author: TAMILIA, Judge:

text:
    649 A.2d 709
    VICKI N. v. JOSEPHINE N., Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 28, 1994.
    Filed Nov. 10, 1994.

      Beryl H. Benson, Philadelphia, for appellant.
    Nina W.C. Paskin, Philadelphia, for appellee.
    Before McEWEN, TAMILIA and FORD ELLIOTT, JJ.
   TAMILIA, Judge:

Josephine N., mother, appeals from the March 1, 1993 Order awarding primary custody of child, J.L., born August 26, 1989, to maternal aunt/appellee, Vicki N., and partial custody to mother every other weekend from Saturday morning to Sunday night.

The cases are legion in this Commonwealth that the paramount concern in issues of child custody is the best interest of the child, based on all factors which legitimately have an effect on the child’s physical, intellectual, moral and spiritual well-being. McMillen v. McMillen, 529 Pa. 198, 602 A.2d 845 (1992) ; Sawko v. Sawko, 425 Pa.Super. 450, 625 A.2d 692 (1993) .

On appeal, our scope of review is broad in that we are not bound by deductions and inferences drawn by the trial court from the facts found, nor are we required to accept findings which are wholly without support in the record. On the other hand, our broad scope of review does not authorize us to nullify the factfinding function of the trial court in order to substitute our judgment for that of the trial court. Rather, we are bound by findings supported in the record, and may reject conclusions drawn by the trial court only if they involve an error of law, or are unreasonable in light of the sustainable findings of the trial court. See Karis v. Karis, 518 Pa. 601, 608, 544 A.2d 1328, 1332 (1988); Lombardo v. Lombardo, 515 Pa. 139, 147-48, 527 A.2d 525, 529 (1987); Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 236-37, 478 A.2d 800, 805-06 (1984). Zummo v. Zummo, 394 Pa.Super. 30, 54, 574 A.2d 1130, 1142 (1990).

In determining the appropriate standard for adjudication of custody disputes between a parent or parents and a third party, our Supreme Court adopted the carefully fashioned principles set forth by this Court in In re Custody of Hernandez, 249 Pa.Super. 274, 376 A.2d 648 (1977). Ellerbe v. Hooks, 490 Pa. 363, 416 A.2d 512 (1980).

In such cases,

The parties do not start out even; the parents have a ‘prima facie right to custody,’ which will be forfeited only if ‘convincing reasons’ appear that the child’s best interest will be served by an award to the third party. Thus, even before the proceedings start, the evidentiary scale is tipped, and tipped hard, to the parents’ side. What the judge must do, therefore, is first, hear all evidence relevant to the child’s best interest, and then, decide whether the evidence on behalf of the third party is weighty enough to bring the scale up to even, and down on the third party’s side. [Hernandez] at 286, 376 A.2d at 654 (footnote omitted).
We agree that this approach is appropriate. Clearly these principles do not preclude an award of custody to the non-parent. Rather they simply instruct the hearing judge that the non-parent bears the burden of production and the burden of persuasion and that the non-parent’s burden is heavy.

Id. at 367-68, 416 A.2d at 514. The Supreme Court soon thereafter reiterated the standard in such cases was

not to be construed as precluding a custody award to a non-parent, absent a demonstration of the parent’s dereliction. We again emphasize that the standard seeks only to stress the importance of parenthood as a factor in determining the best interests of the child. However, other factors which have significant impact on the well-being of the child can justify a finding in favor of the non-parent, even though the parent has not been shown to have been unfit.

Albright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 328, 421 A.2d 157, 161 (1980).

Finally, this Court spoke again, enumerating the considerations which weigh against the elevation of parenthood above all other factors in custody determinations.

First, although parenthood is a highly important factor, it should not be accorded determinative weight in our decision. Other factors, like the value of stability, are also to be accorded great weight. Indeed, in EUerbe itself the Supreme Court affirmed the trial court’s grant of custody to grandparents over a parent of the subject child for the very reason that the child had developed a stable relationship with the grandparents and had a stable environment with them. The same basic situation was presented in Albright, and once again the grandparents were given custody. Second, the Hernandez standard is first and foremost an allocation of the burden of proof to the third parties, but it does not impose on them the burden of showing that the parent is unfit. Thus, the issue centers on the child, and not on the parent.

Snarski v. Krincek, 372 Pa.Super. 58, 77, 538 A.2d 1348, 1358 (1988).

Mother initially argues the trial court lacked subject matter jurisdiction to decide this matter, as aunt, a third-party under existing custody law, did not have in loco parentis status. At the August 30, 1989 hearing on a petition for special relief, which mother claims was an ex parte proceeding, mother argues aunt failed to meet the burden of showing, first, by clear and convincing evidence, the child was dependent under the Juvenile Act, 42 Pa.C.S. § 6341(c), and secondly, that aunt did not meet the burden of showing removal from mother was clearly necessary. Id., § 6351(b). Accordingly, she argues the trial court deprived her of a fundamental liberty interest in her child by granting aunt in loco parentis status in opposition and defiance of mother’s wishes.

A review of the record reveals mother, on appeal, raises for the first time the trial court’s subject matter jurisdiction and aunt’s standing in loco parentis. Although this may be viewed as a waiver of the issue, see Pa.R.C.P. § 227.1(b) Reilly by Reilly v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204, 489 A.2d 1291 (1985), we shall conduct an independent review of the record to determine whether the trial court erred in granting aunt in loco parentis status.

According to the record, in June, 1989, mother learned for the first time she had breast cancer and she was five months’ pregnant. Mother sought treatment for her cancer in July, 1989, but was advised to avoid any chemotherapy or other treatment until after the birth. J.L. was born on August 26, 1989, however, mother, concerned about her cancer, expressed no interest in the child and intended to place her in the care of maternal grandmother or in foster care. Mother subsequently abandoned the child at the hospital, stating grandmother and/or aunt could care for her. On August 30, 1989, pursuant to an emergency petition by aunt, the trial court ordered that child remain at the hospital pending further court order. On September 1, 1989, the court awarded temporary custody to aunt and later granted mother visitation pursuant to a December 20, 1989 Order.

The trial court based its decision on the fact it was clear the infant essentially was abandoned at the hospital by her mother for placement in foster care or for adoption. Mother, who was put on notice of aunt’s petitions, chose not to appear in court or otherwise contest the petitions until March 23, 1990, when she filed a petition to modify custody. As previously mentioned, at no time did mother contest aunt’s status in loco parentis. Accordingly, the trial court determined aunt supplied sufficient proof at the time of the initial hearing of her desire and intent to put herself in the position of assuming the obligation of parenting J.L. at a time when the child was in need, mother was not prepared, father was unwilling and neither had any intention of taking J.L. home.

Moreover, aunt did not need to file a dependency action once she established herself as one in loco parentis with the child. Rosado v. Diaz, 425 Pa.Super. 155, 161, 624 A.2d 193, 196 (1993). Mother was in no way deprived of a determination by the court of the necessity of forfeiting her rights. Rather, mother voluntarily forfeited her rights by abandoning J.L. at birth with no intent to assume parental obligations. The evidence was clear and convincing J.L. was not receiving any parental care when aunt acquired in loco parentis status. Mother’s challenge came well after J.L. had been placed in the temporary custody of aunt, who had a prima facie right to custody by virtue of her status in loco parentis.

Mother next argues the trial court erred in its failure to consider her prima facie right to custody, and its determination was not supported by competent evidence to overcome this right to custody. This prima facie right to custody may be forfeited, however, if there are convincing reasons the child’s best interests will be served by living with a third party. In re Custody of Hernandez, supra. The trial court based its decision on several factors, the totality of which supports its determination that it is in the best interests of J.L. to grant primary custody to aunt with support from grandmother.

The first most pertinent factor is mother’s declining health. The trial court, reviewing the medical records and related testimony, relied upon the October 5, 1992 bone scan study which found progression of metastatic disease in the bones since April 9, 1992, particularly with the numerous foci in the spine and the focus in the skull. The court also accepted the findings of Dr. Kevin R. Fox, whose report the parties admitted into record by agreement, which determined mother had stage IV disease, based on bone metastases and thus had a 100 per cent chance of dying within four years. When J.L. was born, mother admitted neither wanting to or being able to care for her while undergoing cancer treatment. She only decided she wanted custody after she had been through early treatments and believed she was cured. However, based on the evidence presented, mother again must deal with chemotherapy treatments. Past conduct is not relevant unless it will produce an ongoing negative effect on J.L.’s welfare. Commonwealth ex rel. Gorto v. Gorto, 298 Pa.Super. 509, 444 A.2d 1299 (1982). If granted custody, mother might again find the need to give J.L. up for foster care or adoption when the time comes to undergo additional treatment. Mother has testified that her priority is not J.L., thus the trial court properly found her condition likely will produce a negative effect on the child’s welfare. Based on her past behavior, the court also considered mother’s emotional capacity to cope with her future medical treatments as well as her physical inability to care for J.L., which, when taken together, provide convincing reasons that custody should be with aunt.

The court also considered evidence of problems with alcohol abuse which effects a parent’s ability to care for a child. See Barron v. Barron, 406 Pa.Super. 401, 594 A.2d 682 (1991). The court found mother has a drinking problem, relying on her own testimony she “probably” is an alcoholic, which may have an adverse effect on J.L. Moreover, mother and father testified about violent physical confrontations which occurred when they drank too much. This evidence coupled with mother’s medical problems supports the court’s decision to place J.L. in the custody of aunt, who has provided her with a safe, caring and stable home since birth.

Finally, the trial court considered that aunt can and will provide mother with constant access to her daughter. Aunt and grandmother, who live in Reading, Pennsylvania, have been cooperative with mother, and J.L. at least will have the benefit of some relationship with mother, which may not exist if she is placed for adoption or in a foster home. These factors, when cumulatively considered by the trial court, provide convincing reasons that it is in J.L.’s best interests that her custody should continue to be with aunt. Accordingly, we find no abuse of discretion in the trial court’s award of custody to maternal aunt.

Order affirmed.

McEWEN, J., concurs in the result.


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    649 A.2d 712
    Melissa Ellis HOLEWINSKI, Appellant, v. CHILDREN’S HOSPITAL OF PITTSBURGH.
    Superior Court of Pennsylvania.
    Argued Sept. 9, 1994.
    Filed Nov. 9, 1994.

