author: CAVANAUGH, Judge:

text:
    636 A.2d 198
    In re M.K. Born: 4/8/77, C.H. Born: 8/18/78, M.K. Born: 5/18/83, Minor Children. Appeal of Harry NICKLOW, Jr.
    Superior Court of Pennsylvania.
    Argued Oct. 5, 1993.
    Filed Jan. 5, 1994.
    Petition for Allowance of Appeal Denied May 10, 1994.

      Kathleen T. O’Boyle, Greensburg, for appellant.
    John M. Casario, Jeannette, for Westmoreland County Children’s Bureau, participating party.
    Before CAVANAUGH, KELLY and BROSKY, JJ.

       See No. 127 Judicial Administration Docket No. 1.

   CAVANAUGH, Judge:

Harry Nicklow, Jr. appeals from the order of the Court of Common Pleas of Westmoreland County which, inter alia, adjudicated the minor child C.H. dependent, issued a finding that she had been sexually abused and named Nicklow, the paramour of the child’s mother, the perpetrator of this abuse. We affirm.

The Westmoreland County Children’s Bureau (“Children’s Bureau”) filed a petition, on or about June 24, 1992, alleging that Nicklow had been sexually abusing C.H. on an ongoing basis for the past year and a half and that the child’s natural mother was aware of this abuse and did not take appropriate action to safeguard her thirteen year old daughter. The petition further alleged that all three of the mother’s minor children, M.K., C.H. and M.K., were without the proper parental care or control or other care or control necessary for their physical, mental or emotional health or morals. The court ordered a hearing and testimony was subsequently taken on six separate days from mid-July through mid-October. All interested parties were given the opportunity to testify. On October 26, 1992, the court entered an order which, inter alia, adjudicated the three minor children dependent based on the finding that they were without the proper parental care and control necessary for their physical, mental and emotional health and morals and that C.H. was further dependent based on the finding that she had been sexually abused by her mother’s paramour, Harry Nicklow. Following this adjudication, Nicklow filed this appeal.

Before we may turn our attention to the issues raised in this appeal, we must first determine whether a natural mother’s paramour has standing to appeal an order adjudicating her child dependent, when this adjudication is based upon the trial court’s finding that the paramour sexually abused the child. Recently, in the case of In the Interest of Garthwaite, 422 Pa.Super. 280, 619 A.2d 356 (1993), we held that the boyfriend of a child’s natural mother lacks standing to appeal an adjudication of that child’s dependency. The facts of Garthwaite, however, are distinguishable from those of the case at bar. In Garthwaite, we reasoned that a live-in boyfriend lacked standing because his interest in the trial court’s determination was remote and not immediate; the boyfriend was not the parent, guardian or custodian of the minor child, he was not a party to the dependency proceeding and his interests were not represented therein. Garthwaite, supra at 284-85, 619 A.2d at 358. We view with significance, that in Gartkwaite: (1) no formal adjudication was made that the mother’s boyfriend was guilty of abusing the child; and (2) the trial court’s adjudication had no direct consequences to the mother’s boyfriend. Garthwaite, supra at 282-84, 619 A.2d at 357-58.

Here, the trial court made a direct finding of appellant’s complicity in the acts of sexual abuse. Appellant was also a de facto subject of the trial court’s order as the trial court’s adjudication directly affected his rights by court order. Specifically, the court ordered that appellant was to have no contact with the children until he fully completed a program of the “Perpetrator’s Group” and that the Children’s Bureau was to arrange for him to have drug and alcohol counseling. These directives implicitly require appellant to undergo rehabilitation and they are presumably enforceable by sanctions. Furthermore, we believe it significant, although not dispositive of the question of standing, that appellant has been in a long term relationship with the mother in that he has been living with the mother and her three minor children for a period in excess of six years. Under these circumstances, appellant has a substantial, direct and immediate interest in the outcome of this case. See note 2, supra. Therefore, we conclude that he has standing to bring this appeal.

Three issues have been raised by appellant for our consideration:

(1) Whether the Lower Court’s capricious disregard of credible evidence which clearly demonstrated the alleged victim’s motivation to fabricate claims of sexual abuse against Appellant constitutes an abuse of discretion?
(2) Whether the Lower Court committed an error of law and/or abused its discretion in allowing the hearsay statements of the alleged victim to come in as substantive evidence through the testimony of the alleged victim’s psychologist?
(3) Whether the Lower Court committed an error of law and/or abused its discretion in prohibiting Appellant’s inquiry into the alleged victim’s bias against Appellant and an independent basis for her knowledge of sexual terms and sexual acts?

With respect to his first issue, appellant argues that the trial court ignored the testimony of Adra Shrader, a teenage friend of the alleged victim. He maintains that her testimony was highly credible and that it demonstrated the alleged victim’s strong motivation to fabricate claims of sexual abuse against him. Appellant points out that the trial court did not mention this witness’ testimony in its opinion and thereby concludes that the trial court ignored it entirely. We cannot agree.

With respect to our scope of review in dependency cases, we have stated:

The standard of review which this Court employs in dependency cases is broad. However, the scope of our review is limited in a fundamental manner by our inability to nullify the fact-finding of the lower court. We accord great weight to this function of the hearing judge because he is in the position to observe and rule upon the credibility of the witnesses and the parties who appear before him. Relying on this unique posture, we will not overrule his findings if they are supported by competent evidence.

In re Frank W.D., 315 Pa.Super. 510, 517, 462 A.2d 708, 711 (1983).

Here, the substance of the testimony which appellant highlights to establish a strong motivation to fabricate, consists of Adra Shrader’s testimony that C.H. said she hated appellant because he was too strict, that she wanted to get revenge on appellant and that she wanted to stay with her natural father because he was less strict than appellant. Appellant also highlights the fact that this witness was herself a victim of sexual abuse and that she confided in C.H. the details of this abuse.

The mere fact that Adra Shrader’s testimony was not mentioned in the trial court’s opinion does not mean that it was not considered by the trial court. C.H. testified that appellant had sexually abused her numerous times over a period of approximately one year. The testimony of Adra Shrader does not directly contradict this testimony. It simply provides a basis from which the trial court may draw an inference that C.H. fabricated her claims of sexual abuse. The trial court specifically stated in its opinion that it found C.H.’s testimony to be credible. Implicit in this finding is a rejection of appellant’s claims of fabrication. The trial court found that C.H. had been sexually abused by appellant and this finding is supported by the record. We will not overrule the findings of the trial court if they are supported by competent evidence. See Frank W.D., supra. As such, appellant’s first issue is without merit.

Appellant’s second issue concerns the testimony of a psychologist who spoke to C.H. regarding her allegations of sexual abuse. The psychologist’s testimony contained statements by C.H. which described the acts of sexual abuse allegedly perpetrated by appellant. It is appellant’s position that the trial court either committed an error of law or abused its discretion in admitting these statements through the testimony of the psychologist because they are inadmissible hearsay.

In allowing the psychologist to testify about the statements made by C.H., the trial court relied on a statutory exception to the hearsay rule, codified at 42 Pa.C.S.A. § 5986. This section reads:

A statement made by a child describing acts and attempted acts of indecent contact, sexual intercourse or deviate sexual intercourse performed with or on the child by another, not otherwise admissible by statute or court ruling, is admissible evidence in a dependency proceeding initiated under Chapter 63 (relating to juvenile matters), involving that child or other members of that child’s family, if a court finds that the time, content and circumstances of this statement provide sufficient indicia of reliability.

Id.

Appellant initially contends that this exception is not applicable in this case. He proffers two arguments in support of his position. First, he argues that the exception is only applicable when the actual appearance of the victim as a witness would cause trauma to the child, that there has been no finding of trauma in this case and therefore the hearsay statements of the child should not have been admitted. To support his contention, appellant relies on In the Interest of Tina K., 390 Pa.Super. 94, 568 A.2d 210 (1989). This case, however, does not support appellant’s position. In Tina, K., we held, that with respect to the applicability of § 5986, a showing of trauma was required only when the child does not testify. Id. Here, C.H. testified. Thus, a finding of trauma was not necessary. Appellant’s argument is meritless.

Appellant’s second argument is that the exception only applies to cases which involve expungement proceedings where the victim is very young. He points out that the proceedings in this case involved dependency and that C.H. was thirteen years old when she testified. Therefore, appellant contends, C.H.’s statements should not have been admitted through the testimony of the psychologist. Appellant’s assertion is incorrect.

