author: CERCONE, Judge:

text:
    482 A.2d 1073
    FRANKEL-WARWICK LIMITED PARTNERSHIP v. LOCAL 274, HOTEL, BARTENDERS AND RESTAURANT EMPLOYEES UNION, AFL-CIO and James Small, Individually and in his official capacity as President, Local 274, Hotel, Bartenders and Restaurant Employees Union, AFL-CIO, Appellants.
    Superior Court of Pennsylvania.
    Argued Nov. 23, 1983.
    Filed Oct. 5, 1984.

      Ira Silverstein, Philadelphia, for appellants.
    Andrea B. Wapner, Philadelphia, for appellee.
    Before MONTEMURO, WATKINS and CERCONE, JJ.
   CERCONE, Judge:

Frankel-Warwick Limited Partnership, plaintiff and appellee in this equity action, is owner and proprietor of the Warwick Hotel, which is located at 17th and Locust Streets, Philadelphia. The union was the collective bargaining representative until January 1982 of the employees working in the restaurants and banquet room of the Warwick. Until then, R and K Caterers rented those facilities; however, its lease was assigned to Hospitality Investments, Inc. (HHI). HHI assembled the former R and K employees and announced that the union was no longer to be recognized as the collective bargaining agent. Moreover, all of the former R and K employees were on a trial basis and their wage scale was sharply reduced. The union began picketing HHI immediately by maintaining a presence by members of the union at the entrances to the Warwick Hotel. HHI had an office within the hotel and testimony at the hearing below established that the union timed its picketing to coincide with various banquets which HHI scheduled.

Appellee Warwick Hotel has no part in the labor dispute. It has instituted this complaint in equity to restrain what it asserts was the mass picketing of the hotel entrances. An ex parte injunction was granted on February 25, 1982, which limited picketing to two pickets at each entrance and no relief pickets within one thousand feet from either entrance. On March 10, 1982, an application for preliminary injunction was made and after testimony was taken, it was granted on the same terms. The union then demanded a final hearing after which a final decree was filed. This decree maintained the original basic provisions of only two pickets per entrance, but with no relief pickets within 500 feet in any direction. The union appealed from this final decree.

On appeal from a final decree, the standard of review is not whether there were “any apparently reasonable grounds for the action of the court below”, as is the case when the issuance of denial of preliminary injunctive relief is reviewed. See e.g.: Link Belt Co. v. Local Union No. 118 of American Federation of Technical Engineers, 415 Pa. 122, 129, 202 A.2d 314, 318 (1964); Philadelphia Minit-Man Car Wash Corp. v. Building and Construction Trades Council of Philadelphia and Vicinity, 411 Pa. 585, 589, 192 A.2d 378, 380 (1963); Mead Johnson & Co. v. Martin Wholesale Distributors, Inc., 408 Pa. 12, 19, 182 A.2d 741, 745 (1962). On the contrary, the test is whether the trial court, in entering a final decree, abused its discretion or committed an error of law. Westinghouse Electric Corp. v. United Electrical, Radio & Machine of America, (CLO) Local 601 et al., 353 Pa. 446, 46 A.2d 16, 18 (1946) (Lower court denied injunctive relief and dismissed complaint). See also: Sack v. Feinman, 489 Pa. 152, 165-66, 413 A.2d 1059, 1066 (1980); Felmlee et al. v. Lockett, 466 Pa. 1, 7, 351 A.2d 273, 276 (1976); Krosnar v. Schmidt Krosnar McNaughton Garrett Co., 282 Pa.Super. 526, 534, 423 A.2d 370, 374 (1980). Neshaminy Contractors, Inc. v. Philadelphia, Pennsylvania Building and Construction Trades Council, AFL-CIO, 303 Pa.Superior Ct. 420, 423, 449 A.2d 1389, 1390 (1982).

The Pennsylvania Labor Anti-Injunction Act (43 P.S. § 206a, et seq.) limits the jurisdiction of courts over labor disputes to certain specific situations. These measures were enacted under a public policy favoring the rights of the worker:

“[I]t is necessary that he have full freedom of association, self-organization, and designation of representatives of his own choosing to negotiate the terms and conditions of his employment, and that he shall. be free from the interference, restraint or coercion of employers of labor or their agents in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 43 P.S. § 206b(a).

However, courts do have jurisdiction to issue injunctions in labor disputes where, during the course of the dispute, the representatives of a labor organization “seize, hold, damage, or destroy the plant, equipment, machinery, or other property of the employer with the intention of compelling the employer to accede to any demands, conditions, or terms of employment, or for collective bargaining.” 43 P.S. § 206d(d).

The chancellor took the within dispute out of the purview of the Act by the aforementioned exception. In its opinion in support of the Final Decree, the court found that:

"... [P]ickets estimated by each witness as 25 in number, had occupied the sidewalk fronting the main or 17th Street entrance of the hotel, described as 18 feet wide. The pickets were 18 inches apart and persons seeking to enter the hotel had to pick their way through spaces in the picket line, sometimes brushing against the pickets as they did so. Passersby on the sidewalk were seen to have to detour into the vehicular cartway to get by. The innermost of the pickets were four inches from the first or bottom step of the hotel entrance. Security guard Brown testified the pickets were talking in loud voices.
On one occasion, a woman entering the building asked hotel personnel for help to pass through the line and a security guard escorted her through. Picketing occurring at hours of the day when transients usually arrive would prevent taxicabs or airport limousines from pulling up to the curb to discharge passengers, forcing them to discharge in the middle of the cartway. Picketing also was in fact engaged in at times when none of the business of HHI, the employer of the union members, was being carried on and none of these employees were on duty.”

The right of picketing, when free from coercion, intimidation, and violence, is a right constitutionally guaranteed as one of free speech. Westinghouse Electric Corporation v. United Electrical, Radio and Machine Workers of America, (C.I.O.) Local 601, 353 Pa. 446, 46 A.2d 16 (1946). From our consideration of the record we disagree with the trial court that the activities of the union constituted a “seizure” of the Warwick Hotel as that phenomenon has been interpreted by our courts. Moreover, we find the court’s alternative reliance on 43 P.S. § 206i as unsupported by the evidence.

Mass picketing which denies access to a plant constitutes a plant seizure. Westinghouse Electric Corp. v. Int’l Union of Electrical, Radio and Machine Workers, AFL-CIO, 262 Pa.Superior Ct. 315, 396 A.2d 772 (1978) (cases cited therein). In that case, the evidence clearly and completely supported the court’s finding that a plant seizure had occurred. Our court stated that “large numbers of pickets massed at every gate leading to Westinghouse’s plants and prevented, by physical violence or express and implied threat thereof, entrance to the facilities by all persons who attempted to enter.” Id., 262 Pa.Superior Ct. at 319, 396 A.2d at 774. In Altemose Construction Co. v. Building and Construction Trades Council of Phila., 449 Pa. 194, 296 A.2d 504 (1972), the Supreme Court had no difficulty in concluding that the activities of the defendant fell within the violence exception to the Labor Anti-Injunction Act, 43 P.S. § 206d. There one thousand workers “descended” on a construction site. Damage was estimated at $300,000; two security guards were stoned and their vehicle was destroyed; police could not control the mob; members of the defendant labor organization cheered the scene of violence and destruction. Thus, an injunction was properly ordered.

. In Neshaminy Contractors, Inc. v. Philadelphia, etc., supra, our court reversed the final decree of the court which refused to issue an injunction where the evidence, including videotapes, established that vehicles approaching the entrance to an employer’s construction site were denied access.

“When a vehicle approached the gate, one or more pickets engaged the driver in conversation while several others placed themselves in front of the vehicle. The latter pickets refused to move, and the vehicle was thereby denied entrance. The absence of violence, a fact noted by the trial judge, was attributable solely to the unwillingness of approaching vehicle operators to challenge physically the pickets stationed in front of their vehicles.” Id. 303 Pa.Superior Ct. at 422, 449 A.2d at 1390.

In Capital Bakers v. Local Union No. 464 of the Bakery and Confectionary Workers International Union (AFL-CIO) of America, 281 Pa.Superior Ct. 384, 422 A.2d 521 (1980), the injunction limiting picketing was affirmed where the defendant union members scattered roofing nails on the driveways to a plant which it was striking. There was evidence of threats attributable to the defendants also.

In the instant case, the evidence established of record falls short of that amounting to a seizure or to violence which would qualify within the exception to the Labor Anti-Injunction Act. Mere difficulty of passage of the hotel’s guests owing to the large number of pickets absent an intent to prevent their entrance and egress cannot be termed “seizure” of the hotel. On the contrary, on the primary night in question, each of the 20-25 pickets wore a sign publicizing their grievance to those attending a banquet catered by HHI, the employer whom the union was picketing. Their stated goal was to educate those attending the banquet about their grievances. While the presence of the pickets may have made travel on the sidewalk somewhat difficult, we do not perceive from the record any instance of threats, intimidation or physical restraint to constitute a seizure. We, therefore, feel the trial court abused its discretion in limiting appellants’ right to picket as part of their labor dispute.

Order of the lower court is reversed and the final decree is vacated.

WATKINS, J., dissents.