      Raymond Radakovich, Pittsburgh, for appellant.
    Martha H. Munsch, Pittsburgh, for appellee.
    Before McEWEN, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from an order entered September 29,1993 granting appellee’s preliminary objections and dismissing appellant’s amended complaint with prejudice. Appellant, Melissa Ellis Holewinski, presents the following issues for our review:

I. Whether the court below erred when it determined as a matter of law that appellant had not set forth her claim for promissory estoppel as an exception to the at-will employment situation, despite the fact that appellant furnished additional consideration by working towards and obtaining advanced degrees for the purpose of enhancing her performance as administrative manager at Children’s Hospital of Pittsburgh.
II. Whether the court below erred when it determined as a matter of law that a significant public policy was not present to create an exception to the at-will employment situation, despite the fact that appellee fired appellant and deprived her of her constitutional right to free speech simply out of retaliation for appellant’s form of “whistle blowing,” when she voiced her concern over the hiring of Dr. Albright.
III. Whether the court below erred when it determined as a matter of law that an employment contract did not exist, despite the intent and conduct of appellant and appellee as exhibited through twelve years of service appellant, Melissa Ellis Holewinski, has given to appellee, Children’s Hospital of Pittsburgh.
IV. Whether the court below erred by dismissing appellant’s defamation claim as a matter of law, despite the fact that appellee’s agents, and servants made defamatory per se statements that harmed appellant’s reputation throughout her department.

Appellant’s Brief at v. For the following reasons, we affirm.

Appellant’s allegations, as set forth by the trial court are as follows:

[Appellant] was hired by [appellee] Children’s Hospital on June 2,1980. Over time, her position was upgraded several times. In 1991, the administration at Children’s Hospital proposed that one Dr. Leland Albright take over the position of chief of pediatric Neurosurgery. [Appellant] and two other employees had concerns about Dr. Albright’s abilities and voiced those concerns through the proper channels. In January of 1992, Dr. Albright was named Chief of Pediatric Neuro-surgery. He thereupon advised [appellant] that he planned to restructure her department, that he was going to place the job [appellant] held into a higher grade (thereby apparently increasing the required qualifications for filling the job), and that [appellant] had better look for another job. In April 1992, Dr. Albright notified [appellant] that the qualifications and responsibilities of her position were in fact being increased and that her final date of employment would be June 30, 1992. In the notification, Dr. Albright stated to [appellant]: “I thank you for the more than ten years of service you have provided to the Department of Neurosurgery.” [Appellant] thereupon “contacted the personnel department at Children’s Hospital, which confirmed [appellant’s] belief that she would be qualified for the administrative managerial position even as upgraded by Dr. Albright. In mid-May, 1992, Mary Burich was hired to fill [appellant’s] position to begin on July 1, 1993 [sic]. From mid-May to the end of June, 1992, Ms. Burich contacted [appellant] and members of [appellant’s] department “in a premature fashion which constituted harassment toward the [appellant] in that department operations were greatly hampered and/or disturbed.”

Trial Court Opinion, March 15, 1994 at 1-2 (citations to amended complaint omitted).

Appellant filed her first complaint on May 24, 1993 seeking monetary damages. On June 25, 1993 the trial court granted appellee’s preliminary objections, but . allowed appellant 30 days to file a more specific complaint. Appellant filed an amended complaint on July 26, 1993. Appellee responded with preliminary objections, which were granted by the trial court on September 29, 1993, thereby dismissing appellant’s amended complaint with prejudice. This timely appeal followed.

Appellant first contends the trial court improperly dismissed Count I of her amended complaint setting forth a claim for promissory estoppel. We disagree.

The doctrine of promissory estoppel is only employed to enforce a promise where there has been no consideration. Cardamone v. University of Pittsburgh, 253 Pa.Super. 65, 72 n. 4, 384 A.2d 1228, 1232 n. 4 (1978) (en banc) (citations omitted). This doctrine requires that:

(1) the promisor must make a promise that he should reasonably expect to induce action or forbearance on the part of the promisee; (2) the promise must actually induce such action or forbearance; and (3) injustice can be avoided only by enforcement of the promise.

Cardamone, 253 Pa.Super. at 74, 384 A.2d at 1233; DelConte v. Stefonick 268 Pa.Super. 572, 576, 408 A.2d 1151, 1115-16 (1979).

In the case sub judice, appellant’s complaint is bereft of any allegation of a promise or reliance thereupon. Therefore, it fails to set forth a claim for promissory estoppel. Banas v. Matthews Intern. Corp., 348 Pa.Super. 464, 487 n. 12, 502 A.2d 637, 648 n. 12 (1985) (en banc) (doctrine of promissory estoppel does not provide basis for relief when promise is absent).

Appellant next contends that the trial court erred in dismissing appellant’s wrongful discharge claim based upon her “retaliatory firing.” We disagree.

In Pennsylvania, as a general rule, no common law cause of action exists against an employer for termination of an at-will employment relationship. Krajsa v. Keypunch, Inc., 424 Pa.Super. 230, 237, 622 A.2d 355, 358 (1993) (“an at will employee may be terminated for good reason, bad reason, or no reason at all”). Moreover, “exceptions to this rule have been recognized in only the most limited of circumstances, where discharges of at-will employees would threaten clear mandates of public policy.” Id. at 237, 622 A.2d at 358 (citing Clay v. Advanced Computer Applications, Inc., 522 Pa. 86, 88, 559 A.2d 917, 918 (1989)). In fact, courts have only recognized the public policy exception on three occasions; all situations where the discharge resulted from plaintiffs compliance with a clear and applicable statute or constitution. Krajsa, 424 Pa.Super. at 239, 622 A.2d at 359 (citing Field v. Philadelphia Electric Co., 388 Pa.Super. 400, 565 A.2d 1170 (1989) (violation of public policy where discharge was based on performance of duty to report nuclear safety violations under federal statute); Hunter v. Port Authority, 277 Pa.Super. 4, 419 A.2d 631 (1980) (violation of Pennsylvania Constitution to deny public employment to person on basis of prior conviction for which he was pardoned); and Reuther v. Fowler & Williams, Inc., 255 Pa.Super. 28, 386 A.2d 119 (1978) (public policy violated where employer fires employee for serving on jury duty)).

In the instant case, the public policy at issue is the need to protect whistle-blowers. Although there is a whistle-blower law in Pennsylvania, 43 Pa.Stat.Ann. § 1421 (1986), it only applies to employees discharged from governmental entities, and therefore does not protect appellant. Furthermore, as we have already explained in Krajsa, 424 Pa.Super. at 238-9, 622 A.2d at 358, we are precluded from creating or forming public policy with respect to wrongful discharge. Therefore, as appellant’s claim is not based on an established public policy exception, this claim is meritless. Krajsa, 424 Pa.Super. 230, 622 A.2d 355 (no public policy exception to at-will employment recognized where employee is discharged for threatening to report unlawful business practices).

Appellant next alleges the trial court erred when it decided, as a matter of law, no employment contract existed between appellant and appellee. We disagree.

In the absence of an agreement for a fixed period of time, an employee is hired at-will. Muscarella v. Milton Shoe Manufacturing Co., 352 Pa.Super. 158, 162, 507 A.2d 430, 432 (1986), appeal denied, 514 Pa. 636, 522 A.2d 1105 (1987) (citing Richardson v. Charles Cole Memorial Hospital, 320 Pa.Super. 106, 466 A.2d 1084 (1983)). More fundamentally, for an implied contract to exist, both the employer and employee must intend that a contract exist, thereby changing the relationship from at-will employment into a contractual arrangement.

It is basic contract law that one cannot suppose, believe, suspect, imagine or hope that an offer has been made. An offer must be intentional, definite in its terms and communicated, otherwise the minds cannot meet---- An offer must define its terms, specify the thing offered and be an intention of the present or future to be bound.

Morosetti v. Louisiana Land and Exploration Co., 522 Pa. 492, 494-95, 564 A.2d 151, 152 (1989). Because appellant fails to adequately allege a basis for an implied contract, this claim is meritless.

Appellant’s final argument is that the trial court erred by dismissing appellant’s defamation claim. We disagree.

“A statement is defamatory if it tends to harm the reputation of another so as to lower him in the estimation of the community or deter third persons from associating or dealing with him.” Kryeski v. Schott Glass Technologies, 426 Pa.Super. 105, 116, 626 A.2d 595, 600 (1993), appeal denied, 536 Pa. 643, 639 A.2d 29 (1994). In a defamation action, the law requires that the court first determine whether the statement is capable of defamatory meaning. Raffensberger v. Moran, 336 Pa.Super. 97, 102-03, 485 A.2d 447, 450 (1984).

Here, appellant bases her claim on
(a) the nature of [appellant’s] termination together with (b) the January 28, 1992 meeting between Dr. Albright and [appellant], and (c) the eventual hiring of Ms. Mary Burich as Administrative Manager to begin on July 1, 1992, and (d) the acts of Ms. Mary Burich during the period from approximately mid-May through the end of June, 1992.

Amended Complaint ¶ 46. Appellant seems to allege that these factors together somehow constitute publication of a defamatory statement. However, appellant fails to set forth a specific statement. Accordingly, appellant’s claim is without merit. Cf. Cashdollar v. Mercy Hospital, 406 Pa.Super. 606, 616, 595 A.2d 70, 75 (1991) (termination letter, expressing defendant’s evaluation of plaintiff performance in the context of his employment and reasons for his dismissal, is not defamatory on its face).

For the above reasons, the trial court’s order dismissing appellant’s complaint in its entirety with prejudice, is affirmed.

Affirmed.


author: ROWLEY, President Judge:

text:
    649 A.2d 716
    COMMONWEALTH of Pennsylvania, Appellant, v. Daniel Jason OTT. COMMONWEALTH of Pennsylvania, Appellant, v. Matthew Scott SIGNOR.
    Superior Court of Pennsylvania.
    Submitted Sept. 14, 1994.
    Filed Nov. 9, 1994.

      Kenneth A. Osokow, Asst. Dist. Atty., Williamsport for Com., appellant.
    Henry W. Mitchell, Williamsport, for Ott, appellee.
    Peter T. Campana, Williamsport, for Signor, appellee.
    Before ROWLEY, President Judge, and CIRILLO and DEL SOLE, JJ.
   ROWLEY, President Judge:

Before us are the Commonwealth’s consolidated appeals from the judgments of sentence entered against appellees/codefendants Daniel Jason Ott and Matthew Scott Signor. Following a bench trial before the Honorable Thomas C. Raup, appellees were convicted of burglary as a felony of the second degree, pursuant to 18 Pa.C.S. § 3502(c)(2), and were sentenced for burglary as a felony of the second degree, pursuant to the sentencing guidelines at 204 Pa.Code § 303.8. The Commonwealth presents us with a single issue: whether Judge Raup erred in sentencing appellees by means of an offense gravity score of five for a conviction under 18 Pa.C.S. § 3502. Implicit in this claim is the argument that the trial court ought to have found appellees guilty of burglary as a felony of the first degree, rather than as a felony of the second degree. For the following reasons we affirm the judgment of sentence.