The plain language of § 5986 unequivocally states that the hearsay statements of a child victim are “admissible evidence in a dependency proceeding.” See Freeze v. Donegal Mut. Ins. Co., 412 Pa.Super. 305, 312, 603 A.2d 595, 598 (1992) (when construing a statute, a court must follow the letter of the statute if its words are unambiguous). Furthermore, while the exception has been applied in expungement proceedings, it has been applied in dependency proceedings as well. See Tina K., supra; In re A.M., 365 Pa.Super. 516, 530 A.2d 430 (1987) (hearsay statements of child were properly admitted under 42 Pa.C.S.A. § 5986 in proceeding to determine dependency).

With respect to appellant’s contention that the exception only applies to very young children, appellant has cited no authority, and we are aware of none, which limits the exception to cases where the victim is very young. See generally In re A.M., supra (foster mother allowed to testify about statements of sexual abuse made to her by both eight year old child and eleven year old child).

Next, appellant contends that even if the exception is applicable in this case, the trial court committed a clear error of law by allowing the psychologist to testify about the acts of abuse described to him by C.H., prior to C.H. herself testifying about the acts of abuse. Appellant, however, has failed to point to any authority which supports his argument. “As a general rule, the order in which evidence is received is vested in the sound discretion of the trial judge, whose exercise thereof will not be disturbed in the absence of a manifest abuse.” Commonwealth v. Jones, 314 Pa.Super. 515, 523, 461 A.2d 276, 280 (1983) (citations omitted). In this case, the trial court allowed the psychologist to testify prior to C.H. because of time constraints on the court and the conflicting schedule of the psychologist. Under these circumstances, we cannot conclude that the trial court abused its discretion. As such, appellant’s second issue is meritless.

Appellant’s final issue is an assertion that the trial court either committed an error of law or abused its discretion when it prohibited appellant from inquiring into C.H.’s sexual activities and experiences. Specifically, appellant argues that he should have been allowed to inquire into this area in order to establish an independent basis for C.H.’s knowledge of sexual terms and sexual acts. He also contends that by not allowing him to inquire into C.H.’s sexual experiences with her boyfriend, the trial court significantly impeded his ability to establish the victim’s motivation to fabricate her claims of sexual abuse.

“It is well settled that questions concerning the admission or exclusion of evidence are within the sound discretion of the trial court and will be reversed on appeal only where a clear abuse of that discretion exists.” Walasavage v. Marinelli, 334 Pa.Super. 396, 411, 483 A.2d 509, 516 (1984) (citation omitted). “The court may exclude evidence that is irrelevant, confusing, misleading, cumulative or prejudicial.” Concorde Investments, Inc. v. Gallagher, 345 Pa.Super. 49, 56, 497 A.2d 637, 641 (1985) (citations omitted).

The trial court based its decision not to allow appellant to question C.H. about her past sexual experience on two alternate and independent legal theories. First, the trial court applied the Rape Shield Law (“RSL”), reasoning that, although applicable in criminal proceedings, the theory upon which it is based appears to apply in circumstances such as those present in this case. Application of the RSL, however, has not been extended to dependency cases. The scope of the RSL’s application is limited to criminal prosecutions relating to sexual offenses. We doubt the RSL’s direct relevance in this case as it is not a criminal proceeding and because C.H.’s boyfriend has not been a party to this dependency proceeding.

The second theory relied on by the trial court was that inquiry into the victim’s sexual activity was not relevant to the issue of whether appellant sexually abused the minor child. We agree. “Evidence is relevant if it logically or reasonably tends to prove or disprove a material fact in issue, tends to make such a fact more or less probable, or affords the basis for or supports a reasonable inference or presumption regarding the existence of a material fact.” Commonwealth v. Davis, 381 Pa.Super. 483, 491, 554 A.2d 104, 108 (1989). In terms of general relevance, the victim’s relationship with a third party simply does not tend to prove or disprove the allegation that she was sexually abused by appellant. As such, we find no abuse of discretion in excluding inquiry into C.H.’s past sexual activities and experiences; appellant’s argument is meritless.

Having found all of the issues raised by appellant to be without merit, the order of the trial court is affirmed.

Order affirmed.

      . At the time Nicklow was called to testify, criminal charges stemming from the alleged sexual abuse of C.H. were pending against him. Nicklow took the stand but refused to testily, invoking his rights under the Fifth Amendment to the Constitution of the United States. We note that Nicklow was represented by counsel at this proceeding.

      . With respect to standing, our supreme court has explained:
      [T]o have standing, a party must: (a) have a substantial interest in the subject-matter of the litigation; (b) the interest must be direct; and (c) the interest must be immediate and not a remote consequence.

        A "substantial'' interest is an interest in the outcome of the litigation which surpasses the common interest of all citizens in procuring obedience to the law. A "direct” interest requires a showing that the matter complained of caused harm to the party’s interest. An "immediate" interest involves the nature of the causal connection between the action complained of and the injury to the party challenging it, and is shown where the interest the party seeks to protect is within the zone of interests sought to be protected by the statute or constitutional guarantee in question.

        Garthwaite, supra at 283, 619 A.2d at 357-58; quoting South Whitehall Township Police Serv. v. South Whitehall Township, 521 Pa. 82, 86-87, 555 A.2d 793, 795 (1989) (citations omitted).

      . Although the trial court found that the mother and boyfriend were the perpetrators of the physical abuse, the court conceded in its subsequent opinion that it had been unable to determine whether the boyfriend had inflicted physical abuse on the child.

      . It appears that the mother’s boyfriend did not have the opportunity to litigate the issue of abuse before the trial court and that the trial court’s order did not invade nor infringe upqn his rights.

      . We note that the only authority cited by appellant with respect to this issue, Beneshunas v. Independence Life & Acc. Ins., 354 Pa.Super. 391, 512 A.2d 6 (1986), is completely inapposite. In Beneshunas, we held that the trial court abused its discretion when it failed to reopen the case for further testimony, where this testimony would be taken in the interest of a more accurate adjudication. Here, the testimony of the witness in question was admitted. Thus, Beneshunas does not even remotely support appellant’s position.

      . We note that the only case cited by appellant, to support his assertion that the exception only applies to expungement cases where the child is very young, is A.Y. v. Dept. of Public Welfare, 136 Pa.Cmwlth. 451, 583 A.2d 515 (1990) alloc. granted 527 Pa. 594, 588 A.2d 915 (1991). This case does not support appellant's contention. Although A.Y. was an expungement case and the victim was three years old, there is no indication that the application of the exception is limited to these circumstances.

      . The RSL is codified at 18 Pa.C.S.A. § 3104(a). It reads:
      (a) General rule. — Evidence of specific instances of the alleged victim’s past sexual conduct, opinion evidence of the alleged victim’s past sexual conduct, and reputation evidence of the alleged victim's past sexual conduct shall not be admissible in prosecutions under this chapter except evidence of the alleged victim's past sexual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence.

      . See 18 Pa.C.S.A. § 3104(a), supra; 18 Pa.C.S.A. § 3101 et seq. (relating to sexual offenses).

      . Appellant’s final contention is that the trial court’s refusal to allow him to inquire into C.H.’s sexual activities significantly impeded his ability to establish her bias against him and prevented him from establishing her motivation to fabricate. However, our review of the record indicates that C.H. was questioned about her relationship with appellant and her feelings toward him. Additionally, several other witnesses testified as to the relationship between C.H. and appellant. As such, wé cannot agree with appellant that his attempts to show bias were significantly impeded. To the contrary, we find that appellant had ample opportunity to attempt to establish the bias of the victim.


source: Caselaw Access Project

author: HUDOCK, Judge: TAMILIA, Judge,

license: Public Domain

text:
    686 A.2d 204
    David DEPP, Appellee, v. Carol A. HOLLAND, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 8, 1993.
    Filed Jan. 6, 1994.

      Joseph J. Chester, Pittsburgh, for appellant.
    Samuel R. Sciullo, Pittsburgh, for appellee.
    Before TAMILIA, HUDOCK and CERCONE, JJ.
   HUDOCK, Judge:

Carol A. Holland (Mother) appeals from the order of the trial court denying her exceptions to the hearing officer’s recommendation that no support award be entered and that she pay $50 per month toward arrears to David Depp (Father). We affirm in part and reverse in part.