      . Although the trial court made no findings of fact, as required by the Labor Anti-Injunction Act, § 206i, it cited these subsections of the Act as applicable in this case:
      "(a) .... unlawful acts .... have been committed and will be continued unless restrained.
      (b) substantial and irreparable injury to complainant’s property will follow unless relief requested is granted.
      (c) greater injury will be inflicted upon complainant by the denial of relief than ... upon defendants by granting relief.
      (d) no item of relief granted ... is prohibited under section [six] of this act. (43 P.S. § 206f.).
      (e) complainant has no adequate remedy at law.
      (f) the public officers charged with the duty to protect complainant’s property are unable to furnish adequate protection.”
      The evidence does not support these sub-sections.

      . Only the activities occurring on five specific days of picketing were discussed at the hearing. On only one was the number of pickets between 20 and 25 people. On the remaining days there was sporadic picketing with from 3 to 10 people and no evidence of blocking of entrances.


source: Caselaw Access Project

author: CERCONE, President Judge: HESTER, Judge,

license: Public Domain

text:
    482 A.2d 1076
    In the Matter of the ADOPTION OF April FERRANTE. Appeal of Jean FERRANTE, Respondent and Natural Mother of April Ferrante, Appellant.
    Superior Court of Pennsylvania.
    Argued June 9, 1983.
    Filed Oct. 5, 1984.
    Order Reversed April 12, 1985.

      Anthony L. Gambatese, Erie, for appellant.
    William A. Dopierala, Erie, for participating party.
    Before CERCONE, President Judge, and SPAETH and HESTER, JJ.
   OPINION

CERCONE, President Judge:

This is an appeal from a final decree terminating the parental rights of appellant, Jean Ferrante in her daughter April Ferrante.

April was born on September 14, 1979. On October 16, 1979 she was taken to a hospital for a routine check-up where she was found to be suffering from burns and inflammation on her buttocks, legs, and heels believed to be caused by extended contact with urine. Children’s Service of Erie County (Services) was contacted. Services filed a petition to have April declared a dependent child. She was released from the hospital on October 26, 1979, and was placed in foster care. The child was adjudicated dependent on November 2, 1979. On December 10, 1979, after a dispositional hearing, the foster care was continued with visitation rights in appellant and appellant was directed to cooperate with St. Vincent’s Mental Health in a treatment program to be established.

Over the next eighteen months or so, various correspondences were exchanged between the court, Services, St. Vincent and other mental health and social welfare organizations or agencies concerning appellant’s participation in the treatment program and her behavior towards April. On June 17, 1981, Services filed a petition to involuntarily terminate the parental rights of appellant. Testimony was taken on such petition on October 29, 1981, and on November 24, 1981. By decree dated August 4, 1982, the court refused to terminate appellant’s parental rights and directed that visitation with April be resumed. The court ordered appellant to continue treatments and medication as ordered by appellant’s psychiatrist and to attend counseling suggested by Services. Any change was to be reported to the court.

Services filed exceptions to the decree of August 4, 1982, as well as a petition for rehearing concerning the effect of the visitations upon April. Appellant filed a petition for partial custody and termination of Services’ supervision. Testimony was taken on the various matters on October 20, 1982, and the Orphans’ Court by decree of October 25, 1982 terminated visitation until further testimony could be taken. Further testimony was heard on November 22, 1982, and by decree dated December 22, 1982, the court terminated appellant’s parental rights to April, finding that April had been removed from appellant for more than six months. The conditions which led to the removal continued to exist, since appellant could not or would not remedy the conditions within a reasonable period, despite services or assistance available to her. Thus, the court found termination to be in April’s best interest. Exceptions were filed and denied, and a final decree was entered. Appellant perfected this appeal.

Appellant’s brief raises two questions. First, she contends that Services failed to meet its burden of proof by clear and convincing evidence. Her other contention is that the court erred in terminating her rights, when her mother and sister were willing to care for the child. This second argument will be addressed within our resolution of the first issue.

The standard of review in involuntary termination cases has recently been addressed by this court sitting en banc in In Re Adoption of James 332 Pa.Superior Ct. 486, 481 A.2d 892 (1984). There Judge Cavanaugh’s lead opinion held:

[Notwithstanding the Santosky [v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)] opinion, we agree that abuse of discretion is the proper standard of review and most importantly that it best upholds due process concerns and serves the interests of the parties in a termination of parental rights case. We do not believe that Santosky has any effect on the existing standard of review or that by broadening the standard of review, parent’s fundamental rights with respect to their children will be better protected. Therefore, we reject appellant’s contention that the holding in Santosky mandates a broader scope of review than abuse of discretion.

In reaching the holding in James J., Judge Cavanaugh was careful to distinguish between this court’s duty to ensure that the record was thorough and complete and our responsibility of reviewing the lower court’s ruling. As he stated:

Insofar as termination cases are concerned, intimations of broad appellate review or broad scope of review should properly relate to the appellate court’s duty to ensure that the trial court has satisfactorily fulfilled the requirements of examining all evidentiary resources, conducting a full hearing and setting forth its decision in a full discursive opinion. While, unlike custody cases, the termination cases have not repeatedly verbalized the requirement of comprehensiveness, it is clear from a reading of the cases that the requirement is engrafted on the law. Accord, In Re Adoption of J.S.M., Jr., 492 Pa. 313, 424 A.2d 878; In Re D.J.Y., 487 Pa. 125, 408 A.2d 1387 (1979); In Interest of C.M.E., 301 Pa.Super. 579, 448 A.2d 59 (1982).
Nevertheless, a broad or searching review does not vest in the reviewing court either the duty or the privilege of making its own independent determination of fact, nor does it preclude an appellate court from using abuse of discretion as the appropriate standard of review. The purpose of employing broad and searching review is for the protection of the parties in ensuring that the inquiry of the lower court is complete and that its decision was made in accordance with the due process clause of the Fourteenth Amendment in protecting the fundamental liberty interest of natural parents in their child. The purpose of employing the abuse of discretion standard of review, on the other hand, is to accord the trier of fact the appropriate deference as he has had the opportunity to observe the witnesses and evaluate their testimony, and by reason of his position is presumed to be practised and skilled in this responsibility.
(Cavanaugh, J. at 332 Pa.Superior Ct.-, 481 A.2d at 894).

Returning our attention to the case at hand, we find that the Orphans’ Court terminated appellant’s parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(5), which reads:

(a) General rule. — The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:
* s?s * Jj8 ^ Hs
(5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.

Accordingly, we must review the record in light of the above standard of review and determine whether Services has demonstrated by clear and convincing evidence the necessary elements of § 2511(a)(5). We may reverse the Orphans’ Court order only if it is apparent that that court abused its discretion, committed an error of law, or lacked evidentiary support for its findings.

The Orphans’ Court found the following facts and circumstances determinative. The court found that at the time of April’s birth appellant was experiencing physical and emotional problems. She was diagnosed as suffering from schizophrenia, paranoid type. Appellant did make some attempts to be helped but never fully realized the seriousness of her illness. While she did follow through with some counseling and medication, she did not do all she was directed to do. Her schizophrenia has gone into remission and she has become better acclimated since 1979. However, medical testimony shows she still can not raise the child on her own. Appellant continues to reside with her mother, April’s maternal grandmother, who has agreed she would help appellant raise the child. However, the grandmother did not intervene in April’s care prior to the child’s hospitalization. Testimony demonstrated that appellant and her mother did not get along well together and appellant herself had testified that if she regained custody of April she would move away from the grandmother.

The court noted that while the mental illness was in a state of remission, appellant’s condition had stabilized and would not improve further. At the time of the hearing she was still unable to properly care for the child. None of the medical witnesses could say whether appellant will remain stable. Visits with April had to be stopped as they were causing the child problems. The court later reinstituted visitation hoping that it might show some indications of a possibility of a future reunion between parent and child. The visitations proved to be unsuccessful and the court found it to be in the best interest of the child to continue separation and permit adoption by others.

Subsection (a)(5) of § 2511 was added to the Adoption Act by the Act of October 15, 1980. P.L. 934, No. 163, § 1; it went into effect January 1, 1981. This court has had only a few occasions to review its provisions. See James J., supra; In Re Adoption of Sabrina, 325 Pa.Superior Ct. 17, 472 A.2d 624 (1984); Matter of Adoption of K.S.C., 309 Pa.Superior Ct. 550, 455 A.2d 1221 (1983); In Interest of C.M.E., 301 Pa.Superior Ct. 579, 448 A.2d 59 (1982). Five requirements must be met before a parent’s right may be terminated pursuant to § (a)(5). 1) The child must have been removed from its parents for at least six months. 2) The conditions which led to the initial removal continue to exist. 3) The parent cannot or will not remedy such condition within a reasonable time. 4) Services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal within a reasonable period. 5) Termination would best serve the needs and welfare of a child.

The trial court found all five requirements present. There is no question that April has been in foster care for greater than six months. However, appellant does dispute whether the conditions which led to April’s placement continue to exist. We must look to the testimony to determine whether appellant’s inabilities have been corrected. Our concern, as it is in custody situations, is with the present and the future, and past conduct is not relevant unless it has an ongoing effect upon the child. See, Commonwealth ex rel. Gorto v. Gorto, 298 Pa.Superior Ct. 509, 444 A.2d 1299 (1982).