In 1990, the Pennsylvania legislature amended 18 Pa.C.S. § 3502 to encompass a lesser grade of burglary. That is, instead of classifying all burglaries as felonies of the first degree, the statute now establishes a gradation, based on the inherent, potential seriousness of the criminal act, between burglary as a felony of the first degree and burglary as a felony of the second degree:

(a) Offense defined. — -A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied po'tiion thereof, with intent to commit a-crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter.
(c) Grading.—
(1) Except as provided in paragraph (2), burglary is a felony of the first degree.
(2) If the building, structure or portion entered is not adapted for overnight accommodation and if no individual is present at the time of entry, burglary is a felony of the second degree.

18 Pa.C.S. § 3502 (emphasis added).

In the present case, appellees were convicted of burglary as a felony of the second degree after breaking into a garage and taking a case of beer while the property owners were asleep in the bedroom of the attached house. A single locked door separated the garage from the kitchen of the home. There was no evidence that appellees attempted to enter into the kitchen through the door leading to and from the garage. The primary issue at the bench trial was whether the building, structure, or portion entered was adapted for overnight accommodation, and whether an individual was present. See 18 Pa.C.S. § 3502(c)(2). The Commonwealth claims that the trial court should have applied the sentencing criteria for a conviction of 18 Pa.C.S. § 3502(c)(1), because, it is argued, the garage was part of a continuum with the actual living space of the home. Appellees concede that a burglary had occurred, but they claim that because the garage was not itself adapted for overnight use, and because no one was present in the garage, subsection (c)(2) is applicable. Thus, the ultimate issue at trial was whether appellees were guilty of a felony of the first or second degree.

Pennsylvania appellate courts have yet to decide whether burglary of an attached garage under the circumstances here present, should be deemed a felony of the first degree (“enters a building or occupied structure, or separately secured or occupied portion thereof, with the intent to commit a crime therein”) or a felony of the second degree (“If the building, structure or portion entered is not adapted for overnight accommodation and if no individual is present----”). While we would welcome an opportunity to clarify this interesting question of law, we are not able to do so here because the issue is not properly before us in this appeal.

Our review of the case record illustrates that, while the Commonwealth claims its appeal involves a sentencing issue coupled with a question of proper offense gravity scoring, the actual Commonwealth argument is that the trial court should have found appellees guilty of burglary as a felony of the first degree, rather than burglary as a felony of the second degree. However, not a single reference is made anywhere in the record to show that the Commonwealth charged appellees with burglary as a felony of the first degree. In the complaint filed against appellees, it is charged that they had committed “Burglary. Sect. 3502(a). F2.” (emphasis added). Furthermore, the transcript returned by the district justice to the court of common pleas described the charges for which the appellees were held for court as “Burglary ... F2 Transcript (emphasis added). The information filed by the district attorney against appellees charged the offense of burglary, without designating whether it was a felony of the first or of the second degree. Most importantly, however, after trial the court entered a written verdict, which stated “that the [appellees] committed the offenses alleged in the information, i.e., on October 25, 1991 the offenses of burglary, a felony of the second degree.... ” (emphasis added).

Thus, appellees were convicted only of burglary as a felony of the second degree. Such a verdict, in essence, acts as an acquittal of burglary as a felony of the first degree. However, the Commonwealth, by implication, now asks us to vacate the trial court’s verdict and find appellees guilty of burglary as a felony of the first degree. This we cannot do. Once appellees were found guilty by the fact-finder of burglary as a felony of the second degree, they cannot be convicted of burglary as a felony of the first degree for the same offense. See Pa.R.Crim.P. Rule 1120(d); Commonwealth v. Kemmerer, 526 Pa. 160, 584 A.2d 940 (1991); Commonwealth v. Roberts, 484 Pa. 500, 399 A.2d 404 (1979); Commonwealth ex rel. Light v. Cavell, 422 Pa. 215, 220 A.2d 883 (1966). The only means, in fact, by which we would be able to address the Commonwealth’s instant claim of improper sentencing within the parameters of 18 Pa.C.S. § 3502 and 204 Pa.Code § 303.8 would be if appellees had been found guilty of burglary as a felony of the first degree. Instead, although the Commonwealth charged appellees with burglary as a felony of the second degree, and they were specifically convicted of that offense, it now claims that the trial court ought to have sentenced appellees pursuant to the guidelines for a burglary as a felony of the first degree conviction.

We hold, therefore, that the trial court followed the specific dictates of the sentencing guidelines in sentencing appellees pursuant to an offense gravity score of five, based on appellees’ convictions of burglary as a felony of the second degree.

Judgment of sentence affirmed.

      . As amended 1990, Dec. 19, P.L. 1196, No. 201 § 1, effective July 1, 1991. Prior to this amendment, all burglaries in the Commonwealth were felonies of the first degree. See Monitor, The Pennsylvania Commission on Sentencing, August 1991, at 5-6. Despite the July 1, 1991 amendment, however, burglary remains a felony of the first degree, except "[i]f the building, structure or portion entered is not adapted for overnight accommodation and if no individual is present at the time of entry,” in which case the offense is a felony of the second degree. 437 Pa.Super.Ct. —8

      . Following the trial judge’s description of a non-jury trial to appellees, counsel for appellees were asked if they, too, were agreeable to a non-jury proceeding. Both responded affirmatively, at which time the following exchange took place:
      THE COURT: As I understand, the main reason [for conducting the trial non-jury] is there are legal issues which are paramount concerns here as apposed [sic] to factual issues? ■
      MR. MITCHELL: That’s correct Your Honor.
      MR. CAMPANA: Yes Your Honor.
      Trial Transcript at 5, 7/21/93.

      . Compare Commonwealth v. Jackson, 401 Pa.Super. 426, 585 A.2d 533 (1991) (for the purposes of sentencing guidelines, pursuant to a charge of burglary, a house is "occupied” when owner or tenant is on back porch. See 18 Pa.C.S. § 3503(a); 204 Pa.Code § 303.8); Commonwealth v. Evans, 393 Pa.Super. 500, 574 A.2d 1051 (1990) (unauthorized entry into an outdoor area used for business storage and enclosed with a locked chain-link fence violates "occupied structure” provision of criminal trespass statute. See 18 Pa.C.S. § 3503(a)); Commonwealth v. White, 371 Pa.Super. 578, 538 A.2d 887 (1988) (entry by man into women’s restroom at a private club violates "separately secured or occupied portion” of criminal trespass statute. See 18 Pa.C.S. § 3503(a)(1)(ii)); Commonwealth v. Dickison, 334 Pa.Super. 549, 483 A.2d 874 (1984) (where no one was present in the motel units when the rooms were burglarized, the trial court erred in imposing an offense gravity score of seven; this Court held that a score of six was proper. See 18 Pa.C.S. § 3502; 204 Pa.Code § 303.8); Commonwealth v. Cannon, 297 Pa.Super. 106, 443 A.2d 322 (1982) (breaking into locked, fenced back yard supported a reasonable inference that defendant intended to enter the house and commit a theft, thus a conviction for attempted burglary was affirmed. See 18 Pa.C.S. § 3502(a); 18 Pa.C.S. § 901(a)).

      . We were not provided with a copy of the sentencing transcript, and thus have no means to further explore the disagreement concerning the sentencing aspect of 18 Pa.C.S. § 3502, as it relates to the instant parties. We note, however, that it is appellant’s responsibility to provide us with a complete record for our appellate review. Commonwealth v. Williams, 357 Pa.Super. 462, 516 A.2d 352 (1986).

      . The sentencing guidelines state that a burglary conviction with a statutory classification as a felony of the first degree could carry an offense gravity score of seven or six, depending on how the facts of a specific case correspond to the language of 18 Pa.C.S. § 3502(a). See 204 Pa.Code § 303.8, revised 8/9/91 (compare the 8/1/88 version of the sentencing guidelines, where each statutory classification of burglary was defined as a felony of the first degree).


text:
    649 A.2d 719
    ESTATE of Carolyn J. HAERTSCH, an Alleged Incapacitated Person. Appeal of Raymond A. HAERTSCH, Sr.
    Superior Court of Pennsylvania.
    Submitted Sept. 28, 1994.
    Filed Nov. 9, 1994.

      Thomas Coval, Willow Grove, for appellant.
    Caryl A. Oberman, Warminster, for appellee.
    Bernadette Haertsch, participating party, pro se.
    Before McEWEN, TAMILIA and FORD ELLIOTT, JJ.
   TAMILIA, Judge:

Raymond A. Haertsch, father of Carolyn J. Haertsch, appeals from the December 15, 1993 Order adjudicating Carolyn partially incapacitated and appointing Bernadette T. Haertsch limited permanent guardian of her 25-year old daughter. The procedural aspects of this case date back to February, 1990, when both parents petitioned to be appointed guardian of their mildly mentally retarded daughter. The trial court found Carolyn to be incompetent and appointed the parents co-guardians, ordering her to live six months with each parent. Carolyn appealed this decision and this Court vacated the Order and remanded the matter, finding the trial court had not applied the proper standard regarding the adjudication of incompetency and the evidence presented was insufficient to establish Carolyn’s mental incompetency. Haertsch Estate, 415 Pa.Super. 598, 609 A.2d 1384 (1992). On November 25, 1992, appellant filed a Petition for Adjudication of Incapacity and Appointment of Guardian and, after two days of testimony, the court entered the Order from which father now takes this appeal.

Father argues the court failed to consider his daughter’s best interests by appointing Bernadette, who has deliberately attempted to exclude him from Carolyn’s life, as her guardian. Appellant contends the court incorrectly appointed the guardian considering only Carolyn’s wishes and thereafter abused its discretion by failing to make any provision for him to visit with the daughter he raised by himself for 14 years and who has only lived with her mother since October, 1989.

Once an individual has been found incapacitated within the meaning of 20 Pa.C.S. § 5501, Meaning of incapacitated person, and in need of guardianship services, it then becomes the court’s responsibility to appoint an individual to serve, granting limited or plenary powers consistent with the incapacitated person’s needs. When making the decision who shall so serve, the court may consider, in addition to all the evidence before it, the preference of the party. Id., § 5511. The selection of a guardian for a person adjudicated incapacitated lies within the discretion of the trial court whose decision will not be reversed absent an abuse of discretion. In re Coulter’s Estate, 406 Pa. 402, 178 A.2d 742 (1962).

