever actually provide a defense to Myers throughout the plaintiffs’ entire civil action. Thus, when the trial court ordered Erie to defend Myers in the plaintiffs’ civil action against him pursuant to the combination and commercial policies, it effectively ordered Erie to reimburse Myers for the resources he expended in defending himself against the plaintiffs. Erie has continually contested its legal obligation to defend Myers and reimburse him in this regard. Therefore, our resolution of this appeal will determine whether Erie was properly ordered to reimburse Myers for these defense expenditures and this portion of appellant’s appeal is not moot.

When Erie settled with the plaintiffs, however, an actual case or controversy no longer existed between it and Claypoole and Claypoole, Inc. Under the non-waiver agreement, Erie agreed to investigate the plaintiffs’ allegations and initially defend Claypoole and Claypoole, Inc. in the plaintiffs’ civil action against them without waiving its rights under the combination and commercial policies. Nothing of record indicates that Erie failed to abide by this agreement. Erie defended Claypoole and Claypoole, Inc. from August 31, 1991 up until it instituted the declaratory judgment action from which this appeal is ultimately derived. During the resolution of the declaratory judgment action, the plaintiffs’ underlying civil action was, for all intents and purposes, stayed; neither Claypoole or Claypoole, Inc. expended any resources defending themselves in this underlying action during that period of time. Thus, because Erie had defended Claypoole and Claypoole, Inc. against the plaintiffs in their civil action and then settled with the plaintiffs on behalf of Claypoole and Claypoole, Inc. shortly after the trial court resolved its declaratory judgment complaint, it is unnecessary for Erie to reimburse either Claypoole or Claypoole, Inc. to comply with the trial court’s September 1, 1994 and September 14, 1994 decrees. Erie effectively acquiesced to these decrees with regard to Claypoole and Claypoole, Inc. by virtue of its execution of the non-waiver agreement and eventual settlement with the plaintiffs. Therefore, no effect could be given to our resolution of this issue if we were to render one and it is moot. See generally Commonwealth v. Joint Bargaining Committee for the Pennsylvania Social Services Union, 484 Pa. 175, 177, 398 A.2d 1001, 1002 (1979) (appeal to Supreme Court from Commonwealth Court’s decree enjoining union from engaging in work stoppages became moot when new labor contract was signed prior to Supreme Court’s resolution of appeal); Brunn v. Kean, 163 Pa.Super. 574, 575-76, 63 A.2d 108, 109 (1949) (where parties agree to disposition of litigation and acquiesce to trial court’s order, dismissal of appeal is proper). Cf. Terra Nova Ins. Co. Ltd. v. 900 Bar Inc., 887 F.2d 1213, 1219 (3rd Cir.1989) (insurer’s federal declaratory judgment claim regarding its duty to defend insured will be rendered moot if insurer continues to defend insured in underlying civil action in state court until underlying action is resolved because insurer could not recover costs of continued representation of insured in underlying civil action even though such costs may subsequently be found unnecessary).

Further, none of the exceptions of the mootness doctrine apply to the facts of this case. This is not a rare instance in which Erie has raised an issue of great public importance. Moreover, because settlement with the plaintiffs occurred and Erie had originally defended Claypoole and Claypoole, Inc. in the plaintiffs civil action, no party continues to suffer detriment due to the trial court’s order. Finally, the potential that other children who had been driven to school by Myers might bring a similar action against Erie does not present a question capable of repetition yet apt to elude our review. Although a similar case may arise in the future, if Erie appeals from a similar ruling of the trial court and does not settle the underlying case, this issue will not elude appellate review. Hence, if we were to resolve the portion of this appeal pertaining to Erie’s duty to defend and indemnify Claypoole and Claypoole, Inc. under the combination and commercial policies, we would be rendering an advisory opinion pertaining to a moot issue. Accordingly, an appellate determination of whether claims of negligent hiring and entrustment against an insured in sexual molestation cases invokes an insurer’s duty to defend and indemnify cannot be furnished at this time.

We now address the remaining issues raised by Erie which are properly before this Court. Erie contends that the trial court erred in entering summary judgment in favor of Myers and ordering it to defend him in the plaintiffs’ civil action pursuant to the combination and commercial policies. According to Erie, it is not legally obligated to defend or indemnify Myers under these policies because the plaintiffs’ complaint charged Myers with purely intentional torts pertaining to his alleged sexual molestation of the .minor children. Conversely, Myers claims that the commercial and combination policies required Erie to defend him against the plaintiffs. Myers contends that the injuries alleged by the plaintiffs are causally connected to his use of Claypoole, Inc.’s school bus. Further, Myers emphasizes that the plaintiffs’ complaint filed in the District Court alleges that his conduct with regard to the minor children was negligent, intentional, and unlawful. Because of the way in which the plaintiffs’ complaint is worded, Myers believes that the combination and commercial policies cover him in the plaintiffs’ civil action.