There is no dispute that appellant was suffering from a severe mental illness at the time April was brought to the attention of Services and that April was detrimentally affected by it. Similarly, there is no question that appellant, at the time of the hearings, was mentally much better than when the child was removed, as her illness was in a state of remission. All witnesses agreed that the disorder could reoccur in the future although they were unable to predict when, if ever, it would resurface. However, among the witnesses there was disagreement as to what lasting effect the illness had upon appellant’s ability to parent.

Dr. De Sai, a child psychiatrist who had observed the interaction between April and her mother and her grandmother, testified that schizophrenia leaves a severe disability. (N.T. 11/22/82, p. 59). A schizophrenic can not return to normal and the illness will affect parenting to the extent the child could become psychotic. (Id. at 76). Following such an illness, some people may be able to rear children, some may not, and the patients who are dependent on others do not make good parents. (Id. at 77). Dr. De Sai believed that appellant needed someone to structure her life and that she would not allow her mother to take care of her. (Id. at 82-85). He concluded that appellant, by herself, would not be able to care for April. (Id. at 79).

Dr. Gustin, another psychiatrist, also evaluated appellant. He was concerned about her lack of insight into her psychological difficulties and over her use of denial and minimization of her disabilities as well as her lack of cooperation in a treatment program and her inability to take constructive criticism. (N.T. 7/29/82 p. 5). He doubted whether “she would be able to provide ongoing sustained parenting for her child at this time.” (Id.)

A third psychiatrist, Dr. Singh, had treated appellant for her mental illness, and has earlier testified that he saw no reason to believe that appellant could not parent the child. (N.T. 10/29/81 and 10/24/81 p. 190). Despite her failure to follow the devised treatment plan and to follow regular counseling, her condition was the best he had ever seen of her. (Id. at 194, 202.) Appellant’s mental health counselor also testified. In his opinion, while appellant could not care for the child by herself, she could with the grandmother’s assistance and Services’ supervision, and no harm would come to the child. (Id. at 35.)

Turning to the relationship between appellant and the child’s maternal grandmother the testimony revealed the following. The grandmother did not intervene in the child’s care prior to the child’s hospitalization. The grandmother attributed this to her fear of appellant while appellant was at the height of her illness. (N.T. 10/24/81 p. 18.) Several caseworkers and the foster mother testified that the grandmother was mainly responsible for the interaction between mother and child during the visits. (Id. at 71, 112.) One caseworker observed a great deal of conflict between mother and grandmother (Id. at 71), while another one did not. (Id. at 112.) A friend of the grandmother’s never observed appellant and the grandmother fighting. (Id. at 145.) All of such testimony was heard more than a year before the order of termination.

Appellant’s actual parenting abilities were discussed at length at the hearing on October 29, 1981. The evidence discloses that at earlier visitations appellant had no knowledge of basic child care; she required constant monitoring; she had not developed parenting skills; she even had difficulty in changing a diaper; she was unable to anticipate the child’s actions and needs; and that she was unable to care for the child. Dr. De Sai observed appellant shortly before the November 22, 1982 hearing. He found the mother’s behavior was regressive, i.e., she treated April as if the child was much younger. In his opinion she needed parenting skills. No bonding was noticed between parent and child even after, what in his opinion was, a maximum effort to lessen April’s anxiety and promote the development of bonding. (Id. at 56-57).

The Orphans’ Court found that “the credible medical testimony ... clearly shows that [appellant] cannot on her own raise the child.” (Slip opinion p. 3). The court concluded that while appellant lives with her mother, and the mother has agreed to help raise the child, appellant and her mother “have not gotten along too well.” (Id. at 4.) It was also noted that the appellant testified that she intended to move away from her mother taking April with her if she were successful in regaining custody. (Id.)

But for Dr. Singh’s testimony, the remainder of the testimony from the other expert witnesses, the case workers, and the foster mother support the trial court’s finding that appellant was unable to care for the child and that it was unlikely that she could on her own remedy such within a reasonable time. Compare, Interest of C.M.E., supra. As we echoed in Matter of Adoption of Barnett, 304 Pa.Super. 514, 521, 450 A.2d 1356, 1359-60 (1982):

The adjudication of the Orphans’ Court will not be disturbed if “the record is free from legal error and ... if the chancellor’s findings are supported by the competent and adequate evidence, and are not predicated upon capricious disbelief of competent and credible evidence.” In Re Burns, 474 Pa. 615, 624, 379 A.2d 535, 540 (1977). As the Supreme Court said In Re Adoption of P., 475 Pa. 197, 380 A.2d 311 (1977), the fact-finding function of the hearing judge and his unique opportunity to observe the witnesses and to appraise their credibility is to be recognized. Nevertheless, the Court noted that the appellate courts may not abdicate the responsibility of considering all of the testimony and determining whether those findings are supported by competent evidence. The Court wrote,
[W]e also have a responsibility to make certain that the trial court has properly interpreted the law in relationship to the express findings of facts and other uncontradicted testimony which was not expressly rejected by the trial court. While we will not unsurp the trial court’s right to assess the credibility of the witnesses appearing before him, we will not condone his ignoring facts which are of record and the credibility of which is not challenged. Id., 475 Pa. at 204 n. 6, 380 A.2d at 314 n. 6.

We may not fault the court as to its findings that appellant was incapable of caring for April if found upon clear and convincing evidence.

Here the court apparently discounted Dr. Singh’s testimony. While Dr. Singh was appellant’s psychiatrist a.nd therefore most familiar with her mental state, he had never observed her interaction with April. While Dr. Singh could testify, that in his opinion, such mental illness would not interfere with the raising of a child and that he had seen such patients adequately raise children, he was unable to express any opinion as to the actual quality of appellant’s parenting abilities. Therefore the court could properly rely upon those who had made such observations or had reviewed others’ observations.

The testimony of Dr. De Sai, Dr. Marks, a psychologist, and the foster mother clearly demonstrates that the once a week visits were having a detrimental effect upon April. This was physically demonstrated by bed-wetting, poor appetite, hyperactivity and poor sleeping. Emotionally, the child’s insecurity was expressed by crying, temper tantrums, and a need for reassurance from the foster mother. The child’s change in temperament was expressed in such terms as “unbearable”, “there was no living with her”, “she carried on”, “she would not listen”, “she was rebellious”, “she mimicked people”, “she jumped on furniture”, “she was very demanding”, “she was fussy”, and “nothing pleased her.” Such behavior was attributed to the anxiety being caused by the attempt to form a bond between the child and appellant. The child would not initiate any interaction with appellant. Both Dr. De Sai and Dr. Marks believed the child was experiencing a great deal of stress.

Dr. Marks was concerned because the child was regressing and he feared the child might suffer a “psychotic episode”. In his opinion the child was not going to improve with increased or further visitation. (10/20/82 pp. 93-95). He believed the child would be unable to handle such visits for another year or two. (Id. at 109-10). However if the child was going to be eventually reunited with her mother, visitation should not cease entirely as the child would become more bonded with the foster parents. (Id. at 110-11). He would have liked to give the child a month or two without visitation in order for her to stabilize. (Id. at 112).

As previously mentioned, Dr. De Sai believed the maximum effort had been made to lessen the anxiety. However, the child was reacting so much, that if visitation continued, it would result in a further deterioration in behavior. (N.T. 11/22/82 pp. 58-59). He recommended against further attempts to forming a bond between appellant and the child. (Id. at 64). He thought all visitation should be stopped for one to two years. (Id. at 73).

We must agree with the trial court that the evidence was clear and convincing that discontinuation of visitation at the time of its order to terminate would best serve the needs and welfare of the child. However, the question which the Orphans’ Court had to struggle with, and which we too must face and resolve is not whether visitation should be halted, but rather, whether appellant’s parental rights should be totally extinguished. As we said in Interest of C.M.E., 301 Pa.Superior Ct. at 586-87, 448 A.2d at 63:

Because of the importance placed on the family, the Commonwealth may disrupt the parent-child relationship only upon clear showing of necessity; moreover, even if removal is necessary to protect the child, every effort should be made to reunite the family. In Re Adoption of R.I., 468 Pa. 287, 361 A.2d 294 (1976), appeal dismissed, U.S. cert. denied, 429 U.S. 1032, 97 S.Ct. 722, 50 L.Ed.2d 743 (1977).

We further stated:

A parent, whose child has been placed in foster care, has an affirmative duty to work towards the return of the child, but even if there has been a long separation occasioned by parental neglect or incapacity, termination of parental rights cannot be ordered if there is a reasonable possibility that the causes and conditions which have led to the separation can be remedied and the family restored. In Re William L., [477 Pa. 322, 383 A.2d 1228 (1978)]. (Emphasis supplied.)

The resolution of this current appeal hinges on whether, with assistance and the available services, appellant could, within a reasonable time resume her parental duties. The matter is complicated by the child’s need to avoid such frequent visitation for a period of one to two years. However, § 2511(a)(5) requires a court to determine both whether a parent’s difficulties can be remedied and also whether termination would be in the interest of the child. We believe the “and” linking these two requirements should be read in the conjunctive and hence each element must be proven.

