author: WIEAND, Judge: BECK, Judge,

text:
    571 A.2d 482
    COMMONWEALTH of Pennsylvania v. ONE 1985 DARK BLUE MERCEDES BENZ CAR seized from Richard E. Isaac. Appeal of Ronald E. ISAAC.
    Superior Court of Pennsylvania.
    Argued August 15, 1989.
    Decided Jan. 5, 1990.
    Reargument Denied March 16, 1990.

      William T. Lawson, Philadelphia, for appellant.
    David S. Thalheimer, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before WIEAND, BECK and MONTGOMERY, JJ.
   WIEAND, Judge:

This appeal has been taken from an order which denied a petition by the registered owner of a Mercedes Benz vehicle for a return thereof and directed forfeiture of the vehicle to the Commonwealth.

On May 2,1988, police seized from the streets of Philadelphia a dark blue, 1985 Mercedes Benz automobile. On June 17, 1988, a petition for return of the vehicle was filed by Ronald Isaac, the registered owner thereof. The Commonwealth resisted the petition, contending that the real owner was Richard Isaac who had been engaged in the illegal distribution of drugs.

At a hearing thereon, Ronald Isaac showed that he was the registered owner of the Mercedes vehicle. This fact is not disputed. His ownership interest, therefore, was sufficient to confer standing upon Ronald Isaac to maintain an action for the vehicle’s return. In order to participate in a forfeiture contest, a contestant need not prove the merit of his underlying claim; he must merely be able to show “a facially colorable interest in the proceeding.” United States v. One 18th Century Columbian Monstrance, 797 F.2d 1370, 1375 (5th Cir.1986), cert. denied, 481 U.S. 1014, 107 S.Ct. 1889, 95 L.Ed.2d 496 (1987). Indeed, “[a] claimant need not own the property in order to have standing to contest its forfeiture; a lesser property interest, such as a possessory interest, is sufficient standing.” United States v. $38,000.00 in U.S. Currency, 816 F.2d 1538, 1544 (11th Cir.1987). The fact that Ronald Isaac was the registered owner of the Mercedes Benz automobile was a sufficient interest to permit his participation in the instant forfeiture case. The Pennsylvania statute, at 35 P.S. § 780-129(d), expressly provides that “[u]pon the filing of a claim for the property setting forth a right of possession, the case shall be deemed at issue____” (emphasis added).

Ronald Isaac testified further at the hearing regarding the manner in which he had purchased the vehicle. During his cross-examination, however, the lawyer for the Commonwealth was able to cast doubt upon Ronald’s contention that he was the real owner of the vehicle. For example, the Commonwealth was able to establish that the vehicle had been used by Ronald’s brother, Richard, and that Ronald was unfamiliar with various features of the vehicle, such as the sunroof, the windshield wiper, and the cost of a car telephone. The Commonwealth also showed that the license plate displayed the words, “Rick’s 190.”

The Commonwealth, on the other hand, failed to produce any evidence that illegal drugs had been found in the Mercedes vehicle or that it had ever had any connection whatsoever with illegal drug transactions. The Commonwealth showed only that two years earlier, in 1986, Richard Isaac had been arrested on three occasions for drug dealing and that, on those occasions, illegal drugs had been found in the white Cadillac which he then had been driving.

From this evidence, the trial court found that Ronald Isaac was a “sham owner” and that Richard Isaac was the real owner of the Mercedes vehicle. The court concluded, therefore, that Ronald Isaac lacked “standing” to assert a right to the vehicle. However, the court not only refused to return the vehicle to Ronald Isaac, but it also ordered the vehicle forfeited to the Commonwealth. It did so without any evidence that the vehicle had ever been used or possessed for an unlawful purpose by either Ronald or Richard Isaac. This was error.

At the time when the Mercedes vehicle was seized by the police, forfeiture proceedings were governed by The Controlled Substance, Drug, Device and Cosmetic Act of April 14, 1972, P.L. 233, No. 64, § 1, as amended, 35 P.S. §§ 780-128 and 780-129. With respect to the burden of proof, the statute provided at 35 P.S. § 780-129(e) as follows:

(e) At the time of the hearing, if the Commonwealth produces evidence that the property in question was unlawfully used or possessed, the burden shall be upon the claimant to show:
(1) That the claimant is the owner of the property or the holder of a chattel mortgage or contract of conditional sale thereon;
(2) That the claimant lawfully acquired the property;
(3) That it was not unlawfully used or possessed by him;
(4) In the event that it shall appear that the property was unlawfully used or possessed by a person other than the claimant, then the claimant shall show that the unlawful use or possession was without his knowledge or consent. (Emphasis added).

This law remained in effect when the instant action was commenced by petition. As such, it is applicable to our review. See: Duquesne Light Co. v. U.S. Industrial Fabricators, Inc., 334 Pa.Super. 444, 447 n. 2, 483 A.2d 534, 536 n. 2 (1984); Trinity Area School District v. Dickson, 223 Pa.Super. 546, 551, 302 A.2d 481, 484 (1973).

Under this statute, “the Commonwealth had the initial burden of producing evidence that the property sought to be forfeited had been unlawfully used or possessed, i.e., that it was contraband.” Commonwealth v. One 1985 Cadillac Seville, 371 Pa.Super. 390, 395, 538 A.2d 71, 74 (1988). See: Estate of Peetros by Peetros v. County Detectives and District Attorney’s Office, 341 Pa.Super. 558, 492 A.2d 6 (1985); Commonwealth v. 1978 Toyota, 321 Pa.Super. 549, 468 A.2d 1125 (1983). See also: Sugalski v. Cochran, 365 Pa.Super. 370, 377, 529 A.2d 1104, 1107 (1987). It is only after the Commonwealth has sustained its initial burden of proof that the burden shifts to the claimant seeking a return of the property. Commonwealth v. One 1985 Cadillac Seville, supra at 395-396, 538 A.2d at 74.

Property subject to forfeiture includes items which are illegal per se and which have been denoted contraband. Also subject to forfeiture is property which has been derived from or used in furtherance of illegal activity, such as money derived from the illegal sale of drugs. This is known as derivative contraband. See: Commonwealth v. Fassnacht, 246 Pa.Super. 42, 46, 369 A.2d 800, 802 (1977). In Commonwealth v. Landy, 240 Pa.Super. 458, 465, 362 A.2d 999, 1002 (1976) the Court stated, “Money proceeds directly derived from and directly traceable to the sale of a controlled substance are derivative contraband subject to forfeiture.” By logical extension, illegal proceeds traceable to specific property would also be derivative contraband. See: US. v. Premises Known as 8584 Old Brownsville Rd., Shelby Co., Tenn., 736 F.2d 1129 (6th Cir.1984); U.S. v. One 1980 Chevrolet Blazer Auto, 572 F.Supp. 994 (E.D.N.Y.1983); U.S. v. Certain Real Property Situated at Rt 3, Box 247 E., Mountain Home, Ark., 568 F.Supp. 434 (W.D.Ark.1983).

Property is not derivative contraband merely because it is owned by or occasionally used by a drug offender for legitimate purposes. Objects do not acquire “guilt by association” merely because they are owned by a person who has been engaged in criminal conduct. Petition of Maglisco, 341 Pa.Super. 525, 533, 491 A.2d 1381, 1385 (1985). The Commonwealth cannot deprive a person of his or her property and thereby impose a penalty upon him by seizing his property without showing that the property was derived from or was used to further criminal activity. The requirement that a sufficient nexus exist between the property and the prohibited criminal activity serves to mitigate the potentially harsh results of permitting the Commonwealth to penalize a citizen by a civil action against his property rather than a criminal action against his person. Comment, Due Process Implications of Shifting The Burden of Proof in Forfeiture Proceeding Arising Out of Illegal Drug Transactions, 1984 Duke L.J. 822, 831.

A Mercedes Benz vehicle is not illegal per se. Although it can become derivative contraband if it is connected with illegal drug activity, in this case the Commonwealth failed to offer even a scintilla of evidence that the Mercedes automobile had been used in the conduct of or to further illegal drug transactions. Similarly, it failed to show that proceeds of illegal drug transactions had been used to purchase the Mercedes vehicle. There was, in short, no proof of any nexus between criminal drug activity and the vehicle seized by the police. At best, the Commonwealth showed that the vehicle had been used as a means of transportation by Richard Isaac, who was suspected of being involved in the illegal drug trade.

In the absence of evidence establishing a nexus between criminal activity and the Mercedes vehicle, the trial court could not properly order the vehicle forfeited to the Commonwealth. Even if Ronald Isaac were a “sham owner,” the vehicle could not be forfeited unless the Commonwealth showed that it had been used for an unlawful purpose. In the absence of such evidence, the trial court was required to return the vehicle to the registered owner. It was not for the trial court to determine further whether Ronald Isaac or Richard Isaac was the real owner of the vehicle. Irrespective of who the real owner was, without evidence that the vehicle was subject to forfeiture, the vehicle could not be awarded to the Commonwealth.