Our standard of review from the grant of a summary judgment motion is well-established.

... [S]ummary judgment is properly granted where the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits demonstrate that no genuine, triable issue of fact exists and that the moving party is entitled to judgment as a matter of law. Pa.R.Civ.P. 1035(b); Stidham v. Millvale Sportsmen’s Club, 421 Pa.Super. 548, 558, 618 A.2d 945, 950 (1992), appeal denied, 536 Pa. 630, 637 A.2d 290 (1993); Harford Mutual Insurance Co. v. Moorhead, 396 Pa.Super. 234, 237, 578 A.2d 492, 494 (1990), appeal denied, 527 Pa. 617, 590 A.2d 757 (1991). The trial court must examine the record in the light most favorable to the non-moving party and resolve all doubts against the moving party. Stidham v. Millvale Sportsmen’s Club, supra. The moving party’s evidence must clearly exclude any genuine issue of material fact. Id. We will reverse the trial court’s grant of summary judgment only if there has been an error of law or a clear abuse of discretion. Britamco Underwriters, Inc. v. Weiner, 431 Pa.Super. 276, 279, 636 A.2d 649, 651 (1994); McCain v. Pennbank, 379 Pa.Super. 313, 318, 549 A.2d 1311, 1313 (1988) (citations omitted).

Aetna Cas. and Sur. Co. v. Roe, 437 Pa.Super. 414, 419-20, 650 A.2d 94, 97 (1994).

An insurer’s duty to defend and indemnify the insured may be resolved via declaratory judgment actions. Harleysville Mut. Ins. Co. v. Madison, 415 Pa.Super. 361, 365, 609 A.2d 564, 566-67 (1992). See Aetna Cas. and Sur. Co. v. Roe, supra at 420, 650 A.2d at 98 (Superior Court reviewed trial court’s resolution of insurer’s action seeking declaration of duty to defend and indemnify); Uguccioni v. USF & G, 408 Pa.Super. 511, 513, 597 A.2d 149, 150 (1991) (same). See also Stidham v. Millvale Sportsmen’s Club, supra at 565, 618 A.2d at 954 (“... declaratory judgment action ... might have resolved at the outset the question of [the insurer’s] duty to defend”). In such actions, the allegations raised in the underlying complaint alone fix the insurer’s duty to defend. Aetna Cas. and Sur. Co. v. Roe, supra at 422, 650 A.2d at 98 (citing Stidham v. Millvale Sportsmen’s Club, supra at 564, 618 A.2d at 953; Germantown Ins. Co. v. Martin, 407 Pa.Super. 326, 331, 595 A.2d 1172, 1174 (1991), allocatur denied, 531 Pa. 646, 612 A.2d 985 (1992); Harford Mut. Ins. Co. v. Moorhead, supra at 238-39, 578 A.2d at 494-95; United Services Auto. Ass’n v. Elitzky, 358 Pa.Super. 362, 368, 517 A.2d 982, 985 (1986), allocatur denied, 515 Pa. 600, 528 A.2d 957 (1987)). “It is well established that the duty to defend and pay the costs of defense is broader than the duty to indemnify.” J.H. France Refractories v. Allstate Ins. Co., 534 Pa. 29, 43-44, 626 A.2d 502, 510 (1993) (citing Erie Ins. Exchange v. Transamerica Ins. Co., 516 Pa. 574, 583, 533 A.2d 1363, 1368 (1987)). See Aetna Cas. and Sur. Co. v. Roe, supra at 421, 650 A.2d at 98 (citing Britamco Underwriters v. Weiner, supra at 280, 636 A.2d at 651; D’Auria v. Zurich Ins. Co., 352 Pa.Super. 231, 233, 507 A.2d 857, 859 (1986)). This duty to defend, however, is not activated by every allegation raised against the insured. Id. (citing D’Auria v. Zurich Ins. Co., supra at 234, 507 A.2d at 859). The nature of the allegations themselves, not the details surrounding the injuries suffered, are the basis upon which the insurer’s duty to defend the insured arises. Id. at 422, 650 A.2d at 98 (quoting D’Auria v. Zurich Ins. Co., supra at 234, 507 A.2d at 859; Springfield Tp. v. Indemnity Ins. Co. of North America, 361 Pa. 461, 464, 64 A.2d 761, 762 (1949)). Thus, only allegations contained within the underlying complaint pertaining to injuries which are either actually or potentially within the scope of the insurance policy obligate the insurer to defend the insured. Id. at 422, 650 A.2d at 99 (citing American States Ins. Co. v. Maryland Cas. Co., 427 Pa.Super. 170, 183, 628 A.2d 880, 887 (1993); Stidham v. Millvale Sportsmen’s Club, supra at 564, 618 A.2d at 953).