The chronology of this case makes our review much more difficult to carry out. The hearings were separated by eleven months and both the parties and courts have tended to blend the testimony together. While the chancellor found the evidence presented in the first hearings inadequate to justify termination, he takes into account such testimony to support his decision to terminate appellant’s parental rights after the second hearings. Termination should be based on current and future inability to care for a child and not on a parent’s past performance. While a court must look to the past to determine if progress has been made, it should not rely on the past state of things unless such conditions continue at the time of decision. The circumstances surrounding the current case make it difficult to determine what the current situation was at the time the termination order was signed.

The testimony on the original petition to terminate was concluded on November 24, 1981 and yet the trial court did not hand down its decision until August 4, 1982. This delay was apparently caused by a delay in transcribing the notes of testimony which were filed of record on June 1, 1982. Appellant should not be punished for such delay. Unfortunately for appellant she was not permitted to visit April between June 17, 1981, when Services filed its petition, and the August 4, 1982 order. There is no wonder that April did not adjust to the renewed visitation which lasted five weeks before Services sought reconsideration. A month after the petition for reconsideration was filed, the court terminated visitation. Therefore, appellant and April were allowed approximately ten weeks, an hour a week, to form a mother-child bond, after being separated for approximately fourteen (14) months. While the order of August 4, 1982 called for appellant to attend counseling arranged for by Services, no counseling was provided or suggested.

When analyzing a parent’s performance, we should measure such performance in light of what we would expect an individual to do in circumstances similar to those in which a parent finds himself or herself. In Re Adoption of B.D.S., 494 Pa. 171, 431 A.2d 203 (1981); Matter of M.L.W., 307 Pa.Superior Ct. 29, 452 A.2d 1021 (1982). In appellant’s case we must determine whether a parent who last sees her child, when the child is twenty-one (21) months old, and then does not see the child again until the child is thirty-five (35) months old, may be expected to form a bond with the child within ten weeks and to know the proper parental behavior for a child of such age. In analyzing the situation we must assume that any interaction with the child when she was young was hampered by the parent’s severe mental disorder. We do not mean to place ourselves above those experts, who testified within the realm of their expertise, and we do not doubt that April has experienced great stress, however our responsibility is to determine whether there is clear and convincing evidence of appellant’s inability, within a reasonable time, in light of the assistance available to her, to care for the child. Although the psychiatrist’s and psychologist’s opinions appear to be based on the child’s best interest such is not sufficient by itself. See Matter of M.L.W., 307 Pa.Superior Ct. at 36, 452 A.2d at 1025.

The Orphans’ Court itself was not satisfied that termination was proper as of August 4, 1982. Services had not carried its burden. By orders of that date Services was to provide appellant with counseling. It apparently did not. Subsequently, testimony was for the most part directed at the adverse reaction April was displaying. While there was testimony as to appellant’s skills, there was no indication that Services had attempted, since August 4, 1982, to assist appellant in improving her skills. The basis for the termination appears to be April’s negative reaction as well as appellant’s failure to develop, without counseling, the appropriate parenting skills. To rely heavily upon April’s adverse reaction to justify termination was unreasonable in light of the testimony that April’s current state of development was not conducive to attempting new bonding between her and her mother. The witnesses recommended waiting another year or two. Either appellant was so incompetent as a parent that she would not within a reasonable time be able to care for April or else given another year or two she could possibly renew a relationship with April. From the record it is unclear which was the correct view. Assuming that the passage of a year or two would better enable the reunion of parent and child, it was improper to hurry to extinguish appellant’s rights. Termination of parental rights is such a drastic measure that all concerned should tread with care. In light of the above and since there was no evidence that Services performed its crucially important duty to help appellant to develop parenting skills, we believe Services failed to carry its burden.

We find support for our holding in those cases which have reviewed § 2511(a)(5).

A majority of the court in James J. found that the fact that the father had been admitted, on several occasions, to a mental hospital did not demonstrate an incapacity to parent. The record was bare as to the details of treatment, diagnosis and prognosis. Further, the evidence was conflicting concerning the father’s interaction with the child. The court ignored the undisputed fact that the father had increased his visitation and his claim that he had not wanted to interfere with the “natural mother’s nurturing responsibilities.” His financial situation had improved, resulting in a corresponding improvement in his situation generally. We found that the father had clearly demonstrated a desire to learn and assume parental duties. We concluded that the elements of § 2511(a)(5) had not been proven by clear and convincing evidence.

However, In Re Adoption of Sabrina, supra, an order terminating parental rights was affirmed. There, the mother of “limited intellectual capabilities” refused to cooperate so as to attain the necessary skills and stability or reform her bad habits. She demonstrated a lack of care and concern toward children. She failed to utilize the resources available to assist in her parental education and personal counseling and to take advantage of assistance given in finding employment, housing and “even to be released from prison.” Therefore the elements of § 2511(a)(5) were proven by clear and convincing evidence.

In Interest of C.M.E., supra, we found that while the record supported a finding of the parent’s repeated and continued incapacity to care for a child due to her limited intellectual ability, the record revealed only a half-hearted attempt to assist her in remedying her deficiency. It was determined that she could be rehabilitated to care for the child within two and one-half (2V2) years. Such period was not an unreasonable period to allow her to correct her deficiency. Hence, termination under § 2511(a)(5) was impermissible.

Similarly in Adoption of K.S.C., supra, this court found the evidence insufficient under subsection (a)(5). The evidence was meager and vague as to the initial placement and as to whether conditions had changed. Of special interest to the current appeal is the fact that there the children became unruly after visitation and the children did not want to see their mother. Nonetheless, termination was held to be improper at that time, as it was specifically noted, the statute required the court to consider what assistance was offered by the agency. The record showed that no assistance had been offered.

Were we here to affirm the order of the Orphans’ Court we would be in effect holding that when a child is removed from a parent suffering from a serious psychological disorder, which requires an extended period of recuperation, during which any existing parent-child relationship grows distant, then social agencies need not attempt to help the parent, but instead could move to terminate his or her parental rights. Such would be contrary to the requirements of the Adoption Act. Of even more concern is the current situation. Services, having failed to convince the court of appellant’s incapacity, could then subsequently rely upon its own inaction and the breach in the parent-child relationship, caused by its prior attempt to terminate, to justify a second petition. We find such would be an abuse of the Adoption Act.

In the current case it appears appellant would be dependent on others to assist her. Section (a)(5) specifically acknowledges and approves such dependence. While we can not say that appellant will be a successful parent if assistance is provided, we also can not say she would not. Services having failed to offer such assistance and allowing it a reasonable opportunity to be effective has failed to carry its burden of clear and convincing evidence. Therefore, we must reverse the order terminating appellant’s parental rights.

Order reversed.

HESTER, J., filed a dissenting statement.

HESTER, Judge,

dissenting:

I respectfully dissent. My review of the record leads me to conclude that in terminating the parental rights of appellant, the court below did not abuse its discretion, did not commit an error of law and there was overwhelming competent and adequate evidentiary support for its findings. April was born September 14, 1979. She was but 32 days old when she was admitted into the hospital suffering from extreme neglect. She has been in foster care ever since. Appellant is schizophrenic. She will never be normal, and the illness will affect parenting to the extent the child could become psychotic. At the time of the hearing, she had stabilized but would never improve further and was still unable to properly care for April. Schizophrenia leaves a severe disability. Appellant has been accorded every possible opportunity to acquire the parenting skills required to raise an active, normal child such as April. Not only is she unable to take care of April, she has difficulty in taking care of herself.

By enacting 23 Pa.C.S.A. § 2511(b), the Legislature has mandated that in terminating the rights of a parent the court shall give primary consideration to the needs and Welfare of the child. April is now 5 years old. If she is to have any opportunity to lead a normal life in a normal environment, the parental rights of Appellant must be terminated. I would affirm the action of the court below.

      . The filing of this opinion was withheld pending the disposition of James J.

        . Two judges joined in Judge Cavanaugh’s opinion; Judge Hoffman filed a concurring opinion in which he joined in the lead opinion as it addressed the standard of review but expounded upon the difference between “standard of review” and “scope of review"; and Judge Cirillo filed a dissenting opinion in which he concurred as to the standard of review but disagreed as to the resolution of the case when that standard was applied. Hence, five members of the court re-affirmed the "abuse of discretion” standard of review. The author of the instant opinion, in a Concurring and Dissenting Opinion joined by Judge Popovich, argued for a broader standard of review.

      . For further elaboration on this distinction see Concurring Opinion by Hoffman, J.

      . This burden of proof is mandated. See Santosky v. Kramer, supra; In Re Adoption of M.E.T., 313 Pa.Super. 316, 459 A.2d 1247 (1983). Here the Orphans’ Court applied the correct standard.

      . Her actual testimony was that she planned on moving out when she got a job and setting up her own apartment. She intended on leaving April in the grandmother’s care when she went to work. (N.T. 10/20/82 p. 31).