The facts and procedural history may be summarized as follows: While the parties have never been married to each other, they are the parents of Kyle Holland Depp (Kyle), who was born on September 25, 1988. From his birth until November 17, 1989, Mother had primary physical custody of Kyle and Father was paying support and had limited visitation rights. On that date, pursuant to a complaint for primary custody filed by Father, Father was awarded primary physical custody. Father then proceeded to provide for his son without the financial assistance of Mother. On September 13, 1990, Father filed a petition for the support of Kyle against Mother. At the conclusion of a hearing on January 4, 1991, the permanent hearing officer recommended that Mother pay $210 per month for Kyle’s support, as well as $20 monthly toward arrearages. Following argument on exceptions, on July 31, 1991, the order of support was reduced to $117 per month.

On January 2, 1992, a petition for contempt against Mother was filed, and a date for a compliance hearing was requested. On January 17, 1992, Mother filed a counter-petition requesting either a downward modification or termination of the child support order based on the fact that she had given birth to a second child out-of-wedlock to John Beyers. As of that date, Mother had only paid $120 toward her support obligation. After a full hearing on March 5, 1992, the permanent hearing officer recommended that Mother be found in contempt. Her support obligation was reduced to $100 per month and $20 monthly toward arrearages which were, at that time, set at $1,916. In addition, Mother was ordered to seek employment and to present a job log to the court at a compliance hearing which was ultimately scheduled for September 15, 1992. Mother filed exceptions to this recommendation, urging that the “nurturing parent doctrine” was applicable, thereby exempting her from responsibility for the support of Kyle. These exceptions were dismissed by the trial court.

In the meantime, and after a period of supervised partial custody at Father’s residence, Mother, after posting security, was granted expanded partial custody away from Father’s residence at her home in Murrysville. On August 19, 1992, the parties entered into a consent order which created shared custody between the parties. The precise apportionment of time was established to be that Kyle spend 52.68% of his time with Mother and 47.32% of his time with Father.

Four days prior to the September 15 compliance hearing, Mother filed a petition for modification/termination of the existing support order based on her claim that the consent order regarding shared custody presented a change in circumstances. After a full hearing regarding both Mother’s compliance with earlier orders of court and with her petition to modify/terminate, the permanent hearing officer: 1) suspended the order of March 23, 1992 (dismissing Mother’s exceptions and entering a $100 monthly support order retroactive to August 17, 1992); 2) found Father had a monthly net income of approximately $1,400 and established an earning capacity for Mother of $1,200 per month, an increase in the previous $600 monthly earning capacity attributed to her at the March 5, 1992, hearing; 3) entered no award of support in favor of either party, but set arrearages at $2,423.16 as of September 15, 1992, payable to Father at a rate of $50 per month; 4) found that Mother remained in contempt for failing to seek employment and failing to make support payments; and 5) directed that a compliance hearing be held in six months.

Mother filed exceptions to these findings and recommendations claiming, among other things, that she was improperly accorded an increased earning capacity, that Father should have been ordered to pay child support to her, and that she should have been given the benefit of the “nurturing parent doctrine.” Following argument on these exceptions, the trial court sustained Mother’s exceptions to the extent that Mother’s earning capacity was reduced to $600 per month, but otherwise dismissed the exceptions and reaffirmed a September 30, 1992, order directing Mother to pay $50 per month in arrearages. Thereafter, a petition for reconsideration was denied. On appeal, Mother claims that the trial court erred in failing to enter an order of child support in her favor against Father and in failing to apply the “nurturing parent doctrine.” We will address these claims in reverse order.

As our Supreme Court has recently stated:

Our scope of review in support matters is well settled. Absent an abuse of discretion, we will not disturb on appeal a properly entered support order. Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984). An abuse of discretion “is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused.” In re Women’s Homeopathic Hospital of Philadelphia, 393 Pa. 313, 316, 142 A.2d 292, 294 (1958).
At common law, the duty of a parent to support his child was conditioned upon a parent receiving love, affection and assistance from that child. Contrary to the common law, today, the duty to support a minor child is absolute. Melzer, supra. However, in awarding child support, we must be cognizant of its purpose which is to promote the best interests of the child. Sutliff v. Sutliff, 515 Pa. 393, 528 A.2d 1318 (1987).

Oeler by Gross v. Oeler, 527 Pa. 532, 537, 594 A.2d 649, 651 (1991). Child support is a shared responsibility; both parents must contribute to the support of their child in accordance with their relative incomes and ability to pay. DeWalt v. DeWalt, 365 Pa.Super. 280, 529 A.2d 508 (1987).

As averred by Mother, the support guidelines do not directly address support obligations in shared custody situations. The permanent hearing officer considered the obligations of each party in this situation by calculating offsetting support obligations. Using a monthly net income of $1,400 for Father as obligee and $1,200 for Mother as obligor, the hearing officer arrived at a guideline figure of $210 per month. The hearing officer then divided that figure by 47.32 percent, representing the time Father had custody of Kyle. The resultant figure was $93.37. The hearing officer then used the same figures as if Mother were the obligee and Father the obligor, and arrived at a guideline figure of $245 a month. The hearing officer then divided that figure by the time Kyle spends with Mother, 52.68 percent, and arrived at a figure of $129 per month. Offsetting these two figures, the hearing officer achieved a difference of $29.63. Offsetting the monthly support obligations as if either party had primary physical custody, the hearing officer found a difference of $35 per month. Finding this result to be substantially the same, no order of support was assessed against either party. The hearing officer, however, did recommend that Mother pay Father $50 per month toward arrears. As stated above, the trial court denied Mother’s exceptions to its order affirming the recommendation except for stating that Mother was to be assessed a $600 earning capacity.

Mother first claims that the trial court erred in assessing her any earning capacity because she should have received the benefit of the “nurturing parent doctrine.” This Court recently discussed this doctrine in a case, like the present, where the issue was the mother’s duty to support the child of her first marriage in view of the fact that she stayed home to care for her infant child of a second marriage. In reviewing the actions of the trial court, which assigned no earning capacity to her, this Court stated:

The trial court, while finding the issue a troubling one, relied upon the nurturing parent doctrine whereby, in appropriate cases, the earning capacity of a parent who chooses to stay home with young children need not be considered, citing Hesidenz v. Carbin, 354 Pa.Super. 610, 512 A.2d 707 (1986); Butler v. Butler, 339 Pa.Super. 312, 488 A.2d 1141 (1985). Apparently there is no problem with the rule when the mother is caring for the children of the marriage. It is when the mother is caring for her children of a second marriage that the conflict arises. Judge Blahovic determined that the issue was not whether the mother was caring for her children as opposed to their children, but whether under the facts of the case what the earning capacity would be. This is the correct analysis under these facts, particularly since there is no evidence of the mother’s earning capacity based on her work record or employability. On this record imputing earning capacity to the mother is a fiction which simply shifts the burden of supporting the wife’s child of the first marriage to her second husband, who has no legal obligation to do so.
The concept of imposing a support Order based on earning potential is of long standing in support law and derives from the principle that a person who has a support obligation may not withdraw from income producing endeavors to defeat the right of support to his/her dependents. It has never been the law that a mother who elects to care for her young child is chargeable with voluntary withdrawal from income-producing activity to defeat the right to support her child by a previous marriage.

Atkinson v. Atkinson, 420 Pa.Super. 146, 148-149, 616 A.2d 22, 23 (1992) (emphasis in original). Finding that the record was totally devoid of any evidence that the mother ever worked, the majority in Atkinson affirmed the assessment of zero earning capacity to the mother.

As recognized by the dissent in Atkinson, the “nurturing parent doctrine” is not an absolute rule; it is but one factor to be considered by the trial court in determining whether to excuse the parent from contributing toward support. See Atkinson, supra, (Del Sole, J. dissenting). Upon review, we find that the particular facts of this case do not warrant the application of the “nurturing parent doctrine” to Mother. Unlike the mother in Atkinson, Mother not only has a past work history but, as demonstrated by the record, she has in the past performed private accounting for persons and at one time ran a day care facility out of her home. Under these circumstances, application of the “nurturing parent doctrine” is not appropriate. Thus, we affirm this part of the trial court’s order.

Mother’s next exception was that the hearing master overstated her earning capacity at $1200 per month. The trial court sustained this exception and lowered the assessed earning capacity to $600 per month. In its 1925(a) opinion, the trial court states that it need not further address this contention because it sustained the exception. However, we note that this adjustment in earning capacity alters completely the calculations of the hearing officer. Our own calculations now place the offsetting figures in favor of mother to be approximately $59 per month. While we do not find this to be a substantial difference, we remand to the trial court for its determination as to whether this difference would alter its previous order.