We do not hold, as the dissent accuses us of doing, that anyone can challenge the forfeiture of property by the Commonwealth. However, it is clear that a registered owner has a sufficient interest in property to participate in a proceeding to forfeit the same. Standing to participate in the proceeding is identified in subsection (d) of the statute (35 P.S. § 780-129(d)) and must be distinguished from the proof required of a party before he becomes entitled to a return of property which has been shown to be subject to forfeiture under subsection (e) of the statute (35 P.S. § 780-129(e)). An innocent owner who seeks to recover derivative contraband must show not only ownership but also that he or she lawfully acquired the property and did not participate in or consent to the unlawful use or possession thereof. Id. In this case, the appellant was not required to show that he was an innocent owner out of possession of the vehicle, for the Commonwealth failed completely to show that the vehicle was subject to forfeiture. As such, the rights of the appellant, as registered owner of the vehicle, were superior to the right of the Commonwealth to declare a forfeiture of the vehicle.

Finally, we observe that if the Commonwealth were to prevail in this case, the registered owner of the vehicle would be compelled to suffer a forfeiture without any evidence that the vehicle had ever been used for an illegal purpose. To permit such a forfeiture would not only defy the clearly expressed intent of the legislature, but it would run afoul of due process guarantees.

The order of the trial court is reversed.

BECK, J., files a dissenting opinion.

BECK, Judge,

dissenting:

I respectfully dissent from the majority’s order because I believe that parties petitioning for the return of a motor vehicle have the initial burden of proving that they possess an ownership interest in the motor vehicle sufficient to give them standing to seek the vehicle’s return. Because I believe that the petitioner in the instant appeal lacks the requisite possessory interest in the motor vehicle at issue, I would affirm that portion of the trial court’s order that denied appellant’s Petition for Return of Property.

On May 2, 1988, Philadelphia police seized a 1985 Mercedes Benz automobile pursuant to the arrest of Richard Isaac for illegal drug trafficking. Subsequently, Ronald Isaac, Richard Isaac’s brother, filed a Petition for Return of Property, claiming to be the owner of the automobile.

At the hearing in the Court of Common Pleas of Philadelphia County, Ronald introduced evidence that he was the registered owner of the vehicle. In addition, Ronald testified as to the manner in which he had purchased the vehicle. The Commonwealth opposed Ronald’s petition, arguing that the vehicle constituted contraband and was therefore subject to forfeiture under 35 P.S. §§ 780-128 and 780-129. The Commonwealth sought to establish a connection between the Mercedes Benz and the drug trafficking activities of Richard Isaac.

The trial court, per Judge McCrudden, concluded that Ronald lacked standing to petition for the return of the vehicle because the registration of the car in Ronald’s name was merely a “front” to hide the assets of Richard from any forfeiture which might result from his drug trafficking activities.

On appeal, appellant first contends that the Commonwealth failed to meet its threshold burden of establishing a nexus between the automobile and illegal activity. Appellant argues that absent this nexus, the automobile did not constitute contraband, and was, therefore, not subject to forfeiture. Appellant also claims that the trial court erred in concluding that he lacked standing to seek the return of the automobile.

The majority opinion addresses the issues in the order the appellant presented them. The majority first concludes that the Commonwealth failed to meet its burden of establishing that the automobile had been used either in the conduct of or in furtherance of illegal drug transactions. The majority next concludes that, solely on the basis of the automobile's having been registered in the appellant’s name, the appellant has a possessory interest in the car sufficient to create standing to seek its return. Because I believe that the issue of standing constitutes a threshold issue which must be addressed before a claimant can seek the return of property, I commence my analysis with the question of standing. See Mercado v. United States Customs Service, 873 F.2d 641, 644 (2nd Cir.1989) (claimant must establish standing before he can contest forfeiture); United States v. Two Hundred Eighty Thousand Five Hundred Five ($280,505) Dollars in US. Currency, 655 F.Supp. 1487, 1495 (S.D.Fla.1986) (claimant must establish standing before government has burden to prove connection exists between property forfeited and illegal drug activity); United States v. One 1977 36 Foot Cigarette Ocean Racer, 624 F.Supp. 290, 294 (S.D.Fla.1985) (standing constitutes threshold issue; claimant cannot challenge forfeiture without first establishing standing).

Analysis of standing issues in cases involving the seizure of property requires a fact specific approach. One 1985 Cadillac Seville, 371 Pa.Super. at 397, 538 A.2d at 75 (1988). Courts have been reluctant to find ownership and standing in an individual based solely on the fact that a vehicle was titled and/or insured in that individual’s name. See United States v. One 1945 Douglas C-54 (DC-4) Aircraft, 647 F.2d 864, 866-67 (8th Cir.1981), cert. denied, 454 U.S. 1143, 102 S.Ct. 1002, 71 L.Ed.2d 294 (1982), (certificate of aircraft registration issued for registration purposes in individual’s name insufficient to establish ownership; person exercising dominion and control is true owner for purpose of contesting forfeiture proceeding); United States v. One 1945 Douglas C-54 (C-4) Aircraft, 604 F.2d 27, 28 (8th Cir.1979), appeal after remand, 647 F.2d 864 (8th Cir.1981), cert. denied, 454 U.S. 1143, 102 S.Ct. 1002, 71 L.Ed.2d 294 (1982) (possession of bare legal title may be insufficient to establish ownership); U.S. v. One Brown 1978 Mercedes Benz, 657 F.Supp. 316, 319 (E.D.Mo.1987) (paying for vehicle, keeping it at one’s home and exercising dominion and control over it to the exclusion of others sufficient basis upon which to find ownership); Two Hundred Eighty Thousand Five Hundred Five Dollars, 655 F.Supp. at 1495 (claimant who possessed legal title lacked standing to contest forfeiture because she could not prove she could afford eight thousand ($8,000.00) dollar car payment and could not document where money to pay for car came from); United States v. One (1) Homemade Vessel Named Barracuda, 625 F.Supp. 893, 897 (S.D.Fla.1986), aff'd, 858 F.2d 643 (1988) (possession of bare legal title by claimant who does not exercise dominion and control insufficient to establish standing); One Racer, 624 F.Supp. at 294 (“bare legal title may be insufficient to establish ownership”). Despite this reluctance, the majority , in the instant appeal explains that “Ronald Isaac showed that he was the registered owner of the Mercedes vehicle.” Maj. op. at 488. Based upon this fact, the majority concluded that “[h]is ownership interest, therefore, was sufficient to confer standing upon Ronald Isaac to maintain an action for the vehicle’s return.” Id. I am unable to conclude, however, that the mere assertion that a car is registered under one’s name provides a sufficient factual basis upon which to base ownership and standing.

At the hearing, Ronald established that he was indeed the registered owner of the Mercedes Benz. On cross-examination, however, his testimony was seriously impeached.

Ronald testified that his car did not possess a sunroof. Yet pictures of the car introduced at the hearing convinced the trial judge that the car did possess a sunroof. In addition, Ronald knew that the car had a mobile telephone, but did not know how much the phone cost, when or where it was installed, the amount of the monthly charges, or who paid the bills. Ronald also testified that the car had two windshield wipers, when in fact the Commonwealth introduced evidence at trial that established that the car had only one windshield wiper.

At the hearing, the Commonwealth also introduced evidence that the car sported a vanity license plate that displayed the words “Rick’s 190.” The Commonwealth also introduced a photograph of Richard holding a birthday cake, which was decorated with the words “Happy Birthday, Rick’s 190” and a drawing of a car with a Mercedes Benz emblem. Although Richard testified that the birthday party was for his brother Ronald, Richard admitted that Ronald did not even attend the party. Also, although the evidence adduced at trial was contradictory, the trial court could have concluded that Richard possessed his own set of keys for the automobile.

These factual findings convinced the trial court that Ronald was merely acting as a sham owner of the car for his brother Richard and, as a result, lacked standing to seek the vehicle’s return.

On appeal, it is the duty of the appellate court to assess whether the record contains sufficient evidence to support the trial judge’s factual findings. Allegheny County v. Monzo, 509 Pa. 26, 35, 500 A.2d 1096, 1101 (1985). It is clear that the record did contain sufficient evidence to support the trial judge’s findings of fact. In addition, I conclude that the trial judge did not err in concluding, based upon those factual findings, that Ronald did not possess an ownership interest in the car and, therefore, lacked standing.

In its analysis of standing, the majority notes that one need not possess a property interest to possess standing. Rather, the majority asserts that evidence of “ ‘a facially colorable interest in the proceeding’ ” is sufficient. Maj. op. at 483. (quoting United, States v. One 18th Century Colombian Monstrance, 797 F.2d 1370, 1375 (5th Cir.1986), reh’g denied, 802 F.2d 837 (5th Cir.1986), cert. denied sub nom. Newton v. United States, 481 U.S. 1014, 107 S.Ct. 1889, 95 L.Ed.2d 496 (1987)). I believe, however, that case law requires that we conduct a more in depth review of the facts of each case than the one proposed by the majority, to ascertain whether a person petitioning for the return of an item possesses a lawful ownership interest or merely a “sham” ownership interest.

For example, in One 1985 Cadillac Seville, this court concluded that although the appellant who was seeking the return of a Cadillac produced documents of title and registration bearing her name, she lacked standing to petition for the car’s return because she failed to establish that she purchased the car with her own money for her own use. One 1985 Cadillac Seville, 371 Pa.Super. at 399, 538 A.2d at 75.