Our review of the record, including the trial court’s thorough, well-reasoned Opinion, indicates there has been no such abuse of discretion. The court carefully weighed all evidence presented, including extensive expert testimony, testimony of Carolyn’s admittedly concerned parents, a friend, her minister and Carolyn herself before rendering its decision.

Turning to appellant’s allegation the trial court committed reversible error by failing to include in its Order a visitation provision, we find the court was under no mandate to so provide. Section 5512.1(b)(l — 4) provides a court fashioning an Order appointing a limited guardian may include in said Order

(1) General care, maintenance and custody of the incapacitated person.
(2) Designating the place for the incapacitated person to live.
(3) Assuring that the incapacitated person receives such training, education, medical and psychological services and social and vocational opportunities, as appropriate, as well as assisting the incapacitated person in the development of maximum self-reliance and independence.
(4) Providing required consents or approvals on behalf of the incapacitated person.

Id. The Order providing for the guardianship of Carolyn is set forth in its entirety below:

AND NOW, this 15th day of December, 1993, based upon the evidence received and the record, this Court finds by clear and convincing evidence that Carolyn J. Haertsch is adjudged a partially incapacitated person.
The Court finds that Carolyn J. Haertsch suffers from minor mental retardation, a condition or disability which partially impairs her capacity to receive and evaluate information effectively and to make and communicate decisions concerning essential requirements for her physical health and safety.
Bernadette T. Haertsch is hereby appointed Limited Permanent Guardian of the PERSON and shall have authority to act in behalf of Carolyn J. Haertsch, to provide for the general care, maintenance and custody of said incapacitated person. The Limited Permanent Guardian of the PERSON shall provide such training, education, medical and psychological services and social and vocational opportunities, as appropriate. The Limited Permanent Guardian of the PERSON shall assist said incapacitated person in the development of maximum self-reliance and independence. The Limited Permanent Guardian shall have authority to give consent for surgical or medical treatment except that which is excluded by 20 Pa.C.S.A. Section 5521(D). The Guardian of the PERSON shall file a Report on the social, medical and other relevant conditions required by 20 Pa.C.S.A. Section 5521(C).
The aforementioned judicial determinations have taken into consideration the matters required by 20 Pa.C.S.A. Section 5512.1. The Court’s findings and conclusions are set forth in detail in the accompanying opinion.

This Order complied with the trial court’s obligation to protect and provide for Carolyn’s best interests. It is clear that throughout this very carefully drawn legislation, it was intended that the incapacitated person be permitted the fullest degree of freedom and control over his/her physical and financial affairs. It goes without saying that a twenty-five year old mildly retarded woman has the capacity to make an informed decision about the person with whom she will live and whether or not she wishes to remain in touch with or visit an estranged parent. Unless the decision is irrational and results in a perceivable harm to the incapacitated person, the court should honor her wishes. In cases such as this, where a father appears to have lost the affection of his adult child because of his intransigence and lack of consideration for her apparently well-founded desires to be with her mother and practice her religion, the court rightfully should not compel her to abide by the father’s wishes. If the parties are unable to reach an amicable resolution regarding father’s desire to visit with his daughter after he has made a sincere attempt at reconciliation, perhaps aided by counseling, a review hearing pursuant to § 5512.2 Review hearing, is available. However, it is noted that a petition for review will be dismissed by the court if deemed frivolous. Because father appears sincerely concerned about his daughter and dedicated to assuring her well-being, this important and desirable support for her should not be discarded lightly. Neither should there be a continuous and upsetting adversarial relationship that is contrary to the daughter’s best interest.

Based on the foregoing reasons of law and fact, we affirm the December 15, 1993 Order appointing mother as Carolyn’s guardian, without prejudice to appellant who may petition the court for visitation rights.

Order affirmed.

      . Carolyn Haertsch has not appealed this Order and, therefore, the adjudication of partial incapacity is not before this Court.

      . On April 16, 1992, the Pennsylvania Legislature enacted new measures pertaining to persons now termed "incapacitated.” Act of April 16, 1992, P.L. 108, §6 et seq.


author: SAYLOR, Judge:

text:
    649 A.2d 722
    COMMONWEALTH of Pennsylvania, Appellee, v. Carl GOODING, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 22, 1994.
    Decided Oct. 31, 1994.

      Joseph S. O’Keefe, Philadelphia, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before ROWLEY, P.J., and HUDOCK and SAYLOR, JJ.
   SAYLOR, Judge:

This is an appeal from the judgment of sentence of the Court of Common Pleas of Philadelphia County. Finding no abuse of discretion or error of law, we affirm.

On September 1, 1987, at 11:00 p.m., Marlene Fountain was coming out of her second floor apartment at 2238 N. 15th Street in Philadelphia when she saw Appellant, Carl Gooding, and David Lee struggling on the staircase -with her landlord’s forty-one year old brother, Timothy Lynch. Fountain observed that both Appellant and Lee had handguns. Moments later she heard two shots and saw Appellant and Lee run out the front door. Fountain ran to Lynch’s aid while her daughter telephoned the police. As Lynch lay dying from his gunshot wounds, he said, “Damn, they shot me.”

When the police arrived, they questioned Fountain about the incident. Fearing for the safety of herself and her children, Fountain insisted that she had not seen anything. On March 1,1988, Fountain was persuaded by her brother to give the police a true statement. Fountain identified Appellant and Lee as the two men who shot and killed Lynch from a photographic array.

After shooting Lynch, Appellant and Lee fled to Wallace White’s apartment in New Jersey to hide and plan their escape to Florida. When Appellant and Lee arrived at White’s apartment, they started making telephone calls to see if they could go to Florida. Appellant was acting frantic and White asked Lee what was the matter with him. Lee told White to go into the bedroom and he would handle it. While in the bedroom, White overheard Appellant and Lee speak about shooting Lynch in Philadelphia. Lee said to Appellant, “Thanks for watching my back.” Appellant then made the following statements: “I shot the man. I am loyal to you (Lee) and I thought the man had a gun.”

When White observed that the two men had guns he asked them to leave his apartment. Several minutes later, Appellant and Lee returned to the apartment to use the phone and bathroom. Lee went into the bathroom which was located inside the bedroom. Several minutes later, White heard the sound of breaking glass coming from the bedroom. Lee had barricaded himself in the bedroom and it sounded like the bedroom was being torn apart. Appellant proceeded into the bedroom through the broken glass and debris and stumbled, setting off his gun.

At this point, Lee escaped out of the bedroom window onto the roof and Appellant took White hostage. Appellant placed his gun against White’s head and demanded that White knock on various apartment doors. At one door, tenant John Mentz, opened the door and Appellant pushed White aside and pointed his gun at Mentz. Mentz rushed at Appellant, they struggled, and Mentz was shot. White tried to flee, but Appellant pointed his gun at White and continued to hold him as a hostage.

In the meantime, the police had arrived and were focusing their attention on Lee, who was on the roof of the building. When Appellant heard the police coming, he tried to flee. Appellant stopped at the window of one of the apartments and tapped on it. The occupant, Lloyd Wallace, shouted at Appellant to go away. Appellant kicked in the window and came crashing inside. Wallace ran to get his gun and the two men tried to locate each other in the darkness. Wallace unsuccessfully fired a shot at Appellant and Appellant fired back, shooting Wallace in the face. Wallace shot into the darkness three more times and heard Appellant fall. At that point, Wallace exited his apartment through the window and was discovered by the police. The police ultimately captured and arrested Lee and Appellant. When Appellant was captured and commanded to drop to the ground, the police seized a .38 caliber pistol from under Appellant’s body.

On January 17, 1990, Appellant was convicted of murder in the first degree, criminal conspiracy, and possessing an instrument of crime. The jury could not reach a verdict during the penalty phase and therefore the trial court imposed a sentence of life imprisonment. After Appellant’s post-verdict motions were denied, this appeal followed.

Appellant raises the following issues on appeal: 1) Whether the record is so incomplete as to deprive Appellant of any meaningful appellate review, thus requiring a new trial; 2) Whether the trial court erred by allowing the Commonwealth to refresh the witness’ recollection with a police statement; 3) Whether the trial court erred in allowing the Commonwealth to introduce evidence of Appellant’s activities in New Jersey which included two subsequent shootings and other crimes; 4) Whether the Commonwealth committed prosecutorial misconduct during the trial and closing argument; 5) Whether the trial court erred by admitting into evidence remarks made by David Lee in New Jersey; and 6) Whether the trial court erred by failing to appoint new counsel for Appellant prior to trial.

Initially, Appellant asserted five claims of error, but claimed he was unable to argue four of them because the pertinent notes of testimony had not been transcribed. On March 29, 1994, the Superior Court remanded this matter with instructions to Appellant’s counsel to prepare a statement in the absence of transcript in accordance with Pa.R.A.P. 1923, to serve a copy upon the Commonwealth for amendments, and then to submit the statement and amendments to the trial court for settlement, approval, and certification to the Superi- or Court.

Appellant first contends that he is entitled to a new trial because the record is so incomplete that it denies him meaningful appellate review. Although this matter was remanded by the Superior Court for the preparation of a Rule 1923 statement, Appellant continues to argue that the record is inadequate because two days of trial transcript were missing. Initially, we note that “ ‘[i]t is the appellant’s responsibility to provide a complete and comprehensive record to the reviewing court for the purpose of appeal.’ ” Commonwealth v. Bird, 409 Pa.Super. 211, 216, 597 A.2d 1169, 1171 (1991), citing Commonwealth v. Williams, 357 Pa.Super. 462, 466, 516 A.2d 352, 354 (1986). See, Damiano v. Damiano, 378 Pa.Super. 106, 110, 548 A.2d 298, 300 (1988) (“We may consider only the facts that appear in the official record, and the responsibility for providing a record that is comprehensive and complete rests with the appellant.”) (citations omitted). In this case, pursuant to Pa.R.A.P.1923, the Superior Court remanded this matter to provide Appellant with an opportunity to participate in the creation of a statement in lieu of the two days of trial transcript which were missing.

Pennsylvania Rule of Appellate Procedure 1923 provides as follows:

If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection. The statement shall be served on the appellee, who may serve objections or propose amendments thereto within ten days after service. Thereupon the statement and any objections or proposed amendments shall be submitted to the lower court for settlement and approval and as settled and approved shall be included by the clerk of the lower court in the record on appeal.