Order affirmed in part and reversed in part. The matter is remanded for a determination of an order of support, if any, given Father’s net income of $1,400 per month and Mother’s earning capacity of $600 a month. Jurisdiction relinquished.

TAMILIA, J. files a Concurring Opinion.

TAMILIA, Judge,

concurring:

I join my colleagues but write separately to clarify my position on the issue of the “nurturing parent doctrine.” In this case, the mother of the child for whom support was ordered alleges trial court error in assessing her an earnings potential of $600, thus diminishing the amount that the father was required to contribute for the child’s support. I believe Judge Baldwin was correct in making such an assessment and reducing the earning capacity/potential of the mother from $1,200 per month, as recommended by the hearing officer, to $600 per month because such a decision was fact specific.

With the advent of the Equal Rights Amendment in Pennsylvania in 1972, and the recent application of equal protection concepts of the Federal and State Constitutions, custody and support matters have undergone a fundamental revision from the past. Before the changes occurred, the father was held to be primarily liable for the support of children, the mother, secondarily liable. The mother’s duty became operative only if and when the father was unable to maintain the child. The tender years doctrine established a prima facie right to custody in a mother, which the father could overcome only by establishing her unfitness as a parent. Today, support obligations are the equal and joint responsibility of both parents, based upon their ability to pay, which includes earning capacity, and custody is determined on the standard of the best interest of the child with both parents having equal right to custody unfettered by gender based biases.

To assist trial courts in reaching the very difficult decision on support, federal and state legislation has provided for support guidelines, factoring in the joint parental obligation, which are promulgated under rule by the Pennsylvania Supreme Court. As to the even more difficult decisions to be made by trial judges as to custody, legislation has been promulgated providing for shared custody. Even more significant is the judicially approved doctrine of the primary caretaker which provides an alternative to any presumptions based on the standard of the best interest of the child and filling the void created by Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977), which abrogated the tender years doctrine. Once the award of custody has been made, the court may consider whether a parent having custody is entitled to elect child care responsibility as opposed to employment under the nurturing parent doctrine.

Focusing these concepts to bear on this case, the proper result was achieved by giving proper weight to the various concepts. At the outset, I believe as a matter of public policy, as this writer stated in Atkinson v. Atkinson, 420 Pa.Super. 146, 616 A.2d 22 (1992) (Tamilia, J.), a mother who is in custody of a child, particularly an infant, may elect to remain at home caring for that child and no earning capacity or potential may be assessed to the mother without actual earnings because of that decision. It is likely that under the same circumstances, a father would receive the same treatment. However, where as here there is an agreement and consent Order of shared custody, and where the mother had significant earning capacity prior to the birth of the child, but chooses to pursue her education rather than be employed, her part-time parenting does not qualify for a full exemption from child support by claiming the nurturing parent benefit. The law has never permitted a parent to withdraw from support or maintaining children to pursue private education goals. The needs of the children have always been paramount. The able trial judge made this abundantly clear by exempting one-half the caring capacity of $1,200 per month because the mother is nurturing the child approximately 50 per cent of the time. If she had been employed instead of seeking an educational goal for the remaining 50 per cent, assuming her income was at the rate of $1,200 per month, reduced by 50 percent, the share attributed to her would have been the same. It also is worthy of comment that the mother in this case is entitled to the benefits of the nurturing parent doctrine despite the fact this child was born out of wedlock. It has been the law since Levy v. Louisiana, 391 U.S. 68, 88 S.Ct., 1509, 20 L.Ed.2d 436 (1968), that children born out of wedlock may not be treated differently than children born during marriage. In computing support for such children, the nurturing parent doctrine must be applied as with children born within marriage. Also see Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972).

Finding no error in the trial court’s analysis and finding, I join in affirmance.

      . In closing, Mother argues "to the extent that [Mother] was entitled to an order of child support, she is entitled to an adjustment of arrears." Mother's Brief at p. 9. We note, however, that Mother has not taken issue with her obligation to pay Father $50 per month toward these arrearages.


author: TAMILIA, Judge.

text:
    636 A.2d 208
    Roger RITCHEY, Appellant, v. David M. PATT.
    Superior Court of Pennsylvania.
    Argued Dec. 15, 1993.
    Filed Jan. 13, 1994.

      Alan R. Krier, Altoona, for appellant.
    Scott M. Staller, Altoona, for appellee.
    Before DEL SOLE, TAMILIA and HESTER, JJ.
   TAMILIA, Judge.

Appellant/plaintiff, Roger Ritchey, appeals from the June 21, 1993 court Order granting judgment on the pleadings in favor of appellee/defendant, David M. Patt.

Appellant commenced the underlying civil action as the result of personal injuries received during the course of his employment for Entre Computer Company, which leased property from appellee/landlord. The lease called for exterior repairs to be performed by the landlord. On or about August 31, 1989, appellant, while exiting the premises through a service door, slipped on the edge of a concrete slab which was part of the walkway. Appellant alleges the slab was too narrow and unstable causing him to fall, suffering various injuries including a fractured right ankle and damage to his shoulder. Appellant also claims damages for mental stress, pain and suffering, lost wages and medical expenses.

Appellant filed a praecipe for writ of summons on or about November 13, 1991. In the corresponding complaint, filed February 27, 1992, appellant pled a cause of action for personal injuries based upon negligence and a breach of an implied warranty of habitability and workmanship pursuant to the property lease. The trial court granted appellee’s motion for judgment on the pleadings pursuant to 42 Pa.C.S. § 5424, which provides, in pertinent part, a two-year statute of limitations for actions to recover damages for injuries to the person.

On appeal to this Court, appellant alleges the trial court erred in dismissing the complaint since his claim for damages is actually based upon a breach of the implied warranty which accompanied the commercial lease contract to which appellant was a third-party beneficiary. He further claims the relevant statute for this type of action is 42 Pa.C.S. § 5525 which requires commencement of actions within four years.

This Court’s standard of review governing the propriety of a judgment on the pleadings is that:

we must accept as true all well pleaded statements of fact of the party against whom the motion is granted and consider against him only those facts that he specifically admits. We will affirm the grant of such a motion only when the moving party’s right to succeed is certain and the case is so free from doubt that the trial would clearly be a fruitless exercise.

Kester v. Erie Insurance Co., 399 Pa.Super. 206, 582 A.2d 17 (1990), citing Jones v. Travelers Insurance Company, 356 Pa.Super. 213, 514 A.2d 576 (1986).

In Pennsylvania, an action to recover damages for personal injuries is governed by a two-year statute of limitation. 42 Pa.C.S. § 5524(2); Aivazoglou v. Drever Furnaces, 418 Pa.Super. 111, 613 A.2d 595 (1992).

Appellant attempts to circumvent this statute by claiming an action in contract. Specifically, appellant alleges he was a third-party beneficiary of the lease contract in effect between his employer and appellee. As such, appellant is entitled to assert a claim for breach of implied warranties of habitability and reasonable workmanship under the lease. Further, in his analysis, appellant alleges his claim under the commercial property lease is analogous to personal injury claims under Article 2 of the Uniform Commercial Code (UCC) in which the four-year statute of limitation (42 Pa.C.S. § 5525) has been prescribed.

We find appellant’s argument to be without merit. This Court has stated that in Pennsylvania the nature of the relief requested, rather than the form of the pleading, determines which statute of limitations controls a particular action. Spack v. Apostolidis, 353 Pa.Super. 362, 510 A.2d 352 (1986) (fin banc). The two-year statute of limitations contains general language and does not distinguish personal injuries resulting from negligence or contract breaches. Rather, it addresses every suit to recover damages for injury wrongfully due to a person. Id.

Appellant’s complaint alleges a third-party beneficiary claim against appellee for injuries received on the leased premises. In his complaint, he seeks damages for injuries to his ankle and shoulder as well as pain and suffering, mental distress, loss of enjoyment of life and lost wages. We do not regard these requested damages as true contract damages such as cost of remedying defects in performance or cost of completing the bargained for exchange. Moreover, Article 2 of the UCC applies to the sale of goods and services. The cases cited by appellant deal with breaches of warranty pursuant to the sales and leases of goods. We find these cases in no way analogous to a third-party beneficiary claim for personal injuries under a commercial real estate lease. Accordingly, appellant’s action is barred by the two-year statute of limitations.