Where liability insurance cases concerning the sexual molestation of children by an insured arise, this Court recently held that the inferred intent rule, as utilized in Wiley v. State Farm Fire and Cas. Co., 995 F.2d 457 (3rd Cir.1993), shall be applied. Aetna Cas. and Sur. Co. v. Roe, supra at 429, 650 A.2d at 102.

[I]n certain cases a court can infer an actor’s intent as a matter of law from the nature and character of his or her acts.... [I]n child abuse cases ... the inferred intent to harm is an irrebuttable presumption. The criminalization of child abuse additionally serves to place the insured on notice of the societal understanding that the harm from such conduct is inseparable from its performance.... [H]arm to children in sexual molestation cases is inherent in the very act of sexual assault committed on a child, regardless of the motivation for or nature of such assault, and ... the resulting injuries are, as a matter of law, intentional....

Id. at 428-29, 650 A.2d at 102 (citations, quotations, and footnotes omitted). The characterization of the horrific injuries suffered by the children who are the victims of sexual molestation as resulting from negligence “would ... create a legal oxymoron as an extension of tort law....” Id. at 431, 650 A.2d at 103.

Instantly, the plaintiffs’ complaint in the civil action underlying Erie’s petition for declaratory relief charged Myers with sexual molestation of the minor children resulting from Myers’ negligent, intentional, and unlawful conduct. But, pursuant to the inferred intent rule, injuries resulting from sexual assault committed on children in cases of sexual molestation are intentional as a matter of law. Hence, despite the wording of the plaintiffs’ complaint, only allegations of injuries resulting from Myers’ intentional conduct towards the minor children were raised by the plaintiffs. Both combination and commercial policies exclude insurance coverage for injuries resulting from intentional acts. Moreover, any sexual molestation of the minor children by Myers does not arise “out of the ownership, maintenance, use, loading or unloading” of Claypoole, Inc.’s automobiles as is required by these policies. Simply stated, no causal connection exists between the operation of a school bus and the injuries suffered by its minor passengers who have been sexually molested by its driver. Thus, none of the allegations raised by the plaintiffs against Myers in their underlying complaint pertain to injuries which are actually or potentially within the scope of the combination and commercial policies. In other words, Erie never agreed to provide insurance coverage to Myers for the injuries alleged by the plaintiffs.

Because the injuries alleged by the plaintiffs are outside the scope of the combination and commercial policies, Myers is not entitled to judgment as a matter of law. Consequently, the trial court committed an error of law in entering summary judgment in favor of Myers. Under the circumstances, we conclude that Erie possesses no legal obligation to defend or indemnify Myers; summary judgment in Erie’s favor should have been entered and its petition for declaratory relief should have been granted. To hold otherwise would be the equivalent of characterizing the sexual molestation of children as a negligent act caused by being in the wrong place at the wrong time instead of characterizing it as an intentional act resulting from the repugnant conduct of the molester. We refuse to take such a benign view of sexual molestation. Therefore, we cannot require Erie to pay the costs of Myers’ defense in the plaintiffs’ underlying civil action.

Based upon the foregoing, we hold that Erie’s appeal from the trial court’s order requiring it to defend and indemnify Claypoole and Claypoole, Inc. is moot and Erie has no duty to defend or indemnify Myers. Accordingly, we dismiss this appeal in part, reverse in part, and remand in part for entry of summary judgment in favor of Erie.

Appeal dismissed in part; order reversed and case remanded in part. Jurisdiction relinquished.

      . The trial court order approving this settlement was entered September 21, 1994.