      . We must acknowledge that the legislature by enacting subsection (b) to § 2511 requires:
      (b) Other considerations. — The court in terminating the rights of a parent shall give primary considerations to the needs and welfare of the child. The rights of a parent shall not be terminated solely on the basis of environmental factors such as inadequate housing, furnishings, income, clothing and medical care if found to be beyond the control of a parent.
      As the Orphans' Court terminated appellant’s parental rights under § (a)(5), we must not limit our review only to the child’s best interest. Instead we must determine if all five of the elements listed above have been met.

      . We realize that Services was under a duty to bring the court’s attention to any adverse affects of visitation; however, we may not condone a premature renewed effort to seek termination of parental rights. See Matter of M.L.W., 307 Pa.Superior Ct. at 36, 452 A.2d at 1025.

      . We are not including the November 1982 sessions with Dr. De Sai.

      . Throughout the proceedings various witnesses had expressed their concern over appellant's prior failure to carry through on psychological or mental health counseling. Such should not be confused with counseling to be provided by Services.

      . We would hope that all concerned with April's welfare would offer their assistance in attempting to establish and monitor a visitation program between appellant and April.


author: HESTER, Judge:

text:
    482 A.2d 1086
    R.P. RUSSO CONTRACTORS & ENGINEERS, INC., Appellant v. C.J. PETTINATO REALTY & DEVELOPMENT INC., the Housing Authority of the County of Lackawanna, and the Old Forge Bank.
    Superior Court of Pennsylvania.
    Submitted June 8, 1984.
    Filed Oct. 5, 1984.

      John J. Dunn, Sr., Scranton, for appellant.
    John R. Lenahan, Sr., Scranton, for Housing, appellee.
    William W. Warren, Jr., Scranton, for Old Forge, appellee.
    Before TAMILIA, JOHNSON and HESTER, JJ.
   HESTER, Judge:

This appeal arises from a dispute which occurred during the construction of a thirty-one unit public housing project in Dickson City, Lackawanna County, Pennsylvania. On December 18, 1980, appellant entered into a Subcontract Agreement with the prime contractor and developer of the project, C.J. Pettinato Realty and Development Company, Inc., (hereinafter referred to as “Pettinato”)- This subcontract provided for appellant to perform excavation and other construction-related services on the project. Appellant was to be paid two hundred twenty-four thousand two hundred ninety-five dollars ($224,295.00). Payments were to be made as the work progressed, and were to be based upon the percentage of work completed. The subcontract stated that for appellant to receive these payments, it was to submit requests for payments to Pettinato by the 24th of each month in which the work was performed. Those requests were to be incorporated into Pettinato’s request for payment to appellee, Old Forge Bank on the 29th of each month. Appellant then was to receive its payment within five days from the date Pettinato received payment from appellee. Payment by appellee to Pettinato was to be made by the 30th of the following month.

Regarding the final payment to appellant which was to be the balance due on the contract, appellant was to receive its payment within seven days after Pettinato received its final payment from the purchaser, the Housing Authority of Lackawanna County.

On October 20, 1981, appellant submitted a request for payment in the amount of seventy-nine thousand seven hundred ninety-five dollars and four cents ($79,795.04). Pettinato declined appellant’s request for payment alleging it was untimely. Pettinato further advised that no payment would be forthcoming to appellant and that appellant would also not be paid the remaining monies due on the subcontract, $161,521.63.

Sometime following this dispute between appellant and Pettinato, additional contractors were hired to complete the work which was to have been performed by appellant.

On March 5, 1982, appellant instituted suit against Pettinato, the Housing Authority and appellee. Appellant’s present counsel were appointed on January 18, 1983 to represent it by the United States Bankruptcy Court for the Middle District of Pennsylvania. The suit itself contained the following allegations against appellee:

21. Defendant, the Old Forge Bank, contrary to the fiduciary relationship existing for the benefit of the subcontractors herein including Plaintiffs and contrary to the approval and inspections of its duly authorized agents intentionally, recklessly and/or negligently disregarded the welfare and interest of the Plaintiff by refusing to provide payment to, or protection of payment or surety of payment for services and work performed and material and equipment supplied pursuant to the subcontract agreements set forth in Exhibit A having reason to know of the financial injury and detriment to the Plaintiff herein.
22. Further, Defendant, the Old Forge Bank aided and abetted in the interference in the contractural relationship between the Plaintiff and Defendant, Pettinato by making payment to the Defendant, Pettinato for benefit of alternate contractors and other contractors secured to perform work and provide material and services to be performed by the Plaintiff pursuant to said subcontract agreement and further secured services of or interferred with contractors and suppliers who had an existing contract or agreement for materials or supplies with the Plaintiff without the Plaintiff's approval, knowledge or agreement knowing or having reason to know of the harm and resulting in substantial losses to the Plaintiff herein.

On April 28, 1983, appellee, Old Forge, filed preliminary objections to appellant’s complaint alleging that the facts stated in appellant’s complaint did not establish a fiduciary relationship between appellant and appellee nor did they set forth an interference by appellee in the contractual relationship between appellant and Pettinato. Both parties briefed and orally argued the preliminary objections. The preliminary objections were sustained and appellant’s complaint was dismissed. The finding that a fiduciary relationship did not exist between appellant and appellee was based upon our holding in Myers-Macomber Engineers v. M.L.W. Construction Corporation, 271 Pa.Super. 484, 414 A.2d 357 (1979).

Regarding appellant’s initial tortious interference claim, the lower court held that to establish this cause of action, it is necessary to plead and prove that: 1) the acts complained of were willful and intentional; 2) they were calculated to cause damage to plaintiff in its business; 3) they were done with the unlawful purpose of causing damage and loss to plaintiff without right or justifiable cause on the part of defendant; and 4) actual damage and loss resulted. The lower court found the third element to be absent from appellant’s complaint.

In this appeal, appellant raises three allegations of error: 1) whether the lower court erred in finding that a fiduciary duty did not exist between appellant and appellee; 2) whether the lower court erred in dismissing appellant’s tortious interference with a contractual relationship cause of action; and 3) whether appellant should have been permitted to amend its complaint to reassert its tortious interference cause of action against appellee and further, to allege a third party beneficiary action.

Appellant, regarding its first contention, alleges that a trust relationship existed between appellee and appellant wherein appellee was acting as a trustee and should have released appellant’s monies for the work it had completed on the project. In asserting this trust relationship, appellant relies on Buchanan v. Brentwood Federal Savings & Loan Association, 457 Pa. 135, 320 A.2d 117 (1974). In Buchanan, supra, our Supreme Court stated:

It is well settled that no particular form of words or conduct is necessary to create a trust. Provident Trust Co. v. Lukens Steel Co., 359 Pa. 1, 58 A.2d 23 (1948); Bair v. Snyder County State Bank, 314 Pa. 85, 171 A. 274 (1934); Restatement (Second) of Trusts, § 24 (1959). Neither the presence nor the absence of the words “trust”, “trustee”, or “beneficiary” is determinative of an intention to create a trust. Thompson Will, 416 Pa. 249, 254-255, 206 A.2d 21, 25 (1965); 1 A. Scott, Law of Trusts § 24 (3d ed. 1967). The question is whether the agreements taken as a whole evidence an intent by appellants “to impose ... upon a transferee of the property equitable duties to deal with the property for the benefit of another person.” 1 A. Scott, Law of Trusts § 24, at 192 (3d ed. 1967); see Restatement (Second) of Trusts § 2 (1959). “To determine whether there is a trust we are to look, not at the title given, but at the powers and duties conferred.” Sheets’ Estate, 52 Pa. 257, 266 (1866). See McClain Estate, 435 Pa. 408, 411, 257 A.2d 245-247 (1969); Schuldt v. Reading Trust Co., 270 Pa. 360, 363-364, 113 A. 545, 547 (1921).
This Court in Vosburgh’s Estate, 279 Pa. 329, 123 A. 813 (1924), provided specific guidance for the resolution of the question whether the parties intended to create a trust. There we held that
“[a] trust is a relation between two persons, by virtue of which one of them as trustee holds property for the benefit of the other. The term ‘trust’ is a very broad and comprehensive one. Every deposit is a trust, except possibly general bank deposits; every person who receives money to be paid to another or to be applied to a particular purpose is a trustee____”
Id., 279 Pa. at 332, 123 A. at 815. Accord, In re Interborough Consol. Corp., 288 F. 334, 347 (2d Cir.), cert. denied, 262 U.S. 752, 43 S.Ct. 700, 67 L.Ed. 1215 (1923); Andrew v. Union Savings Bank & Trust Co., 220 Iowa 712, 715, 263 N.W. 495, 497 (1935); Carpenter v. Suffolk Franklin Savings Bank, 362 Mass. 770, 291 N.E.2d 609 (1973). See 1A. Scott, Law of Trusts § 24, at 192 (3d ed. 1967).

Id., 457 Pa. at 143-144, 320 A.2d at 122-123.

In Buchanan, supra, appellants had borrowed money from appellees, who were mortgage lending institutions. As security for these loans, appellants had given appellees mortgages upon real property owned by appellants, and had also executed personal bonds accompanying the mortgages. Each mortgage and bond contained a provision which required appellants to pay all taxes and assessments levied on appellants’ properties, and all fire and casualty insurance premiums on said property. Further, appellants were required to pay to appellees monthly one-twelfth of the annual real estate taxes.