Order affirmed.

DEL SOLE, J., concurs in the result.


author: POPOVICH, Judge:

text:
    636 A.2d 210
    COMMONWEALTH of Pennsylvania, Appellee, v. Johnny F. HARRIS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 1, 1993.
    Filed Jan. 10, 1994.

      Jack W. Connor, Asst. Public Defender, Uniontown, for appellant.
    Richard E. Bower, Asst. Dist. Atty., Connellsville, for Com., appellee.
    Before POPOVICH, JOHNSON and CERCONE, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of sentence of the court of Common Pleas of Fayette County, following appellant’s conviction on charges of possession of cocaine, possession of cocaine with the intent to deliver and criminal conspiracy. Appellant contends that the lower court erred in failing to instruct the jury with respect to the defense of entrapment. Appellant also contends that the evidence established entrapment as a matter of law, and, thus, he is entitled to arrest of judgment of sentence entered against him. While we do not find that the evidence established entrapment as a matter of law, we do find that the trial court erred in refusing to instruct the jury concerning entrapment.

Initially, we note that entrapment is defined, in pertinent part, as follows:

(a) General rule. — A public law enforcement official or a person acting in cooperation with such an official perpetrates an entrapment if for the purpose of obtaining evidence of the commission of an offense, he induces or encourages another person to engage in conduct constituting such offense by either:
(2) employing methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it.
(b) Burden of proof. — Except as provided in subsection c of this section, a person prosecuted for an offense shall be acquitted if he proves by a preponderance of the evidence that his conduct occurred in response to an entrapment.

18 Pa.C.S.A. § 313.

The statute adopts an objective standard which focuses upon police conduct and tactics, rather than upon a defendant’s predisposition to commit crime. The pertinent question is whether the police conduct would have induced an innocent individual to commit a crime. However, merely affording opportunity, through police artifice and stratagem, for the commission of a crime by a person who already has the requisite criminal intent is not entrapment. See, Commonwealth v. Benchino, 399 Pa.Super. 521, 531-33, 582 A.2d 1067, 1072-1073 (1990); Commonwealth v. Lebo, 405 Pa.Super. 316, 592 A.2d 353 (1991), appeal denied, 530 Pa. 640, 607 A.2d 251; Commonwealth v. Wright, 396 Pa.Super. 276, 578 A.2d 513 (1990), appeal denied, 526 Pa. 648, 585 A.2d 468.

Instantly, the only evidence presented by the Commonwealth was that of the undercover officer, Trooper Nickle. He testified that he and his informant met appellant at a gas station after the informant had called appellant. Trooper Nickle further testified that, upon his arrival, appellant stated, “When I got your call and you asked for my code name, Johnny D., I knew that you needed my services. Now what can I help you with?” He stated that, after advising appellant that they wished to purchase cocaine and had $75.00 to spend, appellant said, “I’ll take you to my sources and get you a $50.00 bag and a $40.00 bag or whatever the man has. But I’ll get the stuff and if you don’t like it, it goes back.”

During the next six hours, Trooper Nickle and the informant accompanied appellant to various housing projects in Fayette County. While searching for cocaine, Trooper Nickle supplied at least two six-packs of beer which the three men consumed. At one project, appellant rejected some soap offered as cocaine by a black male with a New York accent. Later, Trooper Nickle, his informant and appellant proceeded to Coach’s Corner, a bar, where they met the same person who had previously tried to pass soap powder as cocaine. He indicated that he had found a supply of cocaine, and the group followed the male to a nearby residence. Trooper Nickle and appellant waited in the front seat of the unmarked police car while the New York male went inside the residence. A middle-aged, black woman and the male exited the residence, approached the vehicle, and the woman handed appellant a baggie containing a white substance. Trooper Nickle testified that appellant poked a hole in the baggie, tasted the contents and proclaimed, “This is cocaine.” The woman then demanded $60.00 which Trooper Nickle handed to appellant who then handed the cash to the woman. Trooper Nickle left the scene and dropped appellant off at his vehicle. He also testified that he had the informant give appellant $10.00 for his services.

Appellant’s and Trooper Nickle’s versions of the events of the afternoon in question are similar. However, they differ on some very significant points. Most importantly, appellant denied that the informant called him and that he offered his “services” and to take the men to his “sources.” Rather, he asserts he met the officer and the informant when Trooper Nickle approached him in the parking lot of Hunter’s Ridge, a housing project. Appellant testified that Trooper Nickle asked appellant if he knew where they could obtain some drugs. Appellant told Trooper Nickle that no drugs were available at Hunter’s Ridge. Appellant and the officer began drinking beer which the trooper offered to appellant. At the trooper’s suggestion, the three men entered the trooper’s vehicle where appellant contends all three men, including Trooper Nickle, consumed a small amount of cocaine supplied by the informant. Trooper Nickle then asked appellant if he knew where they could get some more cocaine. Appellant suggested that they try Lemonwood Acres, another housing project. On the way there, Trooper Nickle provided appellant with money to purchase another six-pack of beer.

At Lemonwood Acres, the men did not see anyone who appeared to be selling drugs. The parties then travelled to Briarwood Acres, where they were equally unsuccessful. Trooper Nickle suggested that they drive through Lemonwood Acres again. Once at Lemonwood Acres, the men went to the apartment of Eileen Green in order for the men to "go to the bathroom.” While appellant was returning from the bathroom, he heard Trooper Nickle ask Eileen Green if she knew where they could obtain some cocaine. She responded affirmatively, and Trooper Nickle gave her $60.00. She left to get the drugs and returned with a small packet of white powder which appellant discovered by smell to be soap. The soap powder was refused, and she then went and got the dealer who was the same male with the New York accent who Trooper Nickle described when he testified. Appellant then demanded the return of the $60.00.

After getting the money back, Trooper Nickle, the informant, appellant and Eileen Green went to Coach’s Corner bar where the trooper bought appellant a beer and a shot of Jack Daniel’s Bourbon. Trooper Nickle also bought another six-pack of beer, and the group left the bar. Once inside the car, they were contacted outside of Coach’s Corner by the New York male who said that he now had some cocaine. Despite appellant’s protest, Trooper Nickle followed the male to a nearby residence where the informant, while sitting in the front passenger’s seat, gave the male $60.00. He took the cash and entered the residence. A short time later, a middle-aged black woman came out and looked around. Then, the male exited the building and gave the cocaine to the informant. Everyone in the car then inhaled a small quantity of the cocaine, and Trooper Nickle took his passengers back to their residences or cars.

Instantly, we find that the trial court erred when it refused to instruct the jury on the defense of entrapment. The question of whether entrapment has occurred is a question for the jury, unless the evidence points to only one conclusion, in which case it may be decided as a matter of law. Lebo, 592 A.2d at 355; Commonwealth v. Clawson, 250 Pa.Super. 422, 425-426, 378 A.2d 1008, 1010 (1977). The lower court determined that the evidence pointed to only one conclusion— that there was no entrapment as a matter of law. However, we must disagree with that determination.

The lower court’s conclusion that there was not entrapment as a matter of law appears to stem from two separate errors. First, the lower court considered the question of whether to instruct the jury on entrapment by viewing the evidence in the light most favorable to the Commonwealth, i.e., it accepted only the arresting officer’s testimony and wholly discounted appellant’s recounting of the relevant events. However, it is clear that when deciding whether to instruct on entrapment, the judge must consider the possibility that the jury would credit the testimony of the defendant. See, Clawson, 378 A.2d at 1010-1011. In fact, where the defendant presents evidence of entrapment, an entrapment instruction should be given no matter how unreasonable the court may believe the defendant’s claims to be. Commonwealth v. Russell, 326 Pa.Super. 346, 353 n. 3, 473 A.2d 1383, 1386 n. 3 (1984). Second, the lower court apparently determined that appellant’s assertion that he engaged in no illegal activity precluded an entrapment defense. To the contrary, a defendant is not required to admit every element of the crime charged before he may contend that he was entrapped. Commonwealth v. McGuire, 339 Pa.Super. 320, 332, 488 A.2d 1144, 1151 (1985).