      . Of course, Claypoole and Claypoole, Inc. expended considerable resources defending themselves in Erie’s declaratory judgment action. Thus, these expenditures were not incurred by Claypoole and Claypoole, Inc. in defense of the plaintiffs’ underlying civil action against them. Therefore, for purposes of determining the propriety of this portion of the appeal, such expenditures are outside the scope of the coverage contemplated by the combination and commercial policies and are the sole responsibility of Claypoole and Claypoole, Inc. After all, "[t]he purpose of awarding declaratory relief is to finally settle and make certain the rights or legal status of the parties.” Geisinger Clinic v. DiCuccio, 414 Pa.Super. 85, 104, 606 A.2d 509, 519 (1992), allocatur denied, 536 Pa. 625, 637 A.2d 285 (1993), cert. denied, —U.S. —, 115 S.Ct. 904, 130 L.Ed.2d 788 (1995) (citing New London Oil Co., Inc.
        V. Ziegler, 336 Pa.Super. 380, 383, 485 A.2d 1131, 1133 (1984)). Further, the Declaratory Judgment Act pertinently provides as follows:
      Any person interested under a deed, will, written contract, or other writings constituting a contract, or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise, and obtain a declaration of rights, status, or other legal relations thereunder.
      42 Pa.C.S.A. § 7533. Accordingly, if the resources expended by Claypoole and Claypoole, Inc. in defending against Erie's declaratory judgment action were not segregated from their expenditures in defending against the plaintiffs’ underlying civil action, the purpose behind declaratory relief and Erie’s rights pursuant to 42 Pa.C.S.A. § 7533 would be defeated.

      . Even though the trial court ruled that the issue of Erie’s duty to indemnify Myers was not yet ripe for judicial review, we can resolve this issue because we hold that Erie has no duty to defend Myers. As the duty to defend is broader than the duty to indemnify, Erie could not be required to indemnify Myers without also being obligated to defend him.


author: POPOVICH, Judge:

text:
    673 A.2d 357
    COMMONWEALTH of Pennsylvania, Appellee, v. Randy THOMSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 18, 1995.
    Filed March 13, 1996.

      Wayne S. Lipecky, Assistant Public Defender, Ambridge, for appellant.
    Ahmed T. Aziz, Assistant District Attorney, Aliquippa, for Commonwealth, appellee.
    Before BECK, POPOVICH and BROSKY, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Beaver County, following appellant’s conviction on one count of rape and two counts of indecent assault. Appellant contends that the lower court improperly denied appellant’s request for a new trial because the evidence was insufficient as a matter of law to sustain his conviction for rape, and there was after-discovered evidence relevant to the victim’s capability to consent. We affirm.

Appellant first argues that the evidence presented was insufficient to sustain his conviction for rape. “In reviewing the sufficiency of the evidence, we view all the evidence admitted at trial in the light most favorable to the Commonwealth, as verdict winner, to see whether there is sufficient evidence to enable the jury to find every element of the crime beyond a reasonable doubt.” Commonwealth v. Thomas, 522 Pa. 256, 561 A.2d 699, 702 (1989) (citations omitted). Although a conviction must be based on “more than mere suspicion or conjecture, the Commonwealth need not establish guilt to a mathematical certainty.” Commonwealth v. Badman, 398 Pa.Super. 315, 580 A.2d 1367, 1372 (1990) (citation omitted).

Using this standard, the evidence adduced at trial and at subsequent hearings, together with all reasonable inferences in favor of the Commonwealth, discloses the following: On December 9, 1993, the victim, a twenty-two year old female, was baby sitting for appellant and his girlfriend. After appellant and his girlfriend returned home, appellant offered to give the victim a ride to her house. Despite his girlfriend’s objection, appellant and the victim got into the vehicle. During the drive to the victim’s house, appellant, pretending that his car was overheating, made a detour and parked his vehicle at a baseball field. Appellant and the victim then had sexual intercourse in the front seat of the vehicle. While they were engaging in sex, appellant’s girlfriend arrived on the scene. The girlfriend went to the the victim’s house and informed the victim’s mother that her daughter was having sex with appellant. The victim’s mother lodged a complaint with the police, resulting in appellant’s arrest.

At trial, the Commonwealth produced a forensic psychiatrist who testified that the victim was incapable of consenting to sexual intercourse because she was mildly mentally retarded. The psychiatrist further testified that the victim’s retardation was of the type noticeable by a lay person. There was no rebuttal evidence by the defense as to the victim’s incapability to consent.

After a non-jury trial, appellant was found guilty of one count of rape and two counts of indecent assault. The court specifically found that the victim, due to her mental retardation, was incapable of consenting to sexual intercourse.