Appellants, in Buchanan, supra, asserted that the agreement between themselves and appellees manifested a clear intent to create a trust, with the mortgage lending institutions holding appellants’ monthly tax and insurance payments in trust solely for the specific purpose of paying appellants’ taxes, assessments, fire and casualty insurance. The relief sought was to require the mortgage lending institutions to account to appellants for any profits derived from their investment of said monthly payments. Alternatively, appellants argued a constructive trust should be imposed on the earnings produced by the use of appellants’ monies.

Our Supreme Court held that the above pleaded facts put in issue the creation of a trust since appellants alleged that they had made monthly payments for the satisfaction of tax and other assessments pursuant to a contractual provision.

Unlike the present appeal, appellants in Buchanan gave their monies directly to the lending institutions to fulfill their obligation under the mortgage and bond. The facts in the present case are far removed from the facts in Buchanan. First the contract executed in the present case was between the developer, Pettinato, and appellant. This contract does not provide that appellant was to be compensated by appellee. Moreover, the contract entered into between appellee and Pettinato specifically provided that the appellee was only authorized to disburse the funds for the project to the prime contractor, not subcontractors such as appellant.

We find no fiduciary relationship between appellant and appellee.

Regarding appellant’s second issue concerning the alleged tortious interference of appellee with the contract between appellant and Pettinato, the lower court quite correctly stated that the following four elements must be present to establish a cause of action: 1) that the acts complained of were willful and intentional; 2) that they were calculated to cause damage to the plaintiff in its business; 3) that these were done with the unlawful purpose of causing damage and loss to the plaintiff without right or justifiable cause on the part of the defendant; and 4) that actual damage and loss resulted. Glenn v. Point Park College, 441 Pa. 474, 272 A.2d 895 (1971).

As previously mentioned, appellant alleges the following facts in regard to its claim of tortious interference;

Further, Defendant, the Old Forge Bank aided and abetted in the interference in the contractual relationship between the plaintiff and defendant, Pettinato by making payment to the defendant, Pettinato for benefit of alternate contractors and other contractors secured to perform work and provide material and services to be performed by the plaintiff pursuant to said subcontract agreement and further secured services of or interferred with contractors and suppliers who had an existing contract or agreement for materials or supplies with the plaintiff without the plaintiff’s approval, knowledge or agreement knowing or having reason to know of the harm and resulting in substantial losses to the plaintiff herein.

In dismissing this cause of action, the lower court found that the third element of the cause of action was absent, that being appellee, by its contract with Pettinato, was legally bound to make payments to Pettinato in compliance with the disbursement stages set forth in the Construction Loan Schedule. While we agree with the lower court that appellee was legally bound to make payments to Pettinato without regard to the problems occurring between appellant and Pettinato, and thus appellant could not assert a tortious interference action for appellee merely making payments to Pettinato, appellee could not claim justifiable privilege if it, as appellant asserts, “secured services of or interferred with contractors and suppliers who had an existing contract or agreement for materials or supplies with the Plaintiff (Appellant) without the Plaintiffs approval, knowledge or agreement.” See Paragraph 22 of Appellant’s Complaint. We reiterate that we are not stating that these facts are true, but for the purpose of deciding whether appellant has stated a cause of action, we must accept the well-pled facts in appellant’s complaint as being true.

Therefore, regarding that part of Paragraph 22 of appellant’s complaint which alleged that appellee “secured services of or interferred with contractors and suppliers with the Plaintiff (Appellant)” this allegation, when combined with the other facts alleged in appellant’s complaint, establishes an action for tortious interference with a contractual relationship.

Appellant finally contends that it should be permitted to amend its complaint to state a cause of action for tortious interference of a contractual relationship based upon appellant’s assertion that appellee and Pettinato conspired to oust appellant as a subcontractor in order to reduce the cost of constructing the project. Appellant also requests permission to amend its complaint in order to assert a third party beneficiary contract.

Regarding the right to amend a complaint, our Supreme Court has stated that, “[t]he right to amend should not be withheld where there is some reasonable possibility that it can be done successfully.” Glenn v. Point Park College, 441 Pa. 474, 483, 272 A.2d 895, 900 (1971). Appellant’s contentions concerning the alleged tortious interference by appellee conspiring with Pettinato for the purpose of denying appellant the right to fulfill its contract in order to save money on the costs of the project is different than the first tortious interference claim set forth in Paragraph 22 of appellant’s complaint which we previously decided did not state a cause of action. In appellant’s original assertion, it claimed that it was tortious interference for appellee merely to pay the new subcontractors that Pettinato had hired to replace appellant. Appellant’s present assertion is markedly different for appellant now claims that appellee and Pettinato conspired to oust appellant from the project. This allegation fulfills the third element of the previously recited elements required to establish a cause of action for tortious interference of a contractual relationship. Thus, we will permit appellant to amend its complaint to assert this cause of action.

Concerning appellant’s request to amend its complaint to assert a third-party beneficiary cause of action, appellant cites Matter of Gebco Investment Corporation, 641 F.2d 143 (3rd Cir.1981) to support its position that this is a proper factual situation for the assertion of this action. In Gebco, supra, an electrical subcontractor on an apartment building project and the trustee for the owner each claimed the right to undisbursed construction mortgage funds in the hands of a bank. The Third Circuit Court of Appeals, in finding that a third party beneficiary cause of action existed, stated that the electrical subcontractor had completed its work on the project and both' the bank and owner of the project knew that the fund held by the bank was strictly for the payment of subcontractors, such as the electrical subcontractor.

In the present case, the contract provided that appellee was to disburse portions of the mortgage loan to the contractors in compliance with the disbursement stages set forth in the Construction Loan Schedule. While it is true that monies from the disbursements given to Pettinato were forwarded to appellant as its work was completed Pettinato had full authority under the contract not to request the money if it believed that portions of appellant’s contract with Pettinato had been breached. Thus, unlike the situation in Gebco, supra, where there was no dispute that the electrical contractor had fulfilled its obligations, a third party beneficiary action cannot be asserted in the present action since appellant knew from the terms of its own contract between Pettinato and itself that it would not receive its progress payments if Pettinato believed that appellant had breached the contract.

Affirmed in part; reversed in part and remanded for proceedings consistent with this Opinion. Jurisdiction is relinquished.

      . For purposes of this appeal, we must accept as true all well-pled facts and all inferences reasonably deducible therefrom as true. Reardon v. Wilbur, 441 Pa. 551, 554, 272 A.2d 888, 890 (1971).


author: HESTER, Judge: JOHNSON, Judge,

text:
    482 A.2d 1092
    CITY OF PHILADELPHIA v. HOUSING IMPROVEMENT CORPORATION, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 8, 1984.
    Filed Oct. 5, 1984.

      Austin J. McGreal, Philadelphia, for appellant.
    Andrew P. Bralow, Philadelphia, for appellee.
    Before TAMILIA, JOHNSON and HESTER, JJ.
   HESTER, Judge:

Appellant, Housing Improvement Corporation, had been the legal owner of property situate at 2026 Wallace Street, Philadelphia, Pennsylvania. A residential dwelling was erected thereon.

Appellee, City of Philadelphia, filed a municipal lien against the property for delinquent real estate taxes, and on February 1, 1982, the property was levied for sale by the Sheriff of Philadelphia County. Additional appellees, Albert Wachlin and Robert Laughlin, purchased the property at the Sheriffs sale. Settlement was made with the Sheriff and the Sheriffs deed bears an acknowledgement dated March 1, 1982.

On March 10, 1983, appellant filed a petition to redeem the property in accordance with the redemption requirements. 53 P.S. § 7293. On March 16, 1983, the City of Philadelphia filed its answer. On March 28, 1983, Wachlin and Laughlin filed their answer stating new matter.

On April 5, 1983, the lower court dismissed the petition before appellant filed an answer to appellees’ New Matter. On June 18, 1983 appellant filed a motion to vacate the Order of Dismissal. The motion was denied on July 11, 1983. Hence, this appeal followed. We reverse and remand.

The sole issue raised is whether the court’s dismissal of the Petition for Redemption was prematurely entered and as such invalid.

Under Pennsylvania Rule of Civil Procedure 1026, “[every] pleading subsequent to the complaint shall be filed within twenty (20) days after service of the preceding pleading, but no pleading need be filed unless the preceding pleading contains a notice to defend or is endorsed with a notice to plead.”

In the present case, appellees’ new matter was filed on March 28, 1983, containing no notice to plead. The court, only eight days later, filed its order dismissing appellant’s petition, and effectively precluding appellant from replying to appellee’s new matter. If appellees’ new matter did contain a notice to plead, no Order could issue until the twenty-day period had run, or appellant had filed a reply, whichever occurred earlier. Vance v. Ferrara, 71 D & C 571 (1950). However, no notice to plead was attached to the new matter and consequently, no responsive pleading was required. Phillips v. Evans, 164 Pa.Super. 410, 65 A.2d 423 (1949); Ackerman v. Huntington Twp., 35 D & C 2d 172 (C.D. Westmoreland County, 1964).