Presently, it is possible that the jury could have believed enough of- appellant’s version of the day’s events such that the defense of entrapment was viable. Appellant testified that he was approached by the trooper to obtain cocaine. He testified that he told the trooper that he did not know where any could be obtained. Further, he stated that he was given cocaine and alcohol by the officer prior to and during Trooper Nickle’s search for drugs. Thus, it is at least arguable that appellant was induced into helping the officer obtain cocaine by the officer’s actions of supplying appellant with drugs and alcohol.

Certainly, a jury could find that the present case is not one where the police merely gave the defendant the opportunity to sell drugs and did not importune the defendant in any manner. See, Commonwealth v. Stokes, 264 Pa.Super. 515, 400 A.2d 204 (1979); Commonwealth v. Wright, 235 Pa.Super. 289, 340 A.2d 544 (1975); Commonwealth v. Diliberto, 399 Pa.Super. 470, 582 A.2d 690 (1990). Rather, accepting appellant’s testimony which the jury is free to do, the jury could have found that appellant’s conduct was induced by the trooper’s distribution of cocaine and alcohol to appellant. We conclude that there was sufficient evidence of inducement introduced through appellant’s testimony such that the lower court erred when it concluded as a matter of law that entrapment did not occur. Simply put, the jury should have been permitted to decide the issue of entrapment. Cf., Clawson, supra (jury should have been permitted to consider defendant’s testimony as it related to the defense of entrapment).

While we agree with appellant that he is entitled to a new trial due to the lower court’s refusal to instruct upon the defense of entrapment, we do not agree with appellant’s assertion that demonstrated entrapment as a matter of law. To prevail as a matter of law, appellant must show that the evidence was so overwhelming that no reasonable jury could fail to find entrapment as a matter of law. Lebo, 592 A.2d at 356. Certainly, the evidence presented below does not rise to such a level. Rather, it is entirely conceivable that a jury would not credit any of appellant’s testimony. Nevertheless, appellant must be permitted the opportunity to have a jury assess his entrapment defense. Accordingly, we reverse the judgment of sentence and remand for a new trial.

Judgment of sentence reversed. Case remanded for a new trial. Jurisdiction relinquished.

      . In addition, a woman named Eileen Green accompanied the men .to Coach’s Corner. Eileen Green’s residence was where the black male attempted to pass soap powder as cocaine.

      . Appellant asserts he was at Hunter’s Ridge to drop a friend off after they had completed their work for the day at a construction site.

      . The recent case of Benchino, 582 A.2d 1067, is distinguishable from the present case. Therein, the defendant alleges he was induced to engage in criminal activity, i.e., cocaine distribution, by police conduct. The conduct of which Benchino complained was implicit threats concerning a debt which he owed to the Commonwealth’s informant and permitting him to sample cocaine. Despite Benchino’s allegations, the record in Benchino, supra, is clear; the defendant initiated and arranged a scheme to sell cocaine which would not only pay off his debt but also would provide him with a personal cache of cocaine. Thus, we agreed with the lower court’s conclusion that the evidence did not reveal entrapment as a matter of law.
      We note that Benchino, supra, began with a bench trial, and, thus, there was no need for a jury instruction on entrapment. Instantly, however, it is possible that the facts testified to by appellant, if believed by the jury, could result in a successful entrapment defense. Thus, it was for the juty to decide whether appellant proved entrapment by a preponderance of the evidence. 18 Pa.C.S.A. § 313; Clawson, supra.


author: POPOVICH, Judge.

text:
    636 A.2d 214
    Bonnie A. HAMMEL, Appellee, v. William G. HAMMEL, III, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 1, 1993.
    Filed Jan. 10, 1994.

      Jerry W. Wienand, Pittsburgh, for appellant.
    Samuel J. Goldstein, Pittsburgh, for appellee.
    Before POPOVICH, JOHNSON and CERCONE, JJ.
   POPOVICH, Judge.

This case involves an appeal from the March 18,1993, order of the Court of Common Pleas of Allegheny County granting a motion for judgment on the pleadings against the defendant/appellant, William G. Hammel, III. We quash in part and affirm in part.

Entry of judgment on the pleadings is permitted under Pa.R.C.P. 1034 which provides for such judgment after the pleadings are closed, but within such time as not to delay trial. A motion for judgment on the pleadings is similar to a demurrer. It may be entered where there are no disputed issues of fact and the moving party is entitled to judgment as a matter of law. In determining if there is a dispute as to facts, the court must confine its consideration to the pleadings and relevant documents. The scope of review on an appeal from the grant of judgment on the pleadings is plenary. We must determine if the action of the court below was based on a clear error of law or whether there were facts disclosed by the pleadings which should properly go to the jury.

Kosor v. Harleysville Mutual Insurance Co., 407 Pa.Super. 68, 595 A.2d 128, 129-30 (1991) (Citations omitted; emphasis added).

The record in the case discloses that in 1983, a verdict was rendered in favor of the plaintiffTBonnie A. Hammel and against her then husband/appellant in the amount of $31,-000.00. The verdict was entered on the docket, but no appeal was perfected therefrom by the appellant.

The next activity in the record is a praecipe for a writ of revival filed by the plaintiff on November 16, 1992. The appellant responded with an “Answer” to the Writ, and, contemporaneously therewith, a petition for a rule to show cause why judgment should not be stricken or opened and for stay of proceedings was filed.

The allegations in the petition were incorporated in the answer to the writ, e.g., that the original judgment was defective on its face and, therefore, void and subject to being stricken from the record. RR. 14a. Specifically, the appellant averred that the judgment was defective because he “was not ... a defendant [but a co-plaintiff] in the case [and] ... the attorney of record ... represented William G. Hammel, III, as a plaintiff throughout the case ... and not [as] a defendant.” Paragraph 3, RR. 19a.

Also, it was asserted by the appellant that the judgment should be opened because counsel “did not adequately represent his interests ... because [counsel] had a true conflict of interest between [representing] Bonnie A. Hammel and William G. Hammel, as a consequence of which, [the appellant] was erroneously deemed to be an additional defendant, although there is nothing of record to show that he was ever joined as such.... Id. at 4, RR. 19a.

Alternatively, the appellant sought to open the judgment on the ground that it was “wholly satisfied as a result of a marriage settlement agreement entered between the parties at FD83-1.0092.” Id. at 5, RR. 20a. While the rule to show cause was being decided, the appellant asked that all proceedings be held in abeyance pending resolution of the petition to open/strike.

The plaintiff responded to the rule to show cause by entering an answer denying all the allegations contained in the petition seeking a rule (Paragraphs 1-5). In reply to new matter, the appellant contended that he was not a defendant in the original lawsuit. Rather, he and the appellee were plaintiffs in a personal injury action. Paragraph 8, RR 40a.

The appellee/plaintiff challenged the appellant’s use of a petition to open/strike given that the case did not deal with a confessed judgment. Hence, it was urged by the appellee, the court had no jurisdiction to disturb a judgment entered on a jury’s verdict where there had been no appeal. Moreover, the plaintiff denied there was a marriage settlement agreement in which the judgment was satisfied, nor did the plaintiff ever agree or consider having the judgment satisfied. Paragraph 11. The appellant’s rule to show cause was denied on December 29, 1992.

Interestingly, the appellant’s reply to new matter contained the “admission” that the petition to open/strike was improper under Pa.R.Civ.P. 2959, but he urged that Rules 3030 and 3031 contemplated an answer and defense to the writ of revival. Additionally, the appellant incorporated paragraphs 3-5 of his rule to show cause into his reply to new matter, e.g., that there was a marriage settlement agreement executed by the parties covering the $31,000.00 jury award.

On January 8,1993, the plaintiff filed a motion for judgment on the pleadings alleging that a judgment was entered following a verdict rendered in her favor by a jury, and no confession of judgment prompted the verdict and award. Nor was the judgment defective on its face, so argued the plaintiff, to justify equitable relief in the form of an opening or striking of the judgment.

In opposing the plaintiffs motion, the appellant filed a brief in which he contended that, in paragraph 5 of his petition for rule to show cause, the plaintiffs judgment was “wholly” satisfied as a result of negotiations undertaken in connection with the parties’ divorce which, allegedly, constituted a meritorious and permissible defense to the scire facias action. Therefore, contended the appellant, judgment in favor of the plaintiff was inappropriate.