In United States v. One 1981 Datsun 280ZX, 563 F.Supp. 470 (E.D.Pa.1983), relied upon by this court in One 1985 Cadillac Seville, the United States District Court for the Eastern District of Pennsylvania found that a father lacked standing to challenge the forfeiture of a car that was titled and insured under his name and allegedly utilized by his son to facilitate an attempted purchase of a controlled substance. Id. at 471, 475. The court reasoned that “[a]n inference that the car was not intended for the claimant’s use arises from the facts. The car is turbo-charged and capable of great speed. Claimant is a 72 year old man with a heart condition.” Id. at 475. The court concluded that based upon the father’s lack of use of the car, he did not exercise “dominion or control over it” and lacked an ownership interest sufficient upon which to base standing. Id.

In the case sub judice, I would hold that Ronald Isaac, too, failed to introduce sufficient evidence to establish that the Mercedes was intended for his use. Clearly the evidence does not establish that Ronald exercised dominion and control over the vehicle. Ronald was not aware that the car possessed a sunroof or had one windshield wiper. Ronald was completely ignorant of the details of the phone installed in the car. The car sported a vanity tag with Richard’s, not Ronald’s name. Finally, the Commonwealth introduced a picture of a birthday cake with an inscription which read “Happy Birthday, Rick’s 190.”

The burden was on Ronald to introduce sufficient evidence to establish that he possessed an ownership interest in the car. I would hold that the record contained sufficient evidence to support the trial judge’s findings of fact. In addition, I would conclude that based upon those factual findings, the trial judge did not err in concluding that Ronald lacked an ownership interest in the Mercedes sufficient to establish his standing to petition for the return of the car. See United States v. Premises Known as 526 Liscum Drive, Dayton, Montgomery County, Ohio, 866 F.2d 213, 217 (6th Cir.1989) (where government establishes that claimant is merely a straw owner, claimant cannot prove she possesses standing by proving she possesses only legal title; claimant must introduce evidence of exercise of dominion and control or other indicia of ownership with regard to seized item).

The majority’s rubber stamp analysis of standing permits drug offenders to create sham ownership in an individual who exercises no dominion or control over the property at issue. In finding that registration equals ownership, the majority seems to be encouraging the practice of hiding one’s assets under the name of another person who may later be able to establish a right to those assets by proving ignorance.

Rather than encouraging this practice, this court should look behind formal registration requirements to the facts of each case to determine whether ownership has been created in an individual who does not exercise dominion and control over the property at issue, merely in an effort to thwart the forfeiture provisions. As the United States District Court for the Southern District of Florida observed in One Racer:

The rationale for the rule that bare legal title may be insufficient [for standing] is based on a candid determination that things are often not what they appear to be, especially in the world of drug trafficking.... In brief, people engaged in illegal activities often attempt to disguise their interests in property by placing title in someone else’s name.
In short, courts look behind the formal title to determine whether the record title owner is a “strawman” set up to conceal the financial affairs or illegal dealings of someone else.

A Single Family Residence, 803 F.2d at 630 (quoting One Racer, 624 F.Supp. at 294-95). Where a strawman has obviously been utilized, it is incumbent upon the judiciary to deny a claimant/strawman standing to assert an ownership interest in the property at issue.

      . Although the statute was repealed on June 30, 1988, effective immediately, the provisions regarding the burden of proof were incorporated into the new law at 42 Pa.C.S. § 6802(j) as follows:
      (j) Owner’s burden of proof. — At the time of the hearing, if the Commonwealth produces evidence that the property in question was unlawfully used, possessed or otherwise subject to forfeiture under section 6801(a), the burden shall be upon the claimant to show:
      (1) That the claimant is the owner of the property or the holder of a chattel mortgage or contract of conditional sale thereon.
      (2) That the claimant lawfully acquired the property.
      (3) That it was not unlawfully used or possessed by him. In the event that it shall appear that the property was unlawfully used or possessed by a person other than the claimant, then the claimant shall show that the unlawful use or possession was without his knowledge or consent. Such absence of knowledge or consent must be reasonable under the circumstances presented.

      . The author of the opinion in Commonwealth v. One 1985 Cadillac Seville was Judge Beck. In the instant case, however, Judge Beck argues in dissent that the claimant must show that he is the real owner and that if he fails to do so, the vehicle may be forfeited to the Commonwealth even though the evidence fails to show that the vehicle was ever used for an unlawful purpose. Such an argument is in conflict with the observation of the unanimous court in Commonwealth v. One 1985 Cadillac Seville, supra, and also with the express language of the statute, which provides that the burden shall be on the claimant to show innocent ownership only "if the Commonwealth produces evidence that the property in question was unlawfully used or possessed."

      . The dissent cites several federal decisions in support of the contention that appellant lacks standing. Although the term “standing” is employed in these court's analyses, a careful reading discloses that in all the cited cases the claimant sought the return of property which had been shown to be subject to forfeiture.

      . The dissent appears to agree that the court could not properly declare a forfeiture of the Mercedes under the circumstances of this case; but it would nevertheless refuse to return the vehicle to the registered owner thereof. Such a result is untenable, for it places the vehicle in limbo, not forfeitable to the Commonwealth and not returnable to the owner. If this vehicle is not forfeitable to the Commonwealth, it is difficult to comprehend the dissent’s unwillingness to return it to the registered owner thereof.

      . It must be noted at the outset that the docket contains no evidence that the Commonwealth filed a forfeiture petition. The only issue before this court, therefore, is whether appellant’s Petition for Return of Property should be granted.

      . The relevant text from 35 P.S. § 780-129 is contained in the majority opinion.

      . Absent a threshold determination of standing, anyone could seek the return of the automobile, and as long as the Commonwealth failed to show that the automobile constituted contraband, the item would be released to the individual seeking its return, without ever requiring that individual to prove an ownership interest sufficient to satisfy the requisites of standing. The absurdity in this approach is self-evident.

      . As this court noted in Commonwealth v. One 1985 Cadillac Seville, 371 Pa.Super. 390, 538 A.2d 71, 75 (1988), because the Pennsylvania forfeiture statute was intentionally patterned after the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 881(a)(4) (1981), its federal counterpart, we have looked to cases which have interpreted the federal statute to aid our analysis of the Pennsylvania provision.

      . See, e.g., United States v. A Single Family Residence and Real Property Located at 900 Rio Vista Blvd., Fort Lauderdale, 803 F.2d 625 (11th Cir.1986). In this case, the day after a company incorporated, its president, director and sole subscriber for shares, Heidi Hartline, purchased the property at issue on behalf of the newly incorporated company. Id. at 627-28. The court found that participation in the closing was the only act Hartline ever performed on behalf of the company. Id. at 628. Hartline’s boyfriend, Baldwin, was subsequently arrested for drug trafficking. Id. One of the counts in the indictment charged that Baldwin had delivered seventy-five thousand ($75,-000.00) dollars to a realty company for the purchase of the property. Id. The United States Court of Appeals for the Eleventh Circuit held that "legal title to property in an entity other than the drug trafficker does not” by itself insulate property from forfeiture. Id. at 630. The court concluded that Hartline did not possess standing because "bare legal title by one who does not exercise dominion and control over the property is insufficient” to establish standing. Id.

      . Appellant claimed that he had a vanity license plate with his name on it, but failed to produce any evidence at the hearing to support this contention.

      . The trial court also noted that while appellant's "income was arguably sufficient to handle the car payments and insurance premiums, the combined payments amounted to over one-half of his monthly income." Trial Ct. Op. at 2. Appellant testified that his current income was approximately twenty thousand ($20,000.00) dollars, while his car and insurance payments were four hundred and eighty ($480.00) dollars a month.

      . In One 1981 Datsun 280ZX, the court relied upon United States v. One 1971 Porsche Coupe, 364 F.Supp. 745 (E.D.Pa.1978), in which a father had given his son a car as a gift, while retaining legal title in his own name. In analyzing the father’s standing to challenge the car’s forfeiture, the court focussed upon who would suffer from the vehicle’s loss. Id. at 748. The court concluded that because the father did not exercise dominion and control over the car and would not suffer from the vehicle's loss, he lacked standing to challenge its forfeiture. Id. Also, in One (1) 1983 Homemade Vessel Named Barracuda, the United States District Court for the Southern District of Florida held that an ownership or possessory interest in seized property could "be established by proof of actual possession, control, title, and financial stake.” 625 F.Supp. at 897 (emphasis added). The court utilized the word "and” rather than “or” to emphasize that all four elements had to be proven before ownership could be established.

      . Indeed, the majority observed that "[t]he fact that Ronald Isaac was the registered owner of the Mercedes Benz automobile was a sufficient interest to permit his participation in the instant forfeiture case.” Maj. op. at 483. Evidence of registration alone is insufficient to establish that appellant exercised dominion and control over the vehicle.