Here, Appellant served a statement upon the Commonwealth and the Commonwealth responded with proposed amendments. Appellant’s statement and the Commonwealth’s response were submitted to the trial court which approved and certified a final version to the Superior Court. During these remand proceedings, Appellant never argued that the Rule 1923 proceedings were inadequate or that he was incapable of providing a comprehensive 1923 statement. It was Appellant’s responsibility during preparation of the 1923 statement to include all untranscribed matters which he considered essential to his appeal.

Appellant, however, remained silent not only when the Commonwealth submitted its proposed amendments for approval, but also when the trial court considered the final version which would be certified on appeal. Having failed to object to either the Commonwealth’s proposed amendments or to the final version which was certified by the trial court, Appellant cannot continue to claim that the record is inadequate.

Secondly, Appellant argues that the Commonwealth improperly refreshed a witness’ recollection with a prior consistent statement given by the witness to the police. In making this argument, however, Appellant does not positively identify the witness involved (he only assumes that it is John Mentz), explain the circumstances under which the witness’ prior statement was introduced, or set forth the contents of the statement. Appellant claims that based upon the inadequacy of the record he is unable to discuss the relevant case law or make any argument as to whether the evidence was properly introduced to refresh the witness’ recollection. In Ibn-Sadiika v. Riester, 380 Pa.Super. 397, 401-402, 551 A.2d 1112, 1114 (1988), the Superior Court held that “when an appellant fails to carry forward, or is indecipherably vague in, argumentation upon a certain point in his appellate brief, that point is waived.” See, Harkins v. Calumet Realty, Co., 418 Pa.Super. 405, 614 A.2d 699 (1992) (Issues in the statement of questions presented which are not developed in argument are deemed waived). In this case, having already determined that Appellant’s claim that the record is inadequate is meritless, Appellant cannot continue to rely upon this claim as an excuse for his failure to develop an argument. Appellant has failed to furnish any relevant facts or legal argument with respect to whether the witness’ recollection was improperly refreshed and therefore, Appellant’s claim is waived.

Next, Appellant contends that the trial court improperly permitted the Commonwealth to introduce evidence of two subsequent shootings which took place in New Jersey during Appellant’s flight. The trial court permitted this testimony under the doctrine which provides that “evidence of flight is permissible for the purpose of establishing guilty knowledge .... [t]he essence of this doctrine is based upon a premise that the person who flees does so in recognition of his wrongdoing and is seeking to avoid punishment for that conduct.” Commonwealth v. Jones, 457 Pa. 563, 576, 319 A.2d 142, 149, cert. den., 419 U.S. 1000, 95 S.Ct. 316, 42 L.Ed.2d 274 (1974) (citations omitted). See also, Commonwealth v. Harvey, 514 Pa. 531, 526 A.2d 330 (1987); Commonwealth v. Gorby, 527 Pa. 98, 588 A.2d 902 (1991).

While Appellant concedes that evidence of flight to avoid prosecution is admissible, he argues that as a precondition to its admission the Commonwealth must show that the defendant knew that police authorities were aware of the criminal conduct in question and were in pursuit for that purpose. This argument, however, was rejected by the Supreme Court in Commonwealth v. Jones, supra. In Jones, the appellant also argued that the accused must know that the police are aware of the crime and are in pursuit as a result. The Supreme Court disagreed, stating as follows:

Clearly it was never intended that the question turn upon the knowledge of the officers but rather the reasons which motivated the flight. It is sufficient under this doctrine that the circumstances justify an inference that the accused actions were motivated as a result of his belief that the officers were aware of his wrongdoing and were seeking him for that purpose.

Commonwealth v. Jones, 457 Pa. at 576, 319 A.2d at 149-150.

In this case, immediately after shooting Lynch in Philadelphia, Appellant and Lee fled to Wallace White’s apartment in New Jersey where they hid out and planned their escape to Florida. While at the apartment, Lee barricaded himself in White’s bedroom and tore the room apart. When Appellant walked through the broken glass and debris in the bedroom, he stumbled and his gun went off. At this point Lee escaped to the roof and Appellant took White hostage. When Appellant heard the police arrive, he dragged White through the apartment complex and shot two apartment residents in an effort to flee and elude the police. Based upon this evidence, an inference could be drawn that Appellant fled from the police because he believed he was wanted in connection with the shooting of Lynch and the police were seeking him for that purpose. The trial court thus properly permitted the Commonwealth to introduce evidence of the two shootings which occurred in New Jersey during Appellant’s flight.

Furthermore, evidence of other crimes is admissible where that evidence forms part of the chain or sequence of events leading to the crime at issue, “... or became part of the history of the event on trial, or was part of the natural development of the facts____” Commonwealth v. Ross, 413 Pa. 35, 40, 195 A.2d 81, 83 (1963), quoting Commonwealth v. Williams, 307 Pa. 134, 148, 160 A. 602, 607 (1932). Here, the two shootings which took place in New Jersey were part of the history of the event on trial since they occurred immediately following Appellant and Lee’s flight from Philadelphia and while Appellant was attempting to escape from the authorities. Accordingly, the trial court did not err in admitting evidence of the two shootings in New Jersey.

Appellant further argues that the prosecutor engaged in misconduct during various stages of the trial, including opening and closing statements. It is well established that

not every intemperate or uncalled for remark by the prosecutor requires a new trial. As we have stated many times:
[CJomments by a prosecutor do not constitute reversible error unless the “unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict.”
Furthermore, the prejudicial effect of the prosecutor’s remarks must be evaluated in the context in which they occurred.

Commonwealth v. Reed, 400 Pa.Super. 207, 583 A.2d 459, 470 (1990), appeal denied, 528 Pa. 629, 598 A.2d 282 (1991), quoting Commonwealth v. D 'Amato, 514 Pa. 471, 489-490, 526 A.2d 300, 309 (1987) (citations omitted).

In this case, Appellant fails to refer to any specific instances of prosecutorial misconduct during the trial or indicate the instances when he objected to the prosecutor’s conduct. Appellant makes a general assertion that the prosecutor engaged in misconduct during the trial but that the two days of missing transcripts preclude him from arguing this claim on appeal. After a thorough review of the record, we note that although the transcript from two days of the trial is missing, the opening and closing statements of the prosecution were transcribed and available to Appellant. Appellant therefore had the opportunity to review these transcripts and identify the specific remarks made by the prosecution which Appellant believed constituted misconduct. As a result of Appellant’s failure to specifically identify any remarks by the prosecutor which were allegedly prejudicial, we are unable to address the merits of Appellant’s claim.

Appellant also contends that the trial court erred by admitting into evidence the hearsay statement of co-defendant Lee. At trial, Wallace White testified and made reference to the statement which he had overheard Lee make to Appellant: “Thanks for watching my back.” According to Appellant, the hearsay statement of co-defendant Lee was inadmissible because it was not made in furtherance of or during the continuation of the conspiracy. “The co-conspirator exception allows the introduction of statements made by a co-conspirator, if they were made during the conspiracy, in furtherance thereof, and where there is other evidence of the existence of the conspiracy.” Commonwealth v. Zdrale, 530 Pa. 313, 317, 608 A.2d 1037, 1039 (1992). In Commonwealth v. Smith, 511 Pa. 343, 513 A.2d 1371 (1986), cert. denied, 480 U.S. 951, 107 S.Ct. 1617, 94 L.Ed.2d 801 (1987), the Pennsylvania Supreme Court held that flight from the scene of the crime and division of the proceeds from the crime were part of a common design to carry out the crime, and thus, statements made by one of the co-conspirators during flight in the getaway vehicle were admissible under the co-conspirator exception to the hearsay rule.

In this case, when Appellant and Lee arrived at White’s apartment to plan their escape to Florida, they were in the course of fleeing from the scene of the crime. Accordingly, their actions in New Jersey immediately following the murder were part of a common design and Lee’s statement to Appellant was properly admitted into evidence.

Furthermore, even if Lee’s statement to Appellant was improperly admitted, the error was harmless since there is sufficient independent evidence of Appellant’s guilt based upon the testimony of Marlene Fountain and other witnesses. Commonwealth v. Mayhue, 536 Pa. 271, 639 A.2d 421 (1994) (even if co-conspirator’s statement improperly admitted, error was harmless in light of other overwhelming evidence). At the trial, Marlene Fountain testified that she saw Appellant and Lee struggle with Timothy Lynch, shoot him, and then run away. Fountain also testified that when she ran to Lynch’s aid immediately following the shooting, Lynch uttered, “Damn, they shot me.” Wallace White testified that, shortly after the murder, Appellant and Lee arrived at his home in New Jersey in a nervous state and made immediate arrangements to go to Florida. The jury also heard several witnesses describe how Appellant took White hostage and went on a rampage in White’s apartment complex while trying to escape from the police. Thus, there was other evidence of Appellant’s guilt, apart from White’s testimony concerning Lee’s hearsay statement, upon which the jury could base its finding of guilt.

Finally, Appellant contends that the trial court erred in refusing to appoint him new counsel prior to the commencement of trial. Appellant alleges that counsel was unprepared to represent him since he only visited Appellant once just before the start of the trial. “The decision of whether to grant a request for a change of counsel is a matter vested to the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. Our rules of criminal procedure provide that ‘[a] motion for change of counsel by a defendant to whom counsel has been assigned, shall not be granted except for substantial reasons.’ Pa.R.Crim.P. 316(c).” Commonwealth v. Basemore, 525 Pa. 512, 522, 582 A.2d 861, 865 (1990) (citations omitted). See also, Commonwealth v. Williams, 514 Pa. 62, 522 A.2d 1058 (1987) (refusal to grant request for appointment of new counsel on eve of trial was not abuse of discretion given defendant’s failure to state “substantial reasons” why new counsel should be appointed).

Here, trial counsel began representation of Appellant shortly after Appellant’s arrest in March 1989 and filed a series of pretrial motions and appeared at pretrial hearings on Appellant’s behalf. It was not until the first day of Appellant’s trial that Appellant voiced any dissatisfaction with counsel and petitioned for counsel’s withdrawal. Appellant, however, does not provide any substantial reasons why new counsel should have been appointed. There is no evidence supplied by Appellant that trial counsel failed to provide him with an adequate and effective defense. Since Appellant has not set forth any substantial reasons why new counsel should have been appointed on the eve of trial, the trial court’s refusal of Appellant’s request was not an abuse of discretion.

Judgment of sentence affirmed.


author: WIEAND, Judge.

text:
    649 A.2d 935
    James R. GREGG, Appellee v. Carl L. LINDSAY, Jr., Esquire, Appellant.
    Superior Court of Pennsylvania.
    Argued March 31, 1994.
    Filed Sept. 16, 1994.
    Reargument Denied Nov. 22, 1994.