The court granted the plaintiffs motion for judgment on the pleadings on the bases that the appellant’s failure to appeal a previous order of another court, denying the appellant’s Petition For Rule To Show Cause Why Judgment Should Not Be Stricken Or Opened And For Stay Of Proceedings wherein satisfaction of the judgment via a marriage settlement agreement was averred, constituted a “waive[r of] the arguments he sought to raise ... before the [court] as to the Appellant’s defense to the motion for judgment in opposition of Plaintiff’s Motion for Judgment on the Pleadings.” RR. 136a. A petition for reconsideration was denied. This appeal followed and raises several issues framed in one run-on sentence by the appellant; to-wit:

The questions involved in this appeal are:
1. Whether the court erred in granting Bonnie Hammers Motion for Judgment on the Pleadings, in denying William Hammel’s Petition for Rule to Show Cause Why Judgement Should Not Be Stricken or Opened and for Stay of Proceedings, in denying William Hammel the opportunity to make legal argument, in allowing Bonnie Hammel to raise for the first time at oral argument the issue of res judicata, in ruling that William Hammel was foreclosed by res judicata from litigating the issue of revival of the judgment, in failing to consider that the previous judge orally clarified his previous order, in failing to distinguish between he defenses available to support a motion to strike judgment, to open judgment or to answer a writ of revival, in denying William Hammel’s Petition for Reconsideration of Order.

Appellant’s Brief at 3.

The first issue to which we shall respond is the assignment of court error in denying the appellant’s Petition For Rule To Show Cause Why Judgment Should Not Be Stricken Or Opened And For Stay Of Proceedings.

Proeedurally, we would note that the petition filed by the appellant to open/strike judgment was not the correct method by which to challenge the judgment. As conceded by the appellant, Pa.R.Civ.P. 2959 is reserved for those seeking “[rjelief from a judgment by confession....” Instantly, the judgment the appellant sought to open/strike was the product of a trial in which a jury rendered a verdict and award in favor of the appellee and against the appellant. No appeal was taken from that judgment. It was not until the appellee filed a writ of revival that the appellant submitted an “answer” thereto and the petition under scrutiny here to stay matters until a ruling on the petition could be made.

Although the petition to open/strike was denied, we have no insight as to the court’s rationale for such a decision. This may be due in part to the appellant’s failure to file an appeal from the court’s December 29,1992, order denying his petition and seeking now to have the propriety of its entry addressed on the heels and under the cloak of the grant and challenge of the appellee’s motion for judgment on the pleadings. This we will not allow.

Under Pa.R.App.P. 311(a)(1), an appeal may be taken as of right from “[a]n order refusing to open, vacate or strike off a judgment.” In other words, such an order would be considered “final” and subject to attack on appeal. See Note to Rule 311 (amended effective July 6, 1992). Consequently, the appellant’s failure to perfect an appeal from the court’s December 29, 1992, order denying his petition to open/strike judgment renders any attack of that order untimely and waived. See Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 348 A.2d 734 (1975). Thus, to the extent the appellant seeks review of the December 29th order, see appellant’s Brief at 24-25, we quash.

The next issue we will inquire into is the averment that the court erred in granting the appellee’s motion for judgment on the pleadings. As recounted supra, the court refused to assess the merit of the appellant’s challenge on the ground that:

By not appealing [the first court’s December 29, 1992,] Order, Defendant waived the arguments he sought to raise ... before [this second court] in opposition to Plaintiffs Motion for Judgment on the Pleadings.

RR. 196a.

In resolving the matter at hand, we first explore whether the doctrine of res judicata operates to bar the appellant’s claim in opposition to the appellee’s motion for judgment on the pleadings. As stated most recently by this Court:

A subsequent action is wholly barred if it shares with the earlier judgment a concurrence of four elements:
(1) an identity of the thing sued upon:
(2) an identity of the cause of action:
(3) an identity of the person and parties to the action; and
(4) an identity of the quality or capacity of the parties suing or sued.
In re Estate of Hillegass; 322 Pa.Super. 139, 144, 469 A.2d 221, 223 (1983) (citations omitted).
The fundamental principle upon which [res judicata] is based is that a court judgment should be conclusive as between the parties and their privies in respect to every fact which could properly have been considered in reaching the determination and in respect to all points of law relating directly to the cause of action and affecting the subject matter before the court.
Bearoff v. Bearoff Brothers, Inc., 458 Pa. 494, 498, 327 A.2d 72, 75 (1974). “The essential inquiry is whether the ultimate and controlling issues have been decided in a prior proceeding in which the present parties had an opportunity to appear and assert their rights.” Township of Ohio v. Builders Enterprises, Inc., [2 Pa.Cmwlth. 39] 276 A.2d 556, 557 (1971). “When the cause of action in the first and second actions are distinct, or, even though related* are not so closely related that matters essential to recovery in the second action have been determined in the first action, the doctrine of res judicata does not apply.” Id. at 42, 276 A.2d at 558. Further, the Court in Haefele v. Davis, 399 Pa. 504, 508, 160 A.2d 711, 713 (1960), citing Wright v. Weber, 17 Pa.Superior Ct. 451, 457 (1901), cautioned
The conclusive effect of a judicial decision cannot be extended by argument or implication to matters not actually heard and determined nor to collateral questions which arise but do not become part of the case ... [A] former judgment is not conclusive of anything which was not directly decided by it or was not material to the decision. Before such effect can be given to it in another suit, it should appear either from the record, or aliunde, that it must have rested on the precise question which it [is] sought again to agitate.

Id. 322 Pa.Super. at 144-45, 469 A.2d at 223-24.

Morgan Guar. Trust Co. v. Stoats, 428 Pa.Super. 479, 631 A.2d 631, 633 (1993).

Instantly, the appellant raised in his answer to the appellee’s writ of revival and his petition to open/strike judgment the defense that the amount claimed ($31,000.00 plus interest) had been satisfied by the terms of a marriage settlement agreement executed subsequent to the 1983 judgment. Nonetheless, the court by order of December 29,1992, denied the petition to open/strike, rendering the matter final for appeal purposes and having ruled on the merits of the marriage-settlement-agreement-defense. This exact same defense, involving the same litigants and seeking to forestall the appellee’s recoupment of monies due her originating from the 1983 judgment, was again challenged by the appellant. This time the confrontation came in the form of his opposition to the appellee’s motion for judgment on the pleadings, whereby he averred that a genuine issue of material fact existed (dispute over the satisfaction of the 1983 judgment via the marriage settlement agreement) to preclude granting judgment on the pleadings.

This court articulated the policy underlying the doctrine of res judicata in Staats, supra, 428 Pa.Super. at 492, 631 A.2d at 638:

the res judicata doctrine is a judicial creation aimed at preventing a multiplicity of suits. It protects a party from the vexation of having to defend itself against a claim for which a final judgment has already been entered. Furthermore, it serves the public interest by keeping the courts clear of disputes that have been decisively resolved. [Citations omitted]

Therefore, the doctrine of res judicata prevents a collateral attack by the appellant on the appellee’s 1983 judgment, by which a writ of revival followed to extend the enforceability of the money judgment.

The appellant’s defense (of marriage settlement agreement extinguishing 1983 judgment) had been ruled upon by the court per order of December, 1992, and the failure to assail the order on appeal thereafter is fatal on grounds of waiver and res judicata.

Accordingly, for the reasons herein stated, we quash in part and affirm in part the order appealed.

Order quashed in part and affirmed in part. Jurisdiction is not retained.

      . Our review of the record is contrary to the appellant’s account, i.e., the court granted the original defendant’s (Harley-Davidson’s) petition for leave to join the appellant as an additional defendant nunc pro tunc by order dated January 14, 1982.

      . The more appropriate course would have been to file an affidavit of defense and allow the court to decide the issue of revival on that basis. As was stated by our Supreme Court on this point, which we recite here for clarification:
      ... any question as to liability on the note [which contained a warrant of attorney and judgment was confessed thereon] can be considered only on a rule to open the judgment. On a scire facias sur judgment no defense is available unless it arose subsequently to the entry of judgment, as, for example, payment. In so early a case as Cardesa v. Humes, 5 Serg. & R. 65, 68, it was said by Gibson, J.: “But I take the law to be, that in no case, nor under any circumstances, can the merits of the original judgment be inquired into for the purpose of furnishing a defence to a scire facias. Where a judgment has been obtained surreptitiously, it will be set aside on motion; and where it is suffered by confession or default, if there be a defence of which the party was ignorant, or which arose after-wards, the Court, to give him the advantage of it, will open the judgment. But in no other way can the equitable power of the Court be interposed. In this proceeding the defendant must deny the original judgment altogether, or shew it has been satisfied since it was rendered; for down to that point of time it is conclusive.” A host of subsequent authorities have made this a familiar principle of the law.