      . Once again it must be emphasized that the only petition before this court is a petition for the return of property. The docket contains no evidence that the Commonwealth filed a forfeiture petition. Rather, the only petition before the trial court was appellant’s. The majority accuses the dissent of concluding that if a claimant fails to establish ownership and standing, that the property at issue will be "forfeited to the Commonwealth even though the evidence fails to show that the vehicle was ever used for an unlawful purpose.” Maj. op. at 484 n. 2. The majority, however, mischaracterizes this dissenting opinion. I do not contend that failure to establish ownership or standing is a sufficient basis upon which to grant a forfeiture petition. Rather, I am suggesting that failure to establish standing does constitute a sufficient basis for rejecting a claimant’s petition for return of property. My refusal to consider whether the vehicle should be forfeited absent the filing of a forfeiture petition by the Commonwealth does not, as the majority contends, leave the vehicle in a state of limbo. Rather, the Mercedes vehicle occupies the same position as those vehicles which the Commonwealth has seized but regarding which the Commonwealth has not yet commenced forfeiture proceedings. We cannot accept the majority’s position that because the Commonwealth has not commenced forfeiture proceedings, the car should be released to a strawman who asserts that he possesses an ownership interest in the vehicle.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    571 A.2d 490
    THATCHER’S DRUGS OF WEST GOSHEN, INC., Appellee, v. CONSOLIDATED SUPERMARKETS, INC., Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 14, 1989.
    Decided March 15, 1990.

      Stephen J. Springer, Philadelphia, for appellant.
    C. Richard Morton, West Chester, for appellee.
    Before CAVANAUGH, MONTEMURO and POPOVICH, JJ.
   POPOVICH, Judge:

This case involves an appeal from the order of the Court of Common Pleas of Chester County enjoining the opening of a pharmacy by the appellant, Consolidated Supermarkets, Inc. We affirm.

The facts, as supported by the record, indicate that in 1973 the appellee/Ronald Zukin, president and sole stockholder of Thatcher’s Drugs of West Goshen, Inc., entered into a ten-year lease agreement with the then owner (Enal Construction Co.) of a shopping complex in which his retail pharmacy business was to be located. At that time, the appellee also shared a common wall with Shop-Rite supermarket, a franchise operated by the appellant.

Sometime in 1976, the appellee began selling “drinks and milk”. Thereafter, he noticed a sign in Shop-Rite’s window: “Coming soon — a Shop-Rite pharmacy”. When the appellee contacted Shop-Rite to complain, he was referred to a Joseph Greenblatt, the present vice-president and then controller of Consolidated Supermarkets, Inc.

The discussion had between the appellee and Greeiiblatt was one in which the latter stated: “We don’t want you in the dairy business”; “you get out of the dairy business and we won’t open a pharmacy____” The sign stayed in place until the appellee’s refrigerator case was removed from the pharmacy.

When the ten-year lease expired in 1983, Zukin contacted the landlord (Enal) and informed it of his desire to renew the lease for an equal term. He was told “there were some problems” since Shop-Rite wanted the area “to go into the pharmacy business”. After a subsequent discussion with Enal produced the same response the appellee began to search for new accommodations, and he did find them within three blocks of the existing store. In fact, Zukin had executed a lease and drawn a check to pay for the rent for the proposed site. However, he contacted his former landlord to advise it that he was still interested in remaining at his old location.

As a result of speaking with representatives of Enal, Zukin received a new lease increasing the rent and requiring that he occupy additional space in the shopping center. Before agreeing to the terms of the new lease, the appellee contacted Greenblatt. The two met in October of 1983 and Zukin informed Greenblatt that: (1) he had been offered a new lease, (2) he had a lease at another location for ten years, and (3) he wanted “some assurances” from Greenblatt that Shop-Rite was not going to open a pharmacy. According to Zukin, Greenblatt’s “direct words” were: “We don’t hurt the little guys. We have no desire to want to hurt you and we have no intention of opening a pharmacy”. Absent such “assurances”, Zukin would not have contacted Enal, which he did, to renew his lease and advise his realtor that he would not be moving to the new location.

The saga continues with Zukin advertising via a window-sign his “soda drinks and soda business”. This occurred in 1984. Shop-Rite reacted by placing its own sign for reading: “Shop-Rite Pharmacy coming soon”. Again, Zukin contacted Greenblatt. As before, Greenblatt wanted Zukin out of the “soda” business before he would remove the “pharmacy” sign. The end result was that both parties removed the offending placards from their respective windows.

Thereafter, Zukin learned that Shop-Rite had executed an assignment of the Betty Brite Cleaners, Inc. lease with Enal. The cleaning shop was adjacent to Shop-Rite on the side of it opposite that of the appellee’s pharmacy and was to be renovated to house a retail pharmacy in direct competition with Zukin. Efforts to dissuade Shop-Rite to discard the “pharmacy” idea proved fruitless, even though Zukin pointed out that its lease with Enal, at Section 52, prohibited the landlord from renting “any store within the premises for use as a drug store or pharmacy or for the sale of medical equipment or prosthetic supplies”, the caveat being “[t]he foregoing restriction shall not apply to any portion of the shopping center presently used as a supermarket or department store.” Id. As a consequence, Zukin filed a complaint seeking to enjoin the appellant from operating a pharmacy in the shopping center on grounds that, inter alia, it was violative of the terms of his agreement with Enal and the doctrine of equitable estoppel, ie., the appellee relied to his detriment on the assurances of the appellant’s representative of non-competition. See Complaint, Paragraph 20. And, the appellee alleged, the effectuation of the appellant’s intended pharmaceutical business would “irreparably injure and damage” his operation to the point of having to close. Id. at 21.

To assess the appellee’s complaint, a hearing was conducted on May 7 and 8, 1987, and resulted in the issuance of a preliminary injunction by the Chancellor. Following a March 10, 1988, hearing, the court made findings of fact and conclusions of law (per order of May 9, 1988) resulting in the entry of a decree nisi permanently enjoining the appellant from establishing or operating a retail prescription pharmacy. With the denial of the appellant’s exceptions, the decree nisi was made final and this appeal ensued.

Two issues are raised for our consideration, the first of which reads:

Whether in the absence of a writing signed by the parties, the Statute of Frauds precluded the lower court from restricting the use Appellant made of its premises. Before we may address the merits of the issue proffered, we need to respond to the appellee’s assertion that the appellant has waived consideration of the matter since it does not appear in its exceptions.

Under Pa.R.Civ.P. 227.1, our Supreme Court implemented the procedure by which post-trial relief is to be sought, regardless of whether the action is at law or in equity or whether the action is tried with or without a jury. See Comment to Rule 227.1. As is herein relevant, Rule 227.1 provides:

(a) After trial and upon the written Motion for Post-Trial Relief filed by any party, the court may:
* * * * * *
(1) •••
(2) ...
(3) ...
(4) affirm, modify or change the decision or decree nisi____
(5) ...
(b) Post-trial relief may not be granted unless the grounds therefor,
(1) if then available, were raised in ... request for findings of fact or conclusions of law ...; and
* # * * * SfC
(2) are specified in the motion. The motion shall state ... the grounds____ Grounds not specified are deemed waived unless leave is granted upon cause shown to specify additional grounds.
(c) Post-trial motions shall be filed within ten days after
(1) •••
(2) ... the filing of the decision or adjudication in the case of a trial without jury or equity trial.

In the case at bar, we find in the record the “Proposed Findings of Fact of the Defendant Consolidated Supermarkets, Inc.” filed March 24, 1988, none of which discusses the Statute of Frauds as a defense to the appellee’s requested relief. Further, albeit the appellant makes mention of the Statute of Frauds under the heading: “Issue presented” in its Memorandum of Law submitted to buttress its proposed findings of fact, a perusal of the “Discussion” section therein fails to uncover any reference to or elaboration upon the Statute of Frauds and its impact on the appellee’s case. See Record Nos. 29 and 30.

With the Chancellor’s May 9, 1988, order (decree nisi) precluding the appellant from opening a pharmacy, sixteen timely exceptions to the findings of fact and conclusions of law of the Chancellor were presented for his scrutiny. There were but two issues sought to be reviewed by the appellant, as is evidenced from its brief submitted along with its exceptions to the decree nisi order; to-wit:

III Issues Presented
(a) Has the Plaintiff established all of the elements of equitable estoppel by clear and convincing evidence.
(b) Did the Court improperly find that the plaintiffs [sic] repetative [sic] violation of its lease constituted a de minimus infractions [sic], as such the defense of unclean hands was not applicable.

See page 2, Record No. 37. Accord Plaintiff’s Brief Contra Defendant’s Exceptions to Adjudication at page 2, Record No. 39; Chancellor’s Opinion Sur Exceptions at page 2, Record No. 45.

It was not until eight months after the decree nisi order was entered and the original exceptions had been filed that the appellant presented a “Reply and Supplemental Brief” wherein it raised the Statute of Frauds as an argument and extensively discussed its merits to undermine the relief granted the appellee. See Record No 41. As to how and why the court below treated the issue under discussion we learn from its opinion at page 2 that:

Defendant ... filed sixteen exceptions to the adjudication and decree nisi which in its brief distilled to two main issues. A third issue [relating to the Statute of Frauds] was addressed at oral argument and I write now in response to the three issues before me.

(Emphasis added)

Rule 227.1 is quite explicit as to the conditions precedent which must be satisfied to preserve issues for review and the time-frame within which such action need be taken to avoid having a claim deemed “waived”, save where leave of court is granted upon cause shown to specify additional grounds.