In Slaughter v. Gruntz, 227 Pa.Super. 164, 166, 323 A.2d 152, 153 (1974), the court stated: “Under Pennsylvania Rule of Civil Procedure 1029(d) averments in a pleading to which no responsive pleading is required are deemed to be denied. Because averments in such a pleading are deemed to be denied, they are therefore at issue ...,” and should be. decided at trial.

We hold that because there was an issue in controversy, the lower court order was prematurely entered and is now vacated.

Appellees’ contend that since appellant filed its Petition for Redemption after the one-year statutory limit, appellant should be precluded from redemption. The relevant language of the redemption statute, Section 7293(a) and (b), is as follows:

(a) The owner of any property sold under a tax or municipal claim, or his assignees, or any party whose lien or estate has been discharged thereby, may, except as provided in subsection (c) of this section, redeem the same at any time within one year from the date of the acknowledgement of the sheriffs deed therefor, upon payment of the amount bid at such sale; the cost of drawing, acknowledging, and recording the sheriffs deed; the amount of all taxes and municipal claims, whether not entered as liens, if actually paid; the principal and interest of estates and encumbrances, not discharged by the sale and actually paid; the insurance upon the property, and other charges and necessary expenses of the property, actually paid, less rents or other income therefrom, and a sum equal to interest at the rate of ten per centum per annum thereon, from the time of each of such payments.
(b) Any person entitled to redeem may present his petition to the proper court, setting forth the facts, and his readiness to pay the redemption money; whereupon the court shall grant a rule to show cause why the purchaser should not reconvey to him the premises sold; and if, upon hearing, the court shall be satisfied of the facts, it shall make the rule absolute, and upon payment being made or tendered, shall enforce it by attachment.

The one-year redemption period is not mandatory. If appellees prevented appellant from filing, the one-year limit will not be strictly followed. City of Philadelphia v. Taylor, 318 Pa.Super. 435, 465 A.2d 33 (1983).

Appellant alleges that there are certain “equities” that will justify its delay in filing. If this delay was caused by appellees, appellees cannot object to appellant’s untimely petition. Id., 318 Pa.Superior Ct. at 437, 465 A.2d at 35. However, nothing appears of record to explain what the alleged “equities” are.

Therefore, we must remand to the court below with instructions to conduct a hearing in order to ascertain whether the alleged “equities”, which caused the late filing, were brought about by appellees.

Reversed and remanded. Jurisdiction relinquished.

JOHNSON, J., filed a dissenting opinion.

JOHNSON, Judge,

dissenting:

I dissent. My review of the record convinces me that appellant’s appeal was not timely filed, and therefore, should be quashed.

- When, on April 5, 1983, the trial court dismissed appellant’s petition to redeem property, appellant was for all intents and purposes out of court. This order was therefore a final order. Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978). As such, an appeal was required to have been filed within 30 days of this order. Pa.R.A.P. 903(a). Appellant’s appeal was not filed until August 12, 1983, more than four months after the final order. Clearly the appeal was not timely.

Appellant now attempts to circumvent the time constraints set forth in the rules by asserting that the Motion to Vacate filed by appellant on June 18, 1983, was in the nature of a motion to strike a judgment. A motion to strike a judgment is a challenge to those judgments that are voidable because of a defect apparent from the record. Malakoff v. Zambar, Inc., 446 Pa. 503, 288 A.2d 819 (1972); International Lands, Inc. v. Fineman, 285 Pa.Super. 548, 428 A.2d 181 (1981); Slaughter v. Gruntz, 227 Pa.Super. 164, 323 A.2d 152 (1974). Such a motion is not required to be filed within a set time, but need only be filed within a reasonable time. Osttowski v. Smith, 315 Pa.Super. 321, 461 A.2d 1301 (1983).

Appellant contends that the order of the trial court granting appellee’s motion to dismiss appellant’s petition to redeem property was the “equivalent” of a facially defective judgment because the court’s order was entered before appellant filed a reply to appellee’s answer and new matter. I do not find this argument to be persuasive. The answer and new matter filed by appellee was not endorsed with a notice to plead. Accordingly, the assertions contained therein were deemed to be denied by appellant and no responsive pleadings were required. Pa.R.C.P. 1026, 1029(a). See also Slaughter v. Gruntz, supra. Therefore, the trial court’s order is not facially defective on the record and should not be stricken.

I am in agreement with the trial court’s conclusion that appellant’s Motion to Vacate was, in reality, a motion to reconsider. It is well settled that the filing of a petition for reconsideration from an order of the court of common pleas does not operate to toll the appeal period. Boden v. Tompkins, 306 Pa.Super. 494, 452 A.2d 833 (1982).

Therefore, I would quash appellant’s appeal as being untimely.


text:
    482 A.2d 1095
    COMMONWEALTH of Pennsylvania v. Malcolm KYSOR, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 6, 1984.
    Filed Oct. 5, 1984.
    Petition for Allowance of Appeal Denied March 4, 1985.

      Dennis G. Kuftic, Edinboro, for appellant.
    Shad Connelly, Assistant District Attorney, Erie, for Commonwealth, appellee.
    Before BROSKY, WATKINS and HESTER, JJ.
   HESTER, Judge:

On May 26, 1981, the victim, Barney Fenton, and appellant, Malcolm Kysor, were imbibing at the Conneaut Shores Country Club in Conneaut, Ashtabula County, Ohio. The victim and appellant left together around midnight. After-wards, the victim was not seen until his body was discovered in a wooded area in Erie County, Pennsylvania on July 13, 1982.

On June 13, 1981, appellant was arrested in Corry, Pennsylvania for driving while intoxicated and theft by receiving stolen property. He was driving the victim’s 1979 Chevrolet Monte Carlo. Many months following the prosecution of these charges, the victim’s body was discovered in Erie County. As a result, appellant was charged with criminal homicide.

Appellant filed a motion to quash the criminal information for homicide on grounds that it placed him in double jeopardy and violated § 110 of the Crimes Code. The motion was denied, and this appeal followed.

Appellant contends that sufficient evidence concerning homicide was available at the time prosecution for theft and drunk driving was instituted; therefore, the homicide prosecution violated § 110 of the Crimes Code and the double jeopardy clauses of the United States and Pennsylvania Constitutions. According to appellant, the following circumstantial evidence was known by investigating officers prior to the earlier criminal proceeding: 1) appellant was identified as the victim’s companion at the Country Club; 2) he was arrested while driving the victim’s automobile; 3) his explanations to officers of how he came upon the vehicle, that he borrowed it from his uncle and that he purchased it in Columbus, Ohio, were disproved; 4) the victim was last seen alive with appellant; and 5) the victim neither reported for work nor contacted relatives or friends following his evening at the country club with appellant.

A plurality of our Pennsylvania Supreme Court in Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973), vacated, Pennsylvania v. Campana, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), reinstated on remand, Commonwealth v. Campana, 455 Pa. 622, 314 A.2d 854 (1974), cert. den., Pennsylvania v. Campana, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974), required the Commonwealth to prosecute the defendant on “all known charges” originating in a “single criminal episode”. Commonwealth v. Campana, 452 Pa. at 253, 304 A.2d at 441. The Campana plurality adopted the definition of “episode” as set forth in the ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Joinder and Severance 1.3 (Approved Draft, 1968): “An occurrence or connected series of occurrences and developments which may be viewed as distinctive and apart although part of a larger or more comprehensive series.”

The “single criminal episode” test protects the defendant from the oppression of sequential prosecution and “conserves precious judicial and professional manpower as well as the time of jurors, witnesses, and the use of public resources.” Id., 452 Pa. at 252, 304 A.2d at 441. These protections are preserved, then, by prohibiting reprosecution of a defendant for any offense which 1) arose from the same “criminal episode” and 2) was known to the prosecution at the commencement of the first trial.

In Commonwealth v. Thornton, 247 Pa.Super. 94, 371 A.2d 1343 (1977), the defendant pled guilty to a citation for authorizing his under-age sister to operate his motor vehicle. This plea resulted in payment of $30.00 in a fine and costs. Due to the fact that the operation of the vehicle by the defendant’s sister resulted in the death of a third person, a coroner’s inquest was conducted. As a result of facts disclosed at the inquest, the defendant was charged in a separate filing with involuntary manslaughter. Following conviction of involuntary manslaughter, he appealed from the judgment of sentence, alleging that the subsequent proceeding violated § 110 of the Crimes Code.

The Thornton court affirmed, holding that prior to the inquest, the prosecutor merely suspected the offense of involuntary manslaughter. Additional evidence disclosed for the first time at the inquest encouraged the institution of charges for involuntary manslaughter. The subsequent prosecution, therefore, did not violate § 110.

Appellant correctly contends that it is not necessary to produce the body to acquire a homicide conviction. Circumstantial evidence may be so convincing that it alone can satisfy the Commonwealth’s burden to prove guilt beyond a reasonable doubt. Commonwealth v. Burns, 409 Pa. 619, 187 A.2d 552 (1963); Commonwealth v. Lettrich, 346 Pa. 497, 31 A.2d 155 (1943). We do not believe, however, that the circumstantial evidence available here prior to discovery of the body was adequate either for probable cause for arrest or for conviction.