      Debra Klebanoff, Philadelphia, for appellant.
    Martin J. King, New Hope, for appellee.
    Before CAVANAUGH, WIEAND and OLSZEWSKI, JJ.
   WIEAND, Judge.

This is an action by a would-be legatee against a lawyer who failed to have a will executed by the testator prior to the testator’s death. A jury found that the lawyer’s failure constituted a breach of a third party beneficiary contract and awarded damages to the would-be beneficiary. The trial court denied post-trial motions, and judgment was entered on the verdict. After careful review, we reverse.

Carl Lindsay, Esquire, is a member of the Pennsylvania Bar and has practiced law in Bucks County for many years. In 1979, he drafted a will for Arthur Blain, in which Phyllis Murphy, a friend, was named as sole beneficiary and executrix. This will was duly executed. In November, 1984, Blain was admitted to the Doylestown Hospital, where he was confined to the Intensive Care Unit following a double femoral bypass. While there, Blain was visited by his longtime friend, James Gregg. According to Gregg’s subsequent testimony, he raised with Blain the matter of a will; and after some discussion, Blain directed him to contact Lindsay and have him draft a new will making a substantial bequest to Gregg and also naming Gregg as executor. Also to be included in the will were bequests in favor of the Bucks County SPCA and St. Alban’s Episcopal Church of Syracuse, New York.

Thereafter, Gregg called Lindsay and told him that Blain was in the Intensive Care Unit, was in serious condition, and desired a new will which was to be drafted and executed the same day. To emphasize the need for haste, but without any authority from Blain, Gregg told Lindsay that if a new will could not be drafted and executed the same day, he, Gregg, would find another lawyer to do the job.

Later that evening, Lindsay appeared at Blain’s bedside with the draft of a new will. Lindsay testified that Blain seemed to be unconcerned about the document but did say that the revised will was acceptable. Because he found the circumstances unusual, Lindsay recommended that the execution of the will be witnessed by two subscribing witnesses. When Lindsay was unable to find persons at the hospital to act as subscribing witnesses, he suggested that he return the following morning. This, he said, would also enable him to correct the name of one of the charitable beneficiaries named in the will. Blain did not voice any objection to this procedure. Lindsay, however, did not return until shortly after noon on the following day. When he arrived at the hospital, he found that Blain had been transferred to a Philadelphia hospital where he died later that afternoon.

Gregg filed a civil action against Lindsay, alleging that he, Gregg, was a third party beneficiary to an agreement between Blain and Lindsay. This contract, he alleged, had been breached by Lindsay’s failure to have the new will executed at Blain’s bedside on the night before he died.

When considering an appeal from an order denying a motion for judgment n.o.v., our scope of review is narrow. All of the evidence, and all reasonable inferences drawn therefrom, must be considered in the light most favorable to the verdict winner. Robertson v. Atlantic Richfield Petroleum Products Co., 371 Pa.Super. 49, 58, 537 A.2d 814, 819 (1987), appeal denied, 520 Pa. 590, 551 A.2d 216 (1988). Only in clear cases, where no two reasonable persons could fail to agree that the verdict was improper, should judgment n.o.v. be granted. Geyer v. Steinbronn, 351 Pa.Super. 536, 549, 506 A.2d 901, 908 (1986). Where “the law permits no recovery upon the facts which have been alleged ...” an order denying judgment n.o.v. may be reversed. Henze v. Texaco, Inc., 352 Pa.Super. 538, 541, 508 A.2d 1200, 1202 (1986). Lindsay argues that, as a matter of law, no recovery can be allowed under the facts of this case.

In Guy v. Liederbach, 501 Pa. 47, 459 A.2d 744 (1983), the Supreme Court specifically retained the “requirement that [a] plaintiff must show an attorney-client relationship or a specific undertaking by the attorney furnishing professional services, ... as a necessary prerequisite for maintaining [an action] in trespass on a theory of negligence.” Id. at 58, 459 A.2d at 750. See also: Hatbob v. Brown, 394 Pa.Super. 234, 248, 575 A.2d 607, 614 (1990). What the Court took away with one hand, however, it gave back, in part, with the other. Thus, it created a right of recovery on the theory of a third party beneficiary contract in a narrow class of cases in which it was clear that an innocent party had been injured by legal malpractice in the execution of an otherwise valid will. As the Superior Court observed in Manor Junior College v. Kaller’s Inc., 352 Pa.Super. 310, 507 A.2d 1245 (1986), the Court

adopted the Restatement (Second) of Contracts Section 302 (1979) as an acceptable method to determine the rights of a person claiming the status of third party beneficiary but, as the court did so, it repronounced the basic principle established in Spires [v. Hanover Fire Ins. Co., 364 Pa. 52, 70 A.2d 828 (1950) ] and took pains to make clear that the application of the Restatement was restricted to a quite “narrow class” and is to be seen as a supplement to the Spires standard.

Id., 352 Pa.Super. at 314, 507 A.2d at 1247 (footnote omitted). Under this theory, the fact that the obligor knows that his services will benefit a third person is not alone sufficient to vest in such third person the rights of a third person beneficiary. Marsteller Community Water Authority v. P.J. Lehman Engineers, 413 Pa.Super. 387, 393, 605 A.2d 413, 416 (1992), appeal denied, 533 Pa. 601, 617 A.2d 1275 (1992). There is a two part test, the Court said, in determining whether one is a third party beneficiary.

(1) the recognition of the beneficiary’s right must be “appropriate to effectuate the intention of the parties,” and (2) the performance must “satisfy an obligation of the promisee to pay money to the beneficiary” or “the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.” The first part of the test sets forth a standing requirement. For any suit to be brought, the right to performance must be “appropriate to effectuate the intentions of the parties.” This general condition restricts the application of the second part of the test, which defines the intended beneficiary as either a creditor beneficiary (§ 302(l)(a)) or a donee beneficiary (§ 302(l)(b)), though these terms are not themselves used by Restatement (Second). Section 302(2) defines all beneficiaries who are not intentional beneficiaries as incidental beneficiaries. The standing requirement leaves discretion with the trial court to determine whether recognition of third party beneficiary status would be “appropriate.” If the two steps of the test are met, the beneficiary is an intended beneficiary “unless otherwise agreed between promisor and promisee.”
Applying these general considerations and Restatement (Second) § 302 to the case of beneficiaries under a will, the following analysis emerges. The underlying contract is that between the testator and the attorney for the drafting of a will. The will, providing for one or more named beneficiaries, clearly manifests the intent of the testator to benefit the legatee. Under Restatement (Second) § 302(1), the recognition of the “right to performance in the beneficiary” would be “appropriate to effectuate the intention of the parties” since the estate either cannot or will not bring suit. Since only named beneficiaries can bring suit, they meet the first step standing requirement of § 302. Being named beneficiaries of the will, the legatees are intended, rather than incidental, beneficiaries who would be § 302(l)(b) beneficiaries for whom “the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.” In the case of a testator-attorney contract, the attorney is the promisor, promising to draft a will which carries out the testator’s intention to benefit the legatees. The testator is the promisee, who intends that the named beneficiaries have the benefit of the attorney’s promised performance. The circumstances which clearly indicate the testator’s intent to benefit a named legatee are his arrangements with the attorney and the text of his will.

Guy v. Liederbach, supra 501 Pa. at 60-61, 459 A.2d at 751-752 (footnote omitted). In order for a would-be beneficiary to recover as a third party beneficiary, he or she must show a breach of contract between the lawyer and the testator. “In the case of a testator-attorney contract the attorney is the promisor who promises to draft a will which carries out the testator’s intent to benefit the [beneficiary].” Hatbob v. Brown, supra 394 Pa.Super. at 250-251, 575 A.2d at 615.

The use of this approach is warranted only when the circumstances are analogous to those in Guy v. Liederbach, supra, or are equally compelling. Manor Junior College v. Roller’s Inc., supra 352 Pa.Super. at 315-316, 507 A.2d at 1248. In Guy v. Liederbach, supra, the intent to benefit a third person had been clear from the execution of the written will, and the alleged negligence of the lawyer had been in allowing the person named as executrix and beneficiary to serve also as witness to the will.

The issue before this Court in the instant case is whether Guy v. Liederbach, supra, should be expanded to allow recovery where, as here, (1) the new will was never executed by the testator, and (2) the facts send a mixed signal regarding the person to whom the lawyer owed a primary duty of loyalty.

Courts in other jurisdictions have wrestled with similar factual scenarios and have reached conflicting results. Some courts continue to follow the rule that persons outside the attorney-client relationship have no cause of action against an attorney for his failure to perform a duty owed to his client. Dickey v. Jansen, 731 S.W.2d 581 (Tex.App.1987); Berry v. Dodson, Nunley & Taylor, P.C., 717 S.W.2d 716 (Tex.App.1986), judgment set aside, 729 S.W.2d 690 (Tex.1987); Simon v. Zipperstein, 32 Ohio St.3d 74, 512 N.E.2d 636 (1987). Others, although agreeing that an attorney may be held accountable where an intended legacy has been frustrated, refuse to recognize liability where the attorney purported to be acting in the best interest of his client, Charia v. Hulse, 619 So.2d 1099 (La.App.1993), or were the intent to benefit the third party was not affirmatively expressed in an executed will. Espinosa v. Sparber, Shevin, Shapo, Rosen & Heilbronner, 586 So.2d 1221, 1223 (Fla.App.1991), affirmed, 612 So.2d 1378 (Fla.1993). Accord: Miami Beach Community Church, Inc. v. Stanton, 611 So.2d 538, 538 (Fla.App.1992) (per curiam); DeMaris v. Asti, 426 So.2d 1153, 1154 (Fla.App.1983). Still others recognize a cause of action sounding in either trespass or assumpsit. Auric v. Continental Casualty Co., 111 Wis.2d 507, 513-15, 331 N.W.2d 325, 329 (1983) (“Public policy supports the imposition of liability on an attorney who acts negligently in drafting or executing a will resulting in a loss to the beneficiary named therein.”); Lucus v. Hamm, 56 Cal.2d 583, 15 Cal.Rptr. 821, 364 P.2d 685 (Cal.1961), cert. denied, 368 U.S. 987, 82 S.Ct. 603, 7 L.Ed.2d 525 (1962). Pennsylvania has followed the Restatement’s approach and has led a small group to adopt similar reasoning. See, e.g: Hale v. Groce, 304 Or. 281, 744 P.2d 1289 (1987); Herman v. Frey, 537 N.E.2d 529 (Ind.App.1989).