There is no indication of record that the appellant submitted its challenge timely to the Chancellor’s May 9, 1988, decree nisi on the basis of the Statute of Frauds. Additionally, no leave of court was obtained to avoid the rigors of the “waiver” provisions specified in subsection (b)(2) of Rule 227.1. Thus, the issue and the grounds in support of it would normally be held to have not been preserved for our assessment.

And, the fact that the court below permitted the appellant to raise the Statute of Frauds issue at post-trial oral arguments would not save the issue from falling prey to the waiver doctrine, cf. Commercial Credit Corp. v. Cacciatiore, 343 Pa.Super. 430, 495 A.2d 540 (1985); Commonwealth v. Santana, 321 Pa.Super. 299, 468 A.2d 488 (1983), for to hold thusly would be tantamount to paying mere lip-service to our Rules of Civil Procedure. See Vorhauer v. Miller, 311 Pa.Super. 395, 457 A.2d 944 (1983). Nonetheless, there has been a shift in this Court’s approach to dealing with issues not timely filed below but addressed, nevertheless, by the trial court on their merits (without leave of court being sought and granted in advance of submission).

For example, in Commonwealth v. Hewett, 380 Pa.Super. 334, 551 A.2d 1080 (1988), a panel of this Court did not find an issue waived even though it was raised in supplemental post-trial motions without the benefit of leave of court being obtainedjas required by Pa.R.Crim.P. 1123(a). We did so on the strength of the Supreme Court’s reversal of Superior Court treating as waived an issue raised for the first time in supplemental post-trial motions without leave of court being obtained beforehand because the trial court elected to treat the issue on its merits. Reliance was had upon the Supreme Court’s per curiam reversal order in Commonwealth v. Sheaff, 518 Pa. 655, 544 A.2d 1342 (1988), of this Court’s panel decision finding waiver in Commonwealth v. Sheaff, 365 Pa.Super. 613, 530 A.2d 480 (1987). Accord Commonwealth v. Markovich, 388 Pa.Super. 244, 248, 565 A.2d 468, 470 (1989); cf. Kurtas v. Kurtas, 521 Pa. 105, 109, 555 A.2d 804, 806 (1988) (plurality). As such, we will respond to the appellant’s claim that the Statute of Frauds precluded the court below from restricting the use it made of its leased premises. In doing so, we would note that the issue is preserved not solely because of its appearance in the appellant’s post-trial supplemental brief. Rather, we address the question because of its presence in the supplemental brief, counsel’s oral argument on the issue before the trial court and the trial court exercising its discretion to address the Statute of Frauds matter. Cf. Weir by Gasper v. Estate of Ciao, 521 Pa. 491, 556 A.2d 819 (1989).

The purpose of the Statute of Frauds is to prevent the enforcement of unfounded fraudulent claims by requiring the contracts pertaining to interests in real estate be supported by written evidence. Haines v. Minnock Const. Co., 289 Pa.Super. 209, 216, 433 A.2d 30, 33 (1981).

At bar, there is no disputing the fact that the appellant’s oral promise not to open a pharmacy on its leased premises does not meet the requirements of the Statute of Frauds. However, as pointed out by the court below and asserted by the appellee to us, the promise is enforceable by estoppel under the Restatement of Property, § 524, which provides in part as follows:

An oral promise or representation that certain land will be used in a particular way, though otherwise unenforceable, is enforceable to the extent necessary to protect expenditures made in reliance upon it.

In Haines, supra, Section 524 was utilized to enforce (via an injunction) a seller’s verbal promise to a buyer of real estate not to build in the open space behind the townhouse being purchased by her.

The Haines Court wrote that the record amply supported the finding of the Chancellor that the buyer justifiably relied on the seller’s express promise that the space behind her townhouse would remain open and she had expended a substantial amount of money in purchasing the property because of her reliance upon the seller’s promise.

The appellant attempts to distinguish Haines on the grounds that contractual privity existed between the parties there, a factor missing instantly, and that Haines has been given only a limited and narrow application in Burns v. Baumgardner, 303 Pa.Super. 85, 95-96, 449 A.2d 590, 595 (1982).

We disagree with the appellant that a contract must exist initially between the parties in order to bring into play the doctrine of equitable estoppel. It must be remembered that the doctrine’s objective is to prevent the perpetuation of an injustice upon one claiming its benefits. See, e.g., Zvonik v. Zvonik, 291 Pa.Super. 309, 317-316 n. 5, 435 A.2d 1236, 1240-41 n. 5 (1981) (promissory estoppel). This precept is exemplified quite strikingly in the Supreme Court’s decision in Big Mountain Improvement Company’s Appeal, 54 Pa. 361 (1867), wherein the defendant was foreclosed from asserting the Statute of Frauds to the plaintiff’s estoppel argument entitling him to repel the defendant’s efforts to eject him from real estate.

Although the Court found that a parol contract avoiding the Statute of Frauds as to an exchange of land was not proven by the plaintiff with the defendant, the case was not at an end. The more pressing question was whether the defendant accepted “other land” in exchange for that taken by the plaintiff or encouraged the plaintiff so that the latter expended money and labor on the faith of such an oral agreement and promise “as would render it inequitable and a fraud upon him to permit the defendant to revoke its promises and disturb his possession.” The Court found in favor of the plaintiff and it did so using language which we find instructive; to-wit:

... whenever a party has induced another to repose upon the faith of his promise, though verbal, to expend his money or labor, for which he can only be remunerated by the enjoyment of the thing so promised, equity will compel the promissor to give the thing so promised, equity will compel the promissor to give such a deed or writing as shall be requisite to secure the promissee.
... a party by whose encouragement expenditures have been made [or forbearance had] to such extent as are not capable of reimbursement except by enjoyment, will be enjoined from disturbing possession. Equity estops him because he would wrong the other party by withdrawing his consent[.] There is no higher morality than is contained in the equitable principle that where between two innocent parties a loss occurs, it is to be borne by him whose act occasioned it. The morality of the rule which throws the loss upon him who occasions it, is certainly much less questionable where it results from bad faith or fraud. The result is the same; the protection of the innocent being the object of the rule in both cases. We agree ... that the defendant ] should be estopped ... from proceeding in the action of ejectment against the plaintiff.

54 Pa. at 371 & 372 (Citation omitted).

In light of the equitable principles espoused by the Supreme Court in Big Mountain, supra, and this Court in Haines, supra, we will not permit the appellant to profit from its remarks and leave the appellee without any recourse in the face of the Chancellor’s finding of fact that a promise not to compete was made by the appellant, and this induced the appellee to terminate a lease agreement that would have afforded him an alternate store site within three blocks of his present location.

At the hearing below, the appellee testified that, presently, he would not be able to relocate to a comparable site and this would cause him to go out of business if the appellant’s promise were not enforced.

As made reference to by the court below in its opinion, at pages 8-9, on the issue posed:

In Burns v. Baumgardner, [supra], the Court did not overturn the Haines holding but rather found it was unreasonable under the facts before it to impose use restrictions on an entire 175 acre tract.
In the instant case, it is clear that there was no writing assigned by the parties regarding defendant’s promise to plaintiff. The requirements of the Statute of Frauds were, therefore, not met. However, there is authority, under Haines, to enforce defendant’s promise not to open a pharmacy in its Shop Rite Supermarket. As the evidence proved that the plaintiff reasonably relied on the defendant’s promise, and renewed its own lease in reliance on said promise, the injunction against the defendant will not be disturbed.

We affirm the court’s determination to apply the doctrine of equitable estoppel to restrain the appellant from competing with the appellee during the term of the ten-year lease.

The second averment postulated and preserved by the appellant is one of “Whether Appellee proved all of the elements of an equitable estoppel by clear, precise and unequivocal evidence.” See Appellant’s Brief at page 3. We find he did so.

Equitable estoppel, as correctly observed by the court below, is a doctrine that prevents one from doing an act differently from the manner in which another was induced by word or deed to expect. See Zvonik v. Zvonik, supra; Council of Plymouth Township v. Montgomery County, 109 Pa.Cmwlth. 616, 531 A.2d 1158 (1987). Its essential elements are inducement and justifiable reliance on that inducement exhibited by a change in condition (to one’s detriment). Cosner v. United Penn Bank, 358 Pa.Super. 484, 517 A.2d 1337 (1986). One who asserts equitable estoppel must prove the elements by clear, precise and unequivocal evidence. Blofsen v. Cutaiar, 460 Pa. 411, 333 A.2d 841 (1975).