In Burns, upon which appellant relies, the defendant made several incriminating statements to relatives, friends and police officers. Although short of constituting confessions, these statements implicated the defendant as the killer. Moreover, one witness observed the defendant strike the victim with a hammer or an axe; and another witness observed the victim lying motionless on the floor of her apartment with blood on her forehead and the defendant standing nearby. This evidence is far more convincing than that advanced here by appellant.

It is more pertinent to note that evidence sufficient to support a guilty verdict does not mandate arrest and the filing of charges. In United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977), our United States Supreme Court emphasized that prosecutors were not obligated to commence criminal proceedings prior to their reasonable belief that there was sufficient evidence to prove guilt. The Lovasco court opined that due process does not require the subordination of “orderly expedition to that of mere speed.” 431 U.S. at 796, 97 S.Ct. at 2052, 52 L.Ed.2d at 763.

At the time of the first trial, it was known that appellant sat with the victim in the Conneaut Shores Country Club, departed with him and drove his vehicle. Furthermore, his statements concerning how he came to possess the vehicle were proven false. Finally, the victim was absent from work and had not spoken with relatives or friends. It may be that the cumulative effect of this circumstantial evidence would sustain a guilty verdict on homicide; nevertheless, investigating officers were justified in waiting until the victim's body was found. We are of the opinion that the facts known at the time of the first trial were more commensurate with those in Thornton than those in Burns.

Appellant also argues that the court erred in denying him carte blanche access to police investigative reports. Appellant maintains that without access to all reports, he could not determine what information concerning the homicide the Commonwealth had at the time of the first trial.

Instead of releasing the police reports to appellant, the court conducted an in camera inspection. Following the inspection, the court released for appellant’s perusal certain incident reports, testimony and statements compiled by investigative officers. These documents were considered by the Court to be relevant to the double jeopardy issue. Of those documents deemed irrelevant and therefore not released, the court said:

At this time the Court is going to include as irrelevant, this stack of documents here which I think should be marked as Court Exhibit Number 1 for the record. Now, admittedly, it’s a pile of several hundred pages of documents, but we will attempt to group them for simplicity purposes as one exhibit.

(N.T. January 10, 1983, p. 5) In Commonwealth v. Grayson, 466 Pa. 427, 353 A.2d 428 (1976), the Commonwealth’s refusal to permit the defendant to examine pretrial statements of its witnesses was sanctioned by the trial court. The Pennsylvania Supreme Court reversed, giving the defendant an opportunity to examine the statements in preparation for cross examination. The Court further opined:

Whether the statements of the prosecution’s witnesses would have been helpful to the defense is not a question to be determined by the prosecution or by the trial court. They would not be reading the statements with the eyes of a trial advocate engaged in defending a client.

Id,., 466 Pa. at 429; 353 A.2d at 429. Grayson was followed in Commonwealth v. Hamm, 474 Pa. 487, 378 A.2d 1219 (1977), wherein the defendant’s right to examine prior statements of Commonwealth witnesses was not contingent upon the Court’s opinion of relevance. Whether a particular statement was useful to the defense, the Hamm court held, was properly determined by an advocate. See also Commonwealth v. Morris, 444 Pa. 364, 281 A.2d 851 (1971).

This right of unfettered inspection appears limited to prior statements of Commonwealth witnesses. In Matter of Pittsburgh Action Against Rape, 494 Pa. 15, 428 A.2d 126 (1981), statements of rape complainants made to counselors were held subject to defense inspection, however, said statements included “only notes that are verbatim accounts of the complainant’s declarations and notes that the complainant has approved as accurately reflecting what she said.” Id., 494 Pa. at 28; 428 A.2d at 132. It appears, therefore, that tangible objects, criminal records, reports of examinations, inter alia, are not subject to inspection without the Courts determination of relevance beforehand.

The record here does not reflect the type of information deemed irrelevant by the Court. We know only that several hundred pages were withheld from appellant’s inspection. In the event some of those pages included statements of witnesses, the court erred in determining their relevance prior to appellant’s inspection. Conversely, should they have included notes of investigating officers which were not confirmed statements of witnesses, the Court may have properly excluded them.

Our earlier determination that appellant was not placed in double jeopardy by the institution of homicide charges was premised upon the record before us. Since the record is incomplete, however, we must reverse and remand for the purpose of permitting appellant to review all statements of Commonwealth witnesses and all relevant portions of the police reports. Furthermore, the court is instructed to state specifically for the record those portions of police reports which are withheld from appellant for inspection. Should the Court find information, heretofore unavailable to appellant, subject to appellant’s inspection, a new hearing on the motion to quash the indictment shall be conducted. At the hearing’s conclusion, appellant is free to appeal. If, on the other hand, no additional information is available for inspection, a new hearing is not to be conducted. Nevertheless, the court must specifically set forth a description of the portions of police reports excluded and an explanation for said exclusion. Appellant is free to appeal from that ruling as well. In short, our ruling today on double jeopardy is restricted to the incomplete record before us.

Reversed and remanded for proceedings not inconsistent to this disposition. Jurisdiction relinquished.

      . We are careful to note that written reports by police officers here may well constitute statements. Should that be the case, appellant’s inspection, free from a prior court determination of relevance, is permitted.

      . Pennsylvania Rule of Criminal Procedure 305 B(l) enumerates those items - which the Commonwealth shall disclose upon request by the defendant. Although these items are controlled by mandatory disclosure, they are to be released only where they are material to the case at hand.


author: PER CURIAM:

text:
    482 A.2d 1099
    COMMONWEALTH of Pennsylvania v. Eric BAINES, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 24, 1983.
    Filed Oct. 5, 1984.

      Edward Blumstein, Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and HOFFMAN, JJ.
   OPINION

PER CURIAM:

Appellant Eric Baines was convicted of conspiracy, aggravated assault, attempted murder and possession of an instrument of crime in a jury trial before the Honorable Angelo A. Guarino. The charges stemmed from an incident on September 20, 1980 when appellant shot a Philadelphia police officer, John D’Amico, as the officer attempted to serve a search warrant for narcotics at appellant’s residence. Post-verdict motions were filed, denied, and appellant was sentenced to a term of five to ten years imprisonment on the attempted murder conviction with concurrent sentences imposed on the remaining convictions. Appellant filed a motion, a supplemental motion and revised supplemental motion for a new trial and/or arrest of judgment, which motions were denied by Judge Guarino in an opinion dated June 22, 1982. Thereafter, appellant filed a pro se appeal to our court. The Commonwealth moved to quash the appeal due to the untimely filing (thirty-one days after imposition of sentence), which motion was denied on August 18, 1982 “without prejudice to the parties’ right to raise the issue of timeliness in their brief and at oral argument.”

Appellant raises the following issues on appeal:

1. Shall Appellant’s appeal be quashed as a result of filing a pro se appeal thirty-one days after imposition of sentence?
2. Should Appellant, Eric Baines, be granted a new trial and/or arrest of judgment due in whole or in part to material errors in the trial court proceedings including:
a) material errors in the trial court’s charge to the jury;
b) improper admittance of irrelevant and inflammatory physical evidence;
c) improper and abusive questioning of witnesses by the trial court;
d) failure of the trial court to remain impartial and refrain from interjecting damaging statements and inferences unsupported by the evidence;
e) ineffectiveness of counsel; and
f) a verdict contrary to the law and weight of the evidence.

Brief for Appellant at 1.

As to the first issue appellant raises, Pa.R.A.P. 903(a) provides that the notice of appeal shall be filed within thirty (30) days after the entry of the order from which the appeal is taken. As we said in Commonwealth v. Molyneaux, 277 Pa.Super. 264, 419 A.2d 763 (1980):

A notice of appeal must be filed within thirty days after the entry of the order from which the appeal is taken. Pa.R.App.P. 903(a); 42 Pa.C.S.A. § 5571; ... A motion for reargument or rehearing does not extend the time for taking an appeal from a judgment of sentence, ... nor is the time extended by a petition for reconsideration or modification of sentence____
The judgment of sentence in the instant case was entered on the docket on March 1, 1978, thus making it appealable. Pa.R.App.P. 301; ... At that time, appellant was informed that if he desired to appeal to this Court, then he must do so within thirty days. He was further advised that one of the grounds he may raise on that appeal could be ‘whether ... the sentence was proper.’ ... cf. Pa.R.Crim.P. 1405(c). Yet the appeal was not filed until 51 days following the judgment of sentence.

An appellate court may not enlarge the time for filing a notice of appeal. Pa.R.App.P. 105; ... Further, timeliness of an appeal is a jurisdictional question, ... allowing this Court to consider the issue sua sponte____

Since the appeal-was not timely filed, we are without jurisdiction to entertain it.

Appeal quashed.

Id., 277 Pa.Superior Ct. at 265-67, 419 A.2d at 764 (citations and footnotes omitted).

Appeal quashed.

      . Although we quash the appeal, we note from a careful review of the record in this case along with the briefs submitted by counsel and our independent review and analysis of applicable law, that the well-reasoned opinion of Judge Guarino, dated June 22, 1982, fully answers the second question raised in this appeal, and that there is no merit in any issues raised therein.