In Espinosa v. Sparber, Shevin, Shapo, Rosen & Heilbronner, supra, the defendant-lawyer prepared a new will at the client’s request to name as an additional beneficiary a daughter who had been born after the prior will. A dispute arose, however, concerning the value of the estate and, before it was resolved, the client died without having executed the new will. The court denied a claim by the daughter against the lawyer, holding that she would not be allowed to rely on extrinsic evidence that the testator’s intent was other than as expressed in his validly executed -will. The court thereby limited a third party action to those instances in which the lawyer’s conduct had frustrated an intent expressed in the executed will itself. Id. at 1223. This, the court concluded, was necessary to protect the integrity of solemnly executed wills as well, as to prevent fraudulent claims. Id. at 1224.

In Krawczyk v. Stingle, 208 Conn. 239, 543 A.2d 733 (1988), the Supreme Court of Connecticut evidenced its understanding of the far-reaching consequences of allowing actions by disappointed, would-be beneficiaries against lawyers who drafted wills which remained unexecuted by the testator. There, the decedent, prior to undergoing open heart surgery, had employed a lawyer to prepare testamentary documents, and an appointment had been made for signing the same. Prior to signing the will, however, the plaintiff, a beneficiary designate, called the lawyer and cancelled the appointment because the testator had suffered a massive heart attack and was in intensive care. The lawyer put the documents aside and did not immediately complete the drafting thereof. On the following day, however, he was called by the plaintiff and asked to bring the documents to the hospital. By the time the documents were completed and taken to the hospital, the client had died. In an action against the lawyer, it was alleged that he had failed to act with due diligence by failing to complete the documents after learning of the client’s hospitalization. The Supreme Court of Connecticut, being concerned about a lawyer’s undivided loyalty to the client, refused to allow recovery. The Court said:

A central dimension of the attorney-client relationship is the attorney’s duty of “[e]ntire devotion to the interest of the client.” This obligation would be undermined were an attorney to be held liable to third parties if, due to the attorney’s delay, the testator did not have an opportunity to execute estate .planning documents prior to death. Imposition of liability would create an incentive for an attorney to exert pressure on a client to complete and execute estate planning documents summarily. Fear of liability to potential third party beneficiaries would contravene the attorney’s primary responsibility to ensure that the proposed estate plan effectuates the client’s wishes and that the client understands the available options and the legal and practical implications of whatever course of action is ultimately chosen. These potential conflicts of interests are especially significant in the context of the final disposition of a client’s estate, where the testator’s testamentary capacity and the absence of undue influence are often central issues.

Id. at 246-247, 543 A.2d at 736 (citations omitted).

In the instant case, there was no breach of contract between the decedent and his lawyer. It was Gregg and not Blain who had called Lindsay and who had directed him regarding the preparation of a will. Lindsay’s first direct contact with Blain came later the same day when Lindsay took the will which he had prepared to Blain’s hospital room. There, according to Lindsay, Blain said the will was acceptable but appeared unconcerned and disinterested. For this reason and because of the unusual circumstances leading to the drafting of the will, Lindsay sought several subscribing witnesses. Finding none, he said, he told Blain that there was a correction to be made regarding the name of one of the charities and that he would return the following morning when the will could be executed and witnessed. Lindsay testified that Blain agreed to this. Although Lindsay’s explanation was for the jury’s consideration and may have been rejected, it is clear that the will was not executed at that time. In Guy v. Liederbach, supra, the Supreme Court found that the executed will had firmly evidenced the existence of the third party beneficiary contract intended to benefit the legatee. Here, however, there was no executed will which, under such an analysis, could clearly establish an intent by the testator to benefit the third person. Where one seeks to prove the existence of an oral contract for the making of a will, he assumes an exacting evidentiary burden which requires clear, direct and precise evidence of each of the elements to a valid contract. Hatbob v. Brown, supra 394 Pa.Super. at 239-240, 575 A.2d at 609. Thus, even if one rejects Lindsay’s explanation in full, there is no competent evidence of that which transpired between Lindsay and Blain at the hospital sufficient to permit a finding that they had entered a contract to make a will at that time.

To hold otherwise, under the circumstances of this case, would open the doors to mischief of the worst type. To permit a third person to call a lawyer and dictate the terms of a will to be drafted for a hospitalized client of the lawyer and to find therein a contract intended to benefit the third person caller, even though the will was never executed, would severely undermine the duty of loyalty owed by a lawyer to the client and would encourage fraudulent claims. See: Charia v. Hulse, supra.

We reject appellee’s argument that he was acting as agent for Blain. Even if his initial contact with Lindsay had been authorized by Blain, when Lindsay and Blain met in Blain’s hospital room, they were acting face to face and without assistance from any intermediary. If Lindsay’s version of this meeting is to be rejected, the fact remains that, for one reason or another, the will was not then executed. At this point in time, therefore, there was no evidence of a contract by which the parties intended to confer a present benefit on Gregg.

Even if one were somehow to find a contract between Biain and Lindsay to confer a benefit on Gregg, one is hard pressed to find that Lindsay breached his contract. Lindsay drafted the will which Gregg had instructed him to draft and took it to Blain’s hospital room later on the same day. Biain, according to Lindsay’s testimony, told him that it had not been necessary to come and readily agreed to postpone the signing of the will until the following day. Whatever the explanation for this, it is uncontradicted that Biain, in fact, did not execute the will that night and that Lindsay was to return the following day. This Lindsay did, at or about 1:00 p.m. Where, one must ask, is the breach of contract? There is no evidence of an agreement that Lindsay, in all events, would have the will executed that first night or that he was in some way required to disregard his client’s best interests by making certain of the client’s intent and understanding in order to serve Gregg.

This is nothing more than a case in which the testator died before he had executed a new will. His death did not confer upon a disappointed beneficiary a cause of action against the lawyer who drafted the will and who, with the testator’s consent, deferred execution of the will until the following day.

Because we conclude that, as a matter of law, there can be no recovery in this action, we do not consider the alleged trial errors asserted in support of appellant’s motion for new trial.

Judgment reversed.

CAVANAUGH and OLSZEWSKI, JJ., concur in the result.

      . Appellee’s argument in this case has frequently sounded in terms of negligence and malpractice, but under Guy v. Liederbach, supra, there can be no recovery for negligence because there was no attorney-client relationship between Gregg and Lindsay.

      . We reject appellee’s attempt to find a contract in the note of a nurse that Lindsay would "return in the a.m." There is no evidence of any contract obligating appellant to return to the hospital before noon.


author: HESTER, Judge.

text:
    649 A.2d 941
    Alex GILDERMAN and Janet Gilderman, Appellants v. STATE FARM INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued March 1, 1994.
    Filed Sept. 21, 1994.
    Reargument Denied Nov. 30, 1994.

      Jonathan Wheeler, Philadelphia, for appellants.
    James T. Moughan, Philadelphia, for appellee.
    Before CIRILLO, SAYLOR and HESTER, JJ.
   HESTER, Judge.

The issue presented herein is whether an insurer, which has agreed to pay repair or replacement costs less depreciation in advance of actual repair or replacement of a covered loss, may automatically withhold both depreciation and a flat twenty percent representing contractor overhead and profit from its advance payment. We conclude that it may not and reverse the grant of summary judgment in favor of the insurer in this action. We remand for further proceedings.

Alex and Janet Gilderman instituted this class action on behalf of themselves and other insureds suffering a covered loss on or after January 1, 1991, under a homeowners’ policy of insurance issued by State Farm Insurance Companies (“State Farm”) in Pennsylvania and containing the following, or similar language:

(2) We will pay the cost of repair or replacement, without deduction for depreciation, but not exceeding the smallest of the following amounts:
(a) the limit of liability this policy applying to the building;
(b) the replacement cost of part of the building damaged for equivalent construction and use on the same premises; or
(c) the amount actually and necessarily spent to repair or replace the damaged building.
(3) We will pay the actual cash value of the damage, up to the policy limits, until actual repair or replacement is completed.

(emphasis added).

The type of homeowners’ policies at issue provide replacement cost coverage. We quote the brief of Pennsylvania Defense Institute, which was granted permission to file as amicus curiae. The brief succinctly describes what replacement cost coverage is designed to provide for an insured:

Replacement cost coverage was devised to remedy the shortfall in coverage which results under a property insurance policy compensating the insured for actual cash value alone. That is, while a standard policy compensating an insured for the actual cash value of damaged or destroyed property makes the insured responsible for bearing the cash difference necessary to replace old property with new property, replacement cost insurance allows recovery for the actual value of property at the time of loss, without deduction for deterioration, obsolescence, and similar depreciation of the property’s value.

Brief of Amicus Curiae at 8, quoting, Annot., Construction and Effect of Property Insurance Provision Permitting Recovery of Replacement Cost of Property, 1 A.L.R. 5th 817, 827-28 (1992).

In the type of policy at issue, however, the insured may not receive the full repair or replacement cost of a covered loss until repair or replacement occurs. Instead, they receive “actual cash value” for a loss until repairs are made, as follows. Under clause three, the insurer agrees to pay “actual cash value” until repair or replacement actually occurs. Under clause two, the insured receives full repair or replacement costs (not exceeding the policy limits), without deduction for depreciation, after the repairs have been made. Thus the insured may reap the benefit of his depreciation coverage only if he actually repairs or replaces the covered loss.

“Actual cash value” is not defined in the policy. However, as the above quote would indicate, actual cash value consistently has been interpreted as meaning “the actual cost of repair or replacement less depreciation.” Canulli v. Allstate Insurance Co., 315 Pa.Super. 460, 462 A.2d 286 (1983). Indeed, State Farm concedes, “In Canulli, the court defined actual cash value as ‘the actual cost of repair or replacement less depreciation.’ ” Appellant’s brief at 31.

The issue presented in this appeal concerns State Farm’s routine practice of deducting both depreciation and a flat twenty percent from all its repair or replacement cost estimates and offering an advance check for this amount to its insureds as payment of “actual cash value.” The twenty percent represents contractor overhead and profit.

At this point, we are compelled to indicate precisely what this appeal does not involve. This action is necessitated by the fact that the entire brief of amicus curiae and a substantial portion of the brief of State Farm is devoted to an issue not raised by appellants. The issue discussed is whether the provision allowing for payment of full repair or replacement costs only in the event of repair or replacement is void as against public policy. Amicus curiae and State Farm strenuously defend the enforceability of its requirement that repair or replacement occur before full repair or replacement costs are paid. However, at no point do appellants argue that they were entitled to full repair or replacement costs without a depreciation deduction prior to actual repair or replacement.