Our review of the three-day hearing transcript is supportive of the lower court’s determination, on pure credibility grounds (which is not reversible on appeal unless not buttressed by the record) that the appellee was induced to renew his lease with Enal by Greenblatt’s remarks: "... we have no intention of opening a pharmacy”. As written by the court below on this point:

I found as a fact Mr. Zukin credible and Mr. Greenblatt not credible when he denied making such a statement [ — “we have no intention of opening a pharmacy” — ]. The qualifying statement “not at this time” apparently first was uttered in 1986, several years after plaintiff relied on defendant’s unqualified statement and signed his lease renewal. Mr. Zukin testified regarding Mr. Greenblatt’s statements in 1986 when, during a meeting, Mr. Greenblatt was questioned by plaintiff’s attorney about discussions in 1983. Mr. Zukin testified that in 1986, by stating that he said in 1983 that the defendant had no intention of opening a pharmacy and added that he also said “not at this time.” The statements of Mr. Greenblatt in 1986 in no way establish that the plaintiff did not prove the elements of equitable estoppel based on the statements of 1983. Plaintiff proved that in 1983 Mr. Greenblatt represented to Mr. Zukin that defendant had no intention of opening a pharmacy and, in reliance on this unqualified statement, plaintiff renewed its lease for an additional ten years. The elements of the doctrine were proved by clear and unequivocal evidence and any statements made three years after Mr. Zukin’s justifiable reliance simply will not afford defendant the relief it requests.

(Chancellor’s Opinion at pages 4-5) We see no reason to disturb the court’s order enjoining the appellant from opening a pharmacy in property adjacent to its supermarket in competition with the appellee during the lease’s ten-year term and executed by the appellee with Enal on the strength of the remarks of appellant’s representative that a competing pharmacy in the shopping center housing the two litigants would not be opened.

Order affirmed.

      . Act of March 21, 1772, 1 Sm.L. 389, § 1, 33 P.S. § 1.

      . Haines was cited with approval by the Supreme Court of Pennsylvania in Petty v. Tanglwood, 514 Pa. 51, 58 n. 10, 522 A.2d 1053, 1056 n. 10 (1987) for permitting an injunction to be issued to prohibit construction of additional townhouses in violation of a promise not to do so.


author: OLSZEWSKI, Judge:

text:
    571 A.2d 1046
    Charlotte M. LIPSCHUTZ and Robin Lipschutz and Jill Lipschutz, Appellees, v. Steven LIPSCHUTZ, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 6, 1989.
    Filed Jan. 19, 1990.
    Reargument Denied March 29, 1990.

      Wendy Glazer, Philadelphia, for appellant.
    Steven N. Yermish, Philadelphia, for appellees.
    Before McEWEN, OLSZEWSKI and TAMILIA, JJ.
   OLSZEWSKI, Judge:

This is an appeal from the judgment entered by the Court of Common Pleas of Philadelphia County directing specific performance of a separation agreement in favor of appellees and against appellant. On appeal, appellant raises the following issues:

(1) Are [appellees’] claims barred by the doctrines of estoppel, laches, waiver, modification, and the applicable statute of limitations?
(2) Does [appellees’] complaint fail to set forth a valid cause of action in that the agreement is not subject to specific performance and a judgment could not be entered pursuant to said agreement?
(3) Can the agreement be modified pursuant to the amendments of the Divorce Code?
(4) Are appellees entitled to payment of college tuition and related expenses if they did not comply with conditions precedent in the agreement and did not meet their burden of proof regarding same?
(5) Are appellees entitled to specific performance of the provisions of the agreement regarding expenses of camp, medical insurance, life insurance, college fees, or psychological expenses, or a judgment for past expenses for same?
(6) Should the action have been dismissed since [appellant’s] preliminary objections were sustained?

Brief of appellant at 3. For the following reasons, we affirm.

This case arose as an action in equity in which appellees, Charlotte M. Lipschutz and her daughters, Robin and Jill, sought specific performance of a property settlement agreement entered into between Charlotte and appellant, Steven Lipschutz. Charlotte and Stephen Lipschutz were married in May of 1964. Robin and Jill were the only children bom of the marriage; Robin on February 19, 1968, and Jill on December 17, 1969. In early December of 1975, Charlotte and Steven separated; and on December 9, both parties executed a property settlement agreement. This agreement, twenty-five pages in length, required appellant to provide inter alia, child support amounting to $250.00 per week, health and life insurance coverage, summer camp tuition, college tuition, and room and board while the children were at school. On December 26, 1975, Charlotte and Steven were divorced pursuant to a decree entered by the Court of Common Pleas of Montgomery County. The terms of the property settlement agreement were not incorporated into, this decree.

On May 26, 1982, pursuant to a petition for support filed by appellee Charlotte Lipschutz, the Honorable Gregory Lagakos of the Court of Common Pleas of Philadelphia County entered an order of support requiring appellant to make payments of $100.00 per week under the jurisdiction of the Family Court of Philadelphia County. Ms. Lipschutz requested such an order due to infrequent child support payments by appellant. Both sides agree that appellant has made payments under this order on a regular basis.

On May 9, 1985, appellee Charlotte Lipschutz along with her daughters, Robin and Jill, filed the instant action in equity in the Court of Common Pleas of Montgomery County seeking specific performance of the property settlement agreement. The complaint sought money damages for past due support, college tuition and specific performance of that portion of the agreement relating to the payment of future college tuition and related expenses. The complaint also sought past due sums for summer camp tuition and extraordinary medical and dental expenses. Appellant filed preliminary objections to the complaint, which included an objection to venue and a count for a demurrer. On October 23, 1986, the Honorable Lawrence A. Brown sustained the objection as to venue and transferred the case to the Court of Common Pleas of Philadelphia County. Thereafter, appellant filed an answer and new matter to the complaint, raising the affirmative defenses of laches, estoppel, and the applicable statute of limitations.

Trial of this matter commenced on February 2, 1988, before the Honorable Charles Wright and lasted until February 3. By order dated April 13, 1988, the court awarded appellees specific performance of the agreement and judgment in their favor against appellant in the amount of $49,600.53 for past due sums and expenses. Appellant filed timely post-trial motions which were denied by the court on January 4, 1989. After the order of April 13, 1988 was reduced to judgment, appellant filed the instant appeal.

We first discuss appellant’s contention that the property settlement agreement entered into by the parties is not subject to specific performance nor is reducible to judgment. Appellant submits that the agreement in the case at bar was merged into the support order of May 26, 1982. We disagree.

A property settlement agreement containing support provisions is enforceable by utilizing the same rules of law used in determining the validity of contracts if: it is a detailed agreement covering all aspects of the economic relationship of the parties; it is not one-sided; both spouses are adequately counseled; the amount of support is not inadequate; and the agreement does not merge into a divorce decree or a court order. Brown v. Hall, 495 Pa. 635, 435 A.2d 859 (1981); Sonder v. Sonder, 378 Pa.Super. 474, 549 A.2d 155 (1988) (en banc); McGough v. McGough, 361 Pa.Super. 391, 522 A.2d 638 (1987); Wertz v. Anderson, 352 Pa.Super. 572, 508 A.2d 1218 (1986); Millstein v. Millstein, 311 Pa.Super. 495, 457 A.2d 1291 (1983). Instantly, neither party is attacking the validity of the agreement at the time it was entered. In addition, both parties acknowledge that the agreement was not incorporated or merged into the divorce decree. Thus, our only inquiry is whether the child support provisions of the agreement merged with the support order of May 26, 1982.

Whether merger occurs depends upon the intentions of the parties, which are generally determined by examining the terms of the settlement agreement. Madnick v. Madnick, 339 Pa.Super. 130, 488 A.2d 344 (1985); Millstein v. Millstein, supra. This determination is one for the trier of fact. Wertz v. Anderson, supra. Here, the agreement expressly provides:

This Agreement shall remain in full force and effect unless and until it is terminated either by mutual written consent of both parties, or to the extent it is appropriately terminated by the death of either party under the terms of this Agreement. The failure of either party to insist upon strict performance of any of the provisions of this Agreement shall not be construed as a waiver of any subsequent default of the same or similar nature. In the event that the marriage of the parties hereto is terminated by divorce, this Agreement shall nevertheless remain in full force and effect, and shall survive such decree and shall not in any way be affected thereby, except as provided for herein.

Reproduced record at 266a-267a.

In the case at bar, the trial court found that the settlement agreement survived the order of support dated May 26, 1982. We agree. In so doing, we find nothing in that order which would indicate the termination of the support provisions of the property settlement agreement. Nor do we find any writing properly of this record to this effect. Under these circumstances, it is clear that the provisions with regard to termination of the property settlement agreement have not been met.

Nevertheless, appellant contends that the intentions of the parties to merge the property settlement agreement into the support order of 1982 was clearly expressed by Charlotte Lipschutz’s filing of the support complaint; by her failure to take exception to any provisions of said order; and by her acceptance of Mr. Lipschutz’s payments. We disagree.