At the sentencing hearing which was held on November 30, 1994, appellant discovered that the victim was pregnant. It was undisputed that appellant was not the individual who impregnated her. After discovering that the victim was pregnant by someone other than himself, and, thus, clearly had sexual intercourse with at least one other male, appellant concluded that she was capable of consenting to sexual intercourse. The lower court rejected appellant’s argument, and sentenced him to three to six years for rape and six to twelve months on each of the indecent assault convictions, sentences to run concurrently. Appellant filed post-sentence motions with the lower court. The motions were denied, and this appeal followed.

Appellant was convicted of rape under 18 Pa.C.S.A. § 3121(4). In regard to this conviction, appellant argues that the Commonwealth failed to prove that the victim was incapable of consenting to sexual intercourse or, in the alternative, the Commonwealth failed to prove that appellant knowingly, intentionally, or recklessly took advantage of or had knowledge of the victim’s mental deficiencies. While we agree with appellant that these are material elements of the offense which the Commonwealth needed to prove in order for the lower court to find appellant guilty of rape under section 3121, subsection 4, we disagree with his assertion that sufficient evidence was not presented to sustain the Commonwealth’s burden of proof.

Under section 3121, subsection 4, “[a] person commits a felony of the first degree when he engages in sexual intercourse with another person not his spouse: who is so mentally deranged or deficient that such person is incapable of consent.” While the subsection of rape dealing with incompetents does not state that a person must know of the victim’s condition, it is nevertheless an element of proof in the Commonwealth’s case to prove mens rea. See Commonwealth v. Carter, 274 Pa.Super. 538, 418 A.2d 537 (1980).

Since § 3121 has no intent provision and since the victim’s mental condition is a material element of the offense, the Commonwealth, under § 302(c) [of the Crimes Code], must prove beyond a reasonable doubt that the ... [appellant] acted at least recklessly with regard to every material element of the section, including that the victim was so mentally deranged or deficient that she was incapable of consent.

Carter, 418 A.2d at 539. Accordingly, the Commonwealth must prove that appellant acted intentionally, knowingly or recklessly as to the victim’s mental deficiency. See Carter, supra.

We find that there was sufficient evidence supporting the finding that the victim was incapable of consenting to sexual intercourse because of her mental deficiency, and that appellant acted at least recklessly with regard to the victim’s mental deficiency.

The uncontradicted medical testimony offered at trial by the Commonwealth was that the victim was incapable of consenting to sexual intercourse. -The forensic psychiatrist, who both parties stipulated was an expert in her field, testified that she conducted a formal mental status examination of the victim. Based upon this examination, it was her opinion that with a reasonable degree of medical certainty the victim was incapable of consenting to sexual intercourse. The expert testified that she behaved in a manner similar to that of a child, that she was unable to maintain herself in a mature fashion and that she had limitations on her daily life. The expert further testified that when she was questioned about her birth date, about the identity of the current President of the United States and about the reason for the difference between her last name and her mother’s last name, the victim was unable to provide correct answers. When she was asked if she knew the name of the current President’s wife, the victim replied “No, I’ve never met his wife.” The expert also testified that the victim would be able to do simple chores around the house, including cooking and cleaning, but that she would be unable to go to the store, for example, because she was unable to understand the concept of money. Based on these factors, and numerous others, the expert concluded that the victim did not have good judgment, was highly influenced by people and was unable to understand the consequences of her actions. Accordingly, the expert opined that the victim was mildly mentally retarded with an intelligence quotient (I.Q.) of approximately 58 and was incapable of consenting to sexual intercourse.

Based on the expert’s testimony, which the lower court found to be credible, we find that there was sufficient evidence to support the finding that the victim was incapable of consenting to sexual intercourse.

Next, we must determine whether there was sufficient evidence to find that appellant acted at least recklessly with regard to the victim’s mental deficiency. Again, the Commonwealth offered the unrebutted testimony of the forensic psychiatrist to prove that appellant had the requisite mental state.

At the trial, the expert testified that it would be readily apparent to a lay person, someone not trained as a psychiatrist, that the victim was mentally retarded. The expert testified that the victim’s limitations would be readily discovered by someone who had only limited contact with her. Appellant admits that he spent a great deal of time with the victim and, thus, he would have had the opportunity to observe her limitations.

In addition, we note that the lower court had the opportunity to observe the victim while she testified, and, thus, was in a far better position to determine whether her mental deficiency was readily apparent to a lay person. We further note that the victim’s mother testified that she had informed the appellant and his girlfriend that the victim was mentally handicapped.