Instead, appellants have framed the interpretation issue presented to this court as follows:

I. THE ACTUAL CASH VALUE OF A COVERED PROPERTY LOSS INCLUDES A GENERAL CONTRACTOR’S OVERHEAD AND PROFIT. WHERE THE CONTRACT OF INSURANCE FAILS TO DEFINE ACTUAL CASH VALUE AND IS SILENT AS TO WHAT IS SUBSUMED WITH THAT TERM, STATE FARM CANNOT WITHHOLD PAYMENT FOR A GENERAL CONTRACTOR’S OVERHEAD AND PROFIT FROM THE ACTUAL CASH VALUE PAYMENT OF BENEFITS UNDER ITS REPLACEMENT VALUE POLICY.

Appellants’ brief at 1; see also Appellants’ brief at 8 (“The fundamental inquiry underlying this litigation is precisely where the cost for a general contractor’s overhead and profit fit into the loss payment equation, i.e. replacement cost less depreciation = actual cash value.”).

Appellants’ argument is: prior to repair or replacement, they are entitled to “actual cash value,” as expressly provided in the policy; “actual cash value” means “repair or replacement cost less depreciation”; repair or replacement costs necessarily include contractor overhead and profit; and thus, State Farm may not deduct automatically twenty percent representing contractor costs from its estimate of actual repair or replacement costs.

This misguided effort to re-frame the issue on appeal creates the appearance of a thinly disguised attempt by State Farm and amicus curiae to have us limit the holding of Ferguson v. Lakeland Insurance Co., 408 Pa.Super. 332, 596 A.2d 883 (1991). In Ferguson, we struck down as void against public policy a provision requiring an insured who procured replacement coverage to actually replace property before receiving the full replacement value of the property. In that case, the insurer denied coverage. We reasoned that it was unconscionable to require insureds to procure from their own funds, which they may not have, replacement property prior to receipt of full replacement cost since the insureds expected to receive such coverage by purchasing replacement value coverage.

State Farm and amicus curiae are correct in noting that appellants ask us to apply the reasoning in Ferguson. However, appellants do so only in the context of the stated issue on appeal, viz, appellants suggest that it is unfair for State Farm to require them to pay twenty percent for contractor’s overhead and profit from their own funds when they may not have such funds in light of the fact that the insurer has agreed to pay repair or replacement costs less only depreciation prior to repair or replacement and in light of the fact that contractor’s overhead and profit is a component part of repair or replacement costs. Appellants have not asked us to declare void as against public policy the provision requiring repair or replacement prior to payment of full repair or replacement costs. Amicus curiae and State Farm will have to wait to have the issue re-visited — in a case wherein it is raised.

We now examine the record to determine whether State Farm always deducts the twenty percent or whether it does so only in cases where it seems unlikely that an insured would procure a contractor to repair or replace a covered loss. We do this since it is relevant to our determination of whether the practice is improper.

Appellants instituted this action with regard to losses occurring on or after January 1, 1991. They allege in their complaint that since that date, State Farm has always deducted twenty percent from the top of its repair or replacement estimates for purposes of computing the actual cash value of a loss. State Farm never filed an answer to this allegation. Instead, it filed preliminary objections, and the parties proceeded to file cross-motions for summary judgment pursuant to stipulated facts. In the cross-motions for summary judgment, the issue presented, which both parties concede involved a question which controlled the outcome of the case, was whether State Farm was permitted to deduct this twenty percent.

Thus, there seems to'be no question that State Farm always deducts the twenty percent in addition to depreciation from its actual cash value calculation. Further, at page twenty-nine of its brief, where State Farm begins its discussion of whether this twenty percent should be included in its repair or replacement cost estimates, State Farm defends its actions by stating the purpose of its practice is “to apply the insurance contract in a consistent manner which accurately and properly addresses how loss settlement payments are made in all property damage claims scenarios.... ” Appellee’s brief at 29. Thus, we assume for purposes of this appeal that State Farm always deducts twenty percent from its repair or replacement cost estimates.

The positions of the parties are as follows. Appellant argues that contractor overhead and profit must always be included in repair or replacement cost estimates. State Farm counters that contractor overhead and profit never has to be included in repair or replacement cost estimates since contractors are not always used to repair or replace damaged property.

We are guided by the following principles in deciding the issue. The interpretation of a policy of insurance is a question of law, subject to full review by this Court. Carpenter v. Federal Insurance Co., 432 Pa.Super. III, 637 A.2d 1008 (1994); State Farm Mutual Insurance Co. v. Judge, 405 Pa.Super. 376, 592 -A.2d 712 (1991). In construing a policy, coverage provisions are interpreted to afford the greatest possible protection to the insured, and the insured’s expectations are our focus. State Farm Mutual Insurance Co. v. Judge, supra. Furthermore, words in an insurance contract are to be given their plain and ordinary meaning. Carpenter v. Federal Insurance Co., supra.

In the present case, State Farm clearly agreed to pay to its insureds the “actual cash value” of a covered loss whether or not repairs or replacement actually occur. Actual cash value has consistently been interpreted to mean repair or replacement costs less depreciation. Repair or replacement costs logically and necessarily include any costs that an insured reasonably would be expected to incur in repairing or replacing the covered loss.

First, we discuss appellants’ claim that repair or replacement cost estimates “necessarily” include twenty percent for a general contractor’s overhead and profit. We. believe that there clearly are certain types of property damage claims which will not require the services of a general contractor. An example is where the loss involves only a damaged pipe, and a plumber alone normally would be called to perform all necessary repairs. In this respect, we therefore agree with State Farm’s position that there are some types of covered losses where the services of a general contractor normally would not be utilized. Thus, in some cases, contractor expenses would not have to be included in repair or replacement cost estimates.

Indeed, appellants implicitly concede that general contractors are not always needed, noting that “it is generally accepted in the building trade that if more than three trade categories of subcontractors aré involved in the repairs, the owner is entitled to the services of a general contractor to obtain bids, hire the subcontractors and coordinate/supervise the work.” Appellants’ brief at 14-15 (emphasis added).

On the other hand, however, there are types of property damage where a homeowner would use the services of a general contractor. There are many instances where the insured reasonably would be expected to call a contractor, especially where there is extensive damage to a home requiring the use of more than one trade specialist. Thus, State Farm may not make repair or replacement estimates and then deduct twenty percent representing contractor’s fees when those expenses reasonably are expected to be incurred.

State Farm defends its actions first by observing that a contractor’s costs are contingent and may never be incurred. State Farm posits that it is unfair for an insured to receive advance payment for such expenses. We make two observations in regard to this argument. First, contractor expenses may well be contingent; however, the same can be said of all repair or replacement costs. For example, the insured may be a plumber, repair a covered loss himself, and incur no labor costs. The insured may be able to obtain goods at wholesale, used, or free and never incur the retail cost of parts. All repair or replacement costs are, in theory, “contingent” prior to being incurred.

Second, and more importantly, the issue is not whether a given cost is contingent. The issue is what State Farm agreed to pay to its insureds prior to actual repair or replacement. It agreed to pay “actual cash value,” which means “repair or replacement cost less depreciation.” Thus, the real inquiry is what is included in “repair or replacement costs.” We hold that repair or replacement costs include any cost that an insured is reasonably likely to incur in repairing or replacing a covered loss. In some instances, this will include use of a general contractor and his twenty percent overhead and profit.

In this respect, we observe that an insurer owes its insured a duty of good faith and fair dealings:

The Pennsylvania Supreme Court has long held that an insurer must act with the “utmost good faith” toward its insured. Fedas v. Insurance Co. of Pa., 300 Pa. 555, 558, 151 A. 285, 286 (1930); see also Dercoli v. Pennsylvania Nat’l Mut. Ins. Co., 520 Pa. 471, 554 A.2d 906 (1989); Cowden v. Aetna Casualty & Sur. Co., 389 Pa. 459, 134 A.2d 223 (1957). This heightened duty is necessary because of the special relationship between an insurer and its insured and the very nature of the insurance contract. The insurer’s duty of good faith, therefore, is contractual and arises because the insurance company assumes a fiduciary status by virtue of the policy’s provisions which give the insurer the right to handle claims and control settlement. See, e.g., Gray v. Nationwide Mut. Ins. Co., 422 Pa. 500, 223 A.2d 8 (1966).

Romano v. Nationwide Mutual Fire Insurance Co., 435 Pa.Super. 545, 550, 646 A.2d 1228, 1231 (1994). Good faith includes an obligation to make reasonable investigation into a fact. Id. State Farm, not an insured entitled to such costs, benefits by State Farm’s uniform retention of the twenty percent. Supporting this practice under the guise of treating all insureds the same is disingenuous. All losses are not the same.

State Farm offers a second rationale for its practice, arguing that an insured would receive a windfall if permitted to recover a repair or replacement cost which never may be incurred. In this respect, we note that insureds under these policies have paid an additional premium for replacement cost coverage so that the insured can afford to repair or replace a loss at current market value and essentially keep the value of his property the same. An insured loses the benefit of the replacement cost coverage by electing not to repair or replace. It can hardly be said that an insured reaps a windfall by obtaining payment of actual cash value determined in a fair and reasonable manner when that is precisely what the insurer has agreed to pay under its policy in advance of actual repair or replacement.

Motion to strike portions of the reproduced record granted. Order reversed. Case remanded for a determination of class certification and further appropriate proceedings to resolve the claims in appellants’ complaint in light of our determination herein. Jurisdiction relinquished.

      . The contested order was entered on November 16, 1993, and appellants filed a timely appeal from that order. The trial court subsequently entered an order indicating that the November 16, 1993 order was interlocutory and asking us to certify the order for interlocutory review. We quashed the appeal from the second order since the appeal from the first order was pending.
      Thus, there appears to be a question about the finality of the November 16, 1993 order, which entered ‘‘partial” summary judgment in favor of State Farm. The practice of deducting the twenty percent formed the gravamen of all appellants' counts in their complaint, and the practical effect of the order was to place appellants out of court, preventing them from recovering in this action against State Farm. Accordingly, it was a final, appealable order. See In re Interest of M.B., 388 Pa.Super. 381, 565 A.2d 804 (1989) (where practical effect of order was to place litigant out of court on claims in action, it was a final, appealable order). Indeed, the effect of the ruling was to dismiss the complaint, which long has been a final, appealable ruling. See Harcourt v. General Accident Ins. Co., 419 Pa.Super. 155, 158 n. 1, 615 A.2d 71, 73 n. 1 (1992).