In Dechter v. Kaskey, 379 Pa.Super. 45, 49, 549 A.2d 588, 590 (1988) (en banc), considered at the same time and in conjunction with Sonder v. Sonder, supra, this Court had occasion to discuss the effect of a support order on a property settlement agreement. We stated:

Pursuant to Sonder, we held both agreements and support Orders under certain circumstances could be given independent effect. Obviously, double recovery cannot be allowed on both the agreement and the support Order. To the extent the agreement is not completely satisfied by giving credit for the amount paid pursuant to the support Order, a debt is accumulated which may be recovered in an action of assumpsit or in equity. However, as we stated in Sonder, the enforcement remedies are not those pursuant to the support laws, therefore, attachment of the person and wage attachment are not permissible. In this respect, by retaining the validity of the agreement, we do not offend Millstein v. Millstein, 311 Pa.Super. 495, 457 A.2d 1291 (1983) (an agreement for child support may not be reduced by the court, although an Order to increase support is permissible when circumstances warrant) and Brown v. Hall, 495 Pa.Super. 635, 435 A.2d 859 (1981) (unless an agreement is merged into the divorce decree, it may not be modified by the court). Utilizing the above language, a panel of this Court in

Knorr v. Knorr, 380 Pa.Super. 11, 550 A.2d 1338 (1988), held that court can modify its order of support entered after the execution of a property settlement agreement. In that case, we were presented with a set of factual circumstances almost identical to the case sub judice. In Knorr, the parties entered into a property settlement agreement prior to the entry of their divorce decree. The agreement contained language providing that it would be incorporated into the decree but was not to merge with it. A short time after entry of the decree, the wife filed a complaint for support. As a result, a court order was entered by consent of the parties providing that the husband pay support for his children in an amount equal to that contained in the property settlement agreement. Later, a petition to increase the order was filed by the wife which was countered by husband’s cross-petition to reduce. Upon motion of the wife, the trial court summarily dismissed husband’s petition on the grounds that the support order was not subject to reduction below the amount set by the parties’ agreement. Husband appealed.

In reversing the trial court’s summary disposition of husband’s petition, we held that husband was entitled to have his petition to reduce support considered on the merits. In so doing, we examined the interrelation of property settlement agreements and support orders utilizing the reasoning of Sonder and Dechter. Implicit in this decision, we found that the subsequent court order did not supercede the property settlement agreement; rather, both were intact and enforceable in their own ways. Instantly, as in Dechter and Knorr, the fact that Charlotte Lipschutz sought other means by which to enforce Steven Lipschutz’s support obligations does not mean, absent express confirmation otherwise, that the provisions of the property settlement agreement have merged into the support order. Because such confirmation was lacking in this case, we agree with the trial court that appellees had the right to seek specific performance of the property settlement agreement for the amounts requested.

Next, appellant contends that even if appellees could properly rely on the property settlement agreement in the instant action, the complaint must fail based upon the affirmative defenses of laches, the applicable statute of limitations, estoppel, waiver and modification. Appellant argues that the bringing of the instant action ten years after the date of the agreement, coupled with the intervening support order of May 26, 1982, precludes the relief requested by appellee. We disagree.

It is well-settled in this jurisdiction that the doctrine of laches is inapplicable in an action to enforce a continuing contractual obligation. Kay v. Kay, 460 Pa. 680, 334 A.2d 585 (1975). Moreover, the burden of proof with respect to the doctrine is upon the party asserting the defense; in order to meet this burden, the party alleging the delay must demonstrate prejudice. Id. Here, the court found that the property settlement agreement amounted to a continuing contractual obligation on the part of appellant, thus precluding the defense of laches. In addition, the court stated that appellant offered no evidence to establish that he was prejudiced by any delay in the filing of this action. As the record reflects this to be the case, we are in agreement with the trial court’s assessment of this defense.

Turning to the statute of limitations, it is axiomatic that, for an action in equity, the applicable statute of limitations is used only as a frame of reference to evaluate any purported delay in support of a claim of laches. Kay, supra. Here, save for expenses for summer camp tuition, appellees expressly waived any claim to support prior to the May 26, 1982 support order. Thus, applying the applicable statute of limitations for an alleged breach of contract, four years, the instant action was not untimely as of its filing date on May 9, 1985. While the summer camp expense was incurred more than four years prior to the filing of the instant action, inasmuch as it amounts to only a fraction of the claim, we find no error to the court’s award. Accordingly, we are in agreement with the trial court that no inexcusable delay was present in the filing of the instant action.

Next, appellant maintains that appellees should be equitably and judicially estopped from denying that the support order of May 26,1982 represents the sole obligation due them from appellant. This argument lacks merit. Under the doctrine of equitable estoppel, the proponent of such a defense must prove by clear, precise and unequivocal evidence an inducement and justifiable reliance exhibited by a change in condition that causes a disadvantage to the one induced. See Cosner v. United Penn Bank, 358 Pa.Super. 484, 517 A.2d 1337 (1986). Turning to the record, we find nothing but an unsupported assertion that appellant relied on a prior support order in his budget planning. The trial court found this assertion inadequate to meet the threshold of the defense and our review of the record supports this conclusion.

Similarly, appellant’s defense of judicial estoppel must fail. Judicial estoppel provides that a party to an action will be estopped from asserting a position inconsistent with his/her assertion or claim in a previous action, particularly if his/her contentions were successfully maintained. Associated Hospital Service of Philadelphia v. Pustilnik, 497 Pa. 221, 439 A.2d 1149 (1981). Here, appellant maintains that since appellee Charlotte Lipschutz was successful in her 1982 petition which resulted in a $100.00 per week award, she is judicially estopped from seeking support in a different amount. We must disagree. The amount awarded in the 1982 support was two and one-half times lower than what appellant was already obligated to pay under the property settlement agreement, assuming, as appellant does, that the order terminated the agreement. How appellant can now argue that appellee was “successful” under those circumstances is beyond the comprehension of this Court. Thus, we reject this argument.

Appellant next asserts that Charlotte Lipschutz, by filing a petition for support despite the existence of the property settlement agreement, has waived the support provisions of the agreement. In support of his argument, appellant points to various case law which would establish that provisions of property settlement agreements, like provisions in other contracts, may be waived either expressly or by implication. One of the cases relied on by appellant is Trumpp v. Trumpp, 351 Pa.Super. 205, 505 A.2d 601 (1985).

In Trumpp, a panel of this Court was faced with an issue almost identical to the one raised herein. There, the parties had entered into a property settlement agreement containing provisions for the support of the wife and her two children. One year later, due to the husband’s lack of support payments, the wife filed a petition for support. An order was entered directing the husband to pay an amount for support that was higher than that called for in the agreement. Husband filed a petition to modify the order and was successful. Thereafter, the wife filed a petition for modification and husband cross-filed. During the hearing on the petitions, the wife asserted the applicability of the property settlement agreement. In rejecting the wife’s petition, the trial court entered an order favorable to the husband. The court reasoned that the wife’s conduct, in failing to assert the enforceability of the contract in the past, indicated an intention on her part to relinquish her rights pursuant to the agreement.

In reversing the trial court’s order, we held that the actions of the wife in failing to raise the applicability of the property settlement agreement prior to the filing of her second petition for support could not be construed as a waiver where the terms of the agreement clearly evidenced an intent to enter into binding contractual obligations alterable only by a signed writing to the contrary. As no subsequent written agreement was signed by the parties amending or modifying the separation agreement, there was no waiver.

We are persuaded by the reasoning in Trumpp and find it applicable to the facts of the instant case. Here, as in Trumpp, appellee initially filed a petition for support rather than rely on the provisions of the property settlement agreement. In addition, the agreement in the instant case is clear in terms of an intent to enter into contractual obligations and specifically provides for written confirmation, signed by both parties, in order to terminate the contract. As no evidence of a writing was received by the trial court expressing an intention to terminate the support provisions of the agreement, there is no waiver. Accordingly, appellant’s argument to the contrary is rejected.

Appellant’s final affirmative defense is that of modification. In this regard, appellant advances his argument on two fronts. First, appellant argues that modification occurred when he and Charlotte Lipschutz signed a stipulation which was filed in Montgomery County Court. As we have already discussed, this document was never introduced at trial, therefore, it has not been made a part of the record. In any event, this claim is meritless. Appellant’s claim that this stipulation effected a modification of the agreement is based upon the case of Commonwealth ex rel. Fleming v. Fleming, 288 Pa.Super. 504, 432 A.2d 626 (1981). Fleming, however, is distinguishable from the case at bar for the order entered in that case described itself as a temporary amendment of the agreement, and thus recognized that certain obligations of a property settlement were specifically amended by the court with express consent of the parties. This is not the case here. Therefore, for either reason, this first approach is rejected.

Appellant then argues that a recent amendment to the Divorce Code of 1980, 23 P.S. § 401(d), which took effect February 12, 1988, is to be applied retroactively to this case as it was pending at the time the change occurred. He asserts that under the new amendment, a provision of a property settlement agreement regarding child support shall be subject to modification upon a showing of a change of circumstances. He claims that by petitioning the court for an order of support back in 1982, Charlotte Lipschutz sought a modification of the property settlement agreement. We have disposed of this argument above, and need not entertain it again. In addition, the case sub judice, though indeed pending at the time of the effective date of amended § 401(d), sought specific performance of the agreement, not a modification of the terms. While Ms. Lipschutz did in fact file a petition for support, the order resulting from that petition was entered in 1982 and no appeal was taken by either party. For purposes of appeal then, the support order was final six years prior to the date of the amendment to § 401(d) took effect. Accordingly, § 401(d) has no applicability here.

Next, appellant contends that appellees were not entitled to college tuition, fees and related expenses, camp expenses, medical and life insurance, and psychological expenses as they did not comply with conditions precedent in the agreement and did not meet their burdens of proof with regard to the same. We have reviewed the agreement and the record, and need not belabor these contentions except to say that ample evidence was entered by appellees to establish their satisfaction of all conditions precedent and burdens of proof with regard to the requested relief. As credibility of this evidence is better left to the finder of fact, in this instance the trial judge, we will not disturb the awards. We therefore reject these claims.