“This is not a situation in which a man met a woman under normal circumstances with no hint that the woman may [have been] unable to consent, only to find later that she was in fact incompetent.” Carter; 418 A.2d at 540.

The victim’s mother’s testimony that she informed appellant of her daughter’s mental deficiencies demonstrates that appellant had actual knowledge of the victim’s condition. In addition, the remainder of the Commonwealth’s evidence shows circumstances which the trier of fact could find to be known by appellant which created a substantial risk that the victim was of such mental infirmity as to render her incapable of consenting to sexual intercourse.

Appellant’s next contention is that he is entitled to a new trial on the basis of after-discovered evidence. Specifically, appellant argues that if the Commonwealth’s expert would have known during the trial that the victim was pregnant by someone other than appellant, and, thus, she was engaging in sexual relations with at least one other individual, the expert would not have concluded that the victim was incapable of consenting to sexual intercourse. We hold that the motion was denied properly since appellant’s new evidence does not meet the Pennsylvania standard for after-discovered evidence.

After-discovered evidence is a proper basis for a new trial only if:

(1) it has been discovered after the trial and could not have been obtained at or prior to the conclusion of the trial by the exercise of reasonable diligence; (2) is not merely corroborative or cumulative; (3) will not be used solely for impeaching credibility of a witness; and (4) is of such nature and character that a different verdict will likely result if a new trial is granted.

Commonwealth v. Moore, 534 Pa. 527, 633 A.2d 1119, 1135-1136 (1993) (citations omitted).

We find that appellant has arguably satisfied prongs one, two and three of the aforementioned test. However, appellant has failed to demonstrate that the after-discovered evidence would likely result in a different verdict if a new trial were granted.

As discussed previously, the rape section and subsection at issue in this case provides the following: “A person commits a felony of the first degree when he engages in sexual intercourse with another person not his spouse: who is so mentally deranged or deficient that such person is incapable of consent.” 18 Pa.C.S.A. § 3121(4). The evil or harm that is sought to be prevented by this provision regarding mentally deranged people is not sexual intercourse, but sexual intercourse with people who are incapable of consenting to sexual intercourse. Commonwealth v. Carter, 274 Pa.Super. 538, 418 A.2d 537, 539 (1980).

Under section 3121, subsection 4, the Commonwealth must prove beyond a reasonable doubt that the victim was so mentally deranged or deficient that she was incapable of consenting to sexual intercourse. See Carter, supra. Here, the Commonwealth fulfilled this burden through the unrebutted testimony of a forensic psychiatrist. The expert testified that based upon a formal mental status examination which she had conducted, it was her opinion with a reasonable degree of medical certainty that the victim was incapable of consenting to sexual intercourse. The expert described the various factors which she considered, including orientation, memory, judgement, ability to do calculations, and ability to comprehend abstractions, to arrive at her conclusion. As indicated previously, the expert further testified that the victim behaved in a manner similar to that of a child, she was unable to maintain herself in a mature fashion and she had limitations on her daily life. In fact, the expert testified that the “[victim’s] judgement was impaired in a very rude elementary level.” N.T. 6/29/94 p. 15.

We fail to see how the knowledge that the victim was impregnated by someone other than appellant would change the expert’s opinion. A person is able to become pregnant without having the capacity to give consent to sexual intercourse. That is, consent is not necessary to become pregnant. The fact that the victim had sexual intercourse with another individual does not render her capable of giving consent during that encounter nor during the encounter with appellant.

Having found that the after-discovered evidence offered by appellant is not of a nature and character that would likely result in a different verdict if a new trial were granted, we find that the lower court properly denied appellant’s request for a new trial on this basis.

For all of the foregoing reasons, we affirm the lower court’s judgment of sentence.

Affirmed.

      . Appellant does not dispute the sufficiency of the evidence in regard to his conviction on two counts of indecent assault.

      . As the expert explained during her testimony, the American Psychiatric Association recognizes that mildly mentally retarded individuals fall between those who are moderately mentally retarded and those who are dull normal. N.T. 6/29/94 p.p. 22-23. Individuals who are moderately mentally retarded generally are institutionalized because they are profoundly impaired, while individuals who are in the dull normal range generally are able to care for themselves. N.T. 6/29/94 p.p. 22-23. Individuals who are mildly mentally retarded are able to perform simple tasks, but require assistance with more difficult tasks and generally are unable to "hold down jobs.” N.T. 6/29/94 p. 43.