Finally, appellant submits that his preliminary objections to appellees’ complaint had been sustained by the trial court by order dated October 23, 1986, resulting in the dismissal of this case. This argument is belied by the record and the further proceedings involved in this matter. The order dated October 23, 1986, sustained only the objection as to venue, and not the requested demurrer. If such were not the case, there would be no reason for the Court of Common Pleas of Montgomery County to transfer this action to Philadelphia County as there would be no “case” to transfer. The trial court herein properly recognized this fact and disposed of this argument pre-trial. We find no error in so doing.

Judgment affirmed.

      . The order provided as follows:
      1. The Property Settlement Agreement entered into by Plaintiff Charlotte Lipschutz and Defendant Steven M. Lipschutz on December 9, 1975 is a valid and enforceable Agreement.
      2. Defendant Steven M. Lipschutz shall perform all of his obligations pursuant to the aforesaid Property Settlement Agreement prospectively, specifically to wit:
      (a) Defendant shall provide unencumbered life insurance in an amount no less than $75,000 for the benefit of his daughters, Robin and Jill Lipschutz and shall provide proof of payment of premiums thereon to Plaintiff Charlotte Lipschutz.
      (b) Defendant shall pay support for his daughters Robin and Jill Lipschutz, to Plaintiff Charlotte Lipschutz, in the amount of $125.00 per week ($62.50 per child) until Robin Lipschutz graduates from Emory University (or is otherwise emancipated pursuant to the Agreement), and $62.50 per week thereafter until Jill Lipschutz graduates from the University of Colorado (or is otherwise emancipated pursuant to the Agreement);
      (c) Defendant shall provide Plaintiffs Robin and Jill Lipschutz with health insurance coverage under Blue Cross/Blue Shield Major Medical, and shall further provide proof of premium payments thereon to Plaintiff Charlotte Lipschutz;
      (d) Defendant shall pay all extraordinary medical and dental expenses incurred by Robin and Jill Lipschutz not covered under the aforesaid Blue Cross/Blue Shield, Major Medical health insurance coverage, immediately upon receipt of bills;
      (e) Defendant shall pay for all college tuition, room and board, books, supplies and fees for Plaintiffs Robin and Jill Lipschutz immediately upon receipt of bills.
      3. Defendant Steven Lipschutz shall pay to Plaintiff Charlotte Lipschutz the sum of $49,600.53, which sum represents the following:
      (a) Past due child support arrearages from May 26, 1982 owing under the Property Settlement Agreement, minus support payments made by the Defendant in the amount of $100.00 per week, said total sum being $38,175.00;
      (b) Summer camp tuitions for Jill and Robin Lipschutz, said sum being $5,400.00;
      (c) An extraordinary medical expense paid by Plaintiff Charlotte Lipschutz for Plaintiff Jill Lipschutz to 191 Laboratories, said sum being $102.40;
      (d) An extraordinary dental expense paid by Plaintiff Charlotte Lipschutz for Plaintiff Jill Lipschutz to Dr. Sidney Wagman, said sum being $100.00;
      (e) Costs of psychological counseling for Jill and Robin Lipschutz paid by Plaintiff Charlotte Lipschutz to Merrily Karpel, Ph.D., said sum being $1,152.00;
      (f) College tuition and fees for Robin Lipschutz for Fall Semester 1986, said sum being $4,206.05;
      (g) Payments for college books for Jill Lipschutz, said sum being $126.08;
      (h) Financial aid application fees for both Robin and Jill Lipschutz, said sum being $45.50;
      (i) Pre-cpllege scholastic aptitude testing fees for both Robin and Jill Lipschutz, said sum being $148.50;
      (j) College application fees for both Robin and Jill Lipschutz, said sum being $145.00.
      4. Defendant Steven Lipschutz shall pay-the outstanding dental bill of $164.00 to Howard Rosenberg, D.D.S., for extraordinary dental expense incurred for treatment upon Jill Lipschutz.
      Reproduced record at 226a-228a.

        . Appellant points to a stipulation between the parties allegedly entered into subsequent to the support order in which he claims the necessary writing was established to terminate the agreement. This writing was never entered into evidence at trial; thus, we do not consider it. Moreover, even had the document been properly made a part of this record, nothing in the stipulation expressly indicates a termination of the agreement, nor a merger into the support order. Therefore, in any event, this stipulation is of no moment.

      . See also Trumpp v. Trumpp, 351 Pa.Super. 205, 505 A.2d 601 (1985) (actions of wife in filing two petitions for support without asserting the applicability of a valid property settlement agreement could not be construed as a waiver of her rights under agreement absent express written confirmation otherwise).


author: KELLY, Judge:

text:
    571 A.2d 1053
    Robert J. TRIFFIN, t/a General Funding, Appellee, v. INTERSTATE FUNDING CO., INC. and Girard Bank. Appeal of GIRARD BANK, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 20, 1989.
    Filed Jan. 22, 1990.
    Reargument Denied April 3, 1990.

      Kenneth C. Frazier, Philadelphia, for appellant.
    Robert J. Triffin, appellee, in pro per.
    Before TAMILIA, KELLY and CERCONE, JJ.
   KELLY, Judge:

This is an appeal from an order denying a petition to open judgment. We remand for further proceedings in the trial court.

On October 19, 1988, an order was entered which denied the petition of Girard Bank (rechartered as Mellon Bank (East) N.A. “Mellon”) to open judgment. This timely appeal was taken from that order.

After thirty days had passed, and without an order vacating the October 19, 1988 order being granted to permit reconsideration, jurisdiction over this issue passed from the trial court and was lodged in this Court. See Sidkoff, Pincus, Greenberg & Green, P.C. v. Pennsylvania Nation al Mutual Casualty Insurance Company, 521 Pa. 462, 555 A.2d 1284 (1989); Luckenbaugh v. Shearer, 362 Pa.Super. 9, 523 A.2d 399 (1987) (en banc); see also Pa.R.A.P. 903 and 1701.

Nonetheless, on June 13, 1989, an order was entered by the trial court which purported to strike the judgment against Mellon, and which directed that the case be listed for trial. Appellee, Robert J. Triffin, t/a General Funding (“Triffin”), filed timely notice of appeal from that “order.” However, that appeal was withdrawn in August, 1989.

Under the relevant rules of procedure, the June 13, 1989 order was a nullity. The trial court was without jurisdiction to reconsider its October 19, 1988 order at that late date, while the appeal of that order was pending in this Court. See Sidkoff, Pincus, Greenberg & Green, P.C. v. Pennsylvania National Mutual Casualty Insurance Company, supra; Luckenbaugh v. Shearer, supra.

Though we can give no effect to the June 13, 1989 order, we deem it appropriate to remand this case to the trial court for reconsideration of the October 19, 1988 order, in light of the trial court’s apparent change of position on the motion. Cf. MNC Corp. v. Mt. Lebanon Medical Center, Inc., 294 Pa.Super. 405, 440 A.2d 528 (1982); accord Commonwealth v. McMillan, 376 Pa.Super. 25, 35 n. 3, 545 A.2d 301, 306 n. 3 (1988); Commonwealth v. Gore, 327 Pa.Super. 294, 475 A.2d 804 (1984). In MNC Corp. v. Mt. Lebanon Medical Center, Inc., supra, the trial court, recognizing that jurisdiction over its order denying a petition to open judgment has passed to this Court, confessed error in its Pa.R.A.P.1925 opinion. We exercised our discretion and remanded to permit reconsideration.

The situation here is similar but concedely more complicated and less clear. In this case, a judge of the same court has entered an invalid order which purported to strike judgment and list the case for trial, despite the prior order of a different judge of the same court denying the motion to strike judgment. The original order denying the motion to strike is supported by an opinion which concluded that a “fatal defect in the record” warranting the striking of the judgment was not established. No opinion in support of the invalid June 13, 1989 order is included in the record here on appeal. The situation here is plainly more complicated and less clear than the trial court’s simple confession of error in MNC Corp.; however, we nonetheless conclude that the apparent conflict in the trial court as to the proper disposition of the motion to strike judgment should be considered and resolved in the trial court prior to consideration of the issue by this Court. We note that it is for the trial court, initially, to resolve any “law of the case” implications of its reconsideration of the October 19, 1988 order. Cf. Salerno v. Philadelphia Newspapers, Inc., 377 Pa.Super. 72, 546 A.2d 1168 (1988).

Case remanded to permit reconsideration of the October 19, 1988 order. The June 13, 1989 order shall be deemed a nullity.

Jurisdiction is relinquished. .

      . Two other appeals were filed by Triffin from orders entered June 13, 1989 which were subsequently withdrawn in August of 1989. See Order entered June 13, 1989 denying Triffin’s petition for reconsideration to stay execution as moot; appeal filed June 23, 1989; and Order entered June 13, 1989 placing Triffin’s petition for establishment of a constructive trust on trial list; appeal filed June 23, 1989.

      . This is true even though the trial court retained jurisdiction to proceed as to all matters other than the interlocutory order appealed. See Pa.R.A.P. 1701(b).