        First National Bank & Trust Co. v. Laubach, 333 Pa. 344, 5 A.2d 139, 141 (1939) (Footnote omitted).
      Thus, one may not assail the original judgment sought to be revived. One is permitted, however, to proffer a defense of discharge or payment since the entry of judgment and no more will be allowed as a defense to a writ of revival. Yet, if a defendant wishes to test the validity of the judgment entered upon the former scire facias, he may do so upon a petition to open and the writ could be stayed in the meanwhile. Brusko v. Olshefski, 140 Pa.Super. 485, 13 A.2d 916, 917 (1940). Again, this challenge would be reserved for judgments secured by default or confession and not those obtained following a trial. Cf. Pa.R.Civ.P. 2959.

      . Our review of the marriage settlement agreement is anything but clear on what debts, liabilities or credits were satisfied under its terms.

      . As for the remaining issues proffered by the appellant, we find that resolution of the two issues addressed dispenses with the need to discuss their meritlessness.
      Further, we would observe, it was not improper for the (second) court to take judicial notice of the (first) court's December 29, 1992, order, especially since all parties brought the matter ruled upon by the first court to the attention of the second court and sought a clarification from the first court as to the scope of its December 29th order. Once this clarification was obtained, the second court entered its ruling granting the appellee’s motion for judgment on the pleadings. This was proper. See Woolard v. Burton, 345 Pa.Super. 366, 498 A.2d 445 (1985).


author: HESTER, Judge:

text:
    636 A.2d 219
    ELLWOOD CITY FORGE CORPORATION v. FORT WORTH HEAT TREATING COMPANY, INC., d/b/a Ellwood City Heat Treating and/or Advanced Metallurgical Technology, Inc., Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 8, 1993.
    Filed Jan. 13, 1994.

      John R. Seltzer, New Castle, for appellant.
    Suzanne L. DeWalt, Pittsburgh, for appellee.
    Before McEWEN, DEL SOLE and HESTER, JJ.
   HESTER, Judge:

Fort Worth Heat Treating Co., Inc., formerly Ellwood City Heat Treating, and now Advanced Metallurgical Technology, Inc., appeals from the May 5, 1993 judgment entered by the Lawrence County Court of Common Pleas following a jury trial. The jury found appellant hable to Ellwood City Forge Corporation, appellee, in the amount of $162,500 plus prejudgment interest on a breach of contract claim. Appellant asserts that the trial court erred in denying appellant’s request for judgment notwithstanding the verdict, failing to adequately instruct the jury, and failing to mold the jury’s verdict. We are constrained to reverse and remand.

The record viewed in the light most favorable to the verdict winner reveals the following. Appellee owned, what it believed to be, a 450 kilowatt (“K.W.”) ionitride furnace (hereinafter “furnace”), which uses heat and electrical energy to ionize the surface of a section of metal. The furnace charges the metal, and a plasma with the opposite polarity is applied, thereby binding the plasma to the surface of the metal rendering it much stronger. This process is used to strengthen sections of machinery and also to attach dyes to metal used in manufacturing automobiles. Appellee utilized this relatively new technology as a subsidiary enterprise to its main steel fabricating business but soon discovered the furnace it had acquired was difficult to both operate and maintain, and that the business appellee anticipated obtaining did not materialize or profitably support full-time utilization of the furnace.

Appellee originally came into contact with appellant, headquartered in Fort Worth, Texas, as the result of appellant’s reputation as an expert in operating and repairing ionitride furnaces. Appellee became interested in sub-contracting use of the furnace to appellant since the furnace was not being operated to capacity, and appellee was not realizing a profit from its use. Appellant responded favorably since it had obtained a contract with Chrysler Motor Corp. to ionitride automobile parts and Ellwood City was closer to the center of the automobile industry than Texas. On January 28, 1985, the parties negotiated a written sub-contract agreement (hereinafter the “agreement”), whereby appellant would maintain and operate the furnace (referred to in the agreement as “Equipment”) subject to a number of conditions and terms.

The agreement provided that appellant would use the furnace but reserve at least thirty percent of furnace usage time for appellee during the weekdays, and appellant would provide personnel to operate and maintain the furnace on a twenty-four hour basis. Appellee provided one operator for the weekdays when appellee operated the furnace. For use of the furnace, appellant promised to pay appellee $10,000 per month and thirty percent of the net profits for the five-year term of the agreement. Appellee was responsible under the agreement to provide utilities to power the furnace, including electricity and natural gas, and appellant was to pay for any utilities which exceeded the current utility costs incurred by appellee before net profits were calculated. The agreement included other terms such as insurance provisions and a provision indicating that the agreement was not to be construed as a joint venture or partnership.

The parties experienced difficulties almost from the beginning. Continuous problems were encountered in operating the furnace and in obtaining sufficient heat and electrical power. The furnace could ionitride pieces but not to the' degree appellant desired or anticipated. The parties worked together to resolve the difficulties since each party desired that the other party succeed in the enterprise. Eventually, appellant discovered that the furnace transformers were rated at only 350 K.W., instead of 450 K.W. as set forth on the furnace identification plate. Moreover, the transformers were too old and too worn to provide sufficient power to perform the tasks required by appellant. The parties ultimately determined that the only method to correct the power problem would be to replace the 350 K.W. transformers with 450 K.W. transformers, which would cost approximately $60,000. However, neither party was willing to make this investment. Appellant also encountered fiscal problems and continuously was in arrears in making its rental payments. Appellant eventually abandoned use of the furnace and stopped paying as required in the agreement. Appellee maintained that this breach was due to appellant’s financial difficulties. Appellee further claimed that the furnace was operable, and appellant had assumed responsibility for its operation. Ultimately, appellee filed suit for the balance due under the agreement for the entire term.

Appellant filed an answer and new matter. Appellant contended that the equipment described in the agreement, which included the furnace with 450 K.W. transformers, was not the furnace appellee delivered. Appellant acknowledged that the agreement provided that it was responsible for operating and maintaining the furnace. However, appellant contended that it could not operate and maintain the furnace as required in order to achieve its goals due to the fact that the transformers were underpowered and were not as set forth on the identification nameplate. Appellee regarded the agreement merely as describing whatever the furnace was it purchased and installed in its plant. Appellant, however, concluded that supplying an incorrect and inadequate furnace was a material breach of the agreement by appellee which excused appellant from further payment or performance under the agreement.

Following a trial, the jury rejected appellant’s arguments that the term “power” used in the agreement meant that appellee was responsible for any more than simply delivery of the power to the furnace as supplied by the utility companies. The jury found in favor of appellee for an amount slightly less than the full amount remaining due under the agreement. This appeal followed denial of post-trial motions and entry of judgment. We find merit in appellant’s argument that the trial court improperly denied its request for jury instructions regarding frustration of purpose and commercial impracticability.

We first note that we will not reverse based upon a court’s charge to the jury unless the charge as a whole was in error and prejudiced the complaining party. Schecter v. Watkins, 395 Pa.Super. 363, 577 A.2d 585 (1990). See also Ott v. Buehler Lumber, 373 Pa.Super. 515, 541 A.2d 1143 (1988). In this instance, appellant argues that the underpowered furnace delivered by appellee was not the one it bargained for, and the one supplied by appellee made it commercially impractical to continue to perform under the agreement. Appellant argues it was entitled to these instructions since they are supported by the evidence and the jury could have discharged it from the agreement under these principles.

Appellant, inter alia, requested the following instructions, which were denied by the trial court:

Defendant’s request for jury instruction no. 4
Under the laws of the Commonwealth of Pennsylvania, after a contract is made a party’s performance is made impracticable without its fault by the occurrence of an event, the non-occurrence of which is a basic assumption on which the contract was made, the party’s duty to render that performance is discharged unless the language or circumstances indicate the contrary. Therefore, if you find that after the contract was made, the performance of the Agreement became impracticable without fault of the Defendant when the Ionitride furnace failed to operate to its stated capacity and that the performance of the furnace at its stated capacity was a basic assumption on which the contract was made, then you may find that the Defendant’s duty to perform under the Agreement is discharged.
Defendant’s request for jury instruction no. 6
Under the laws of the Commonwealth of Pennsylvania and the evidence in this case, you are instructed that where a contract relates to specific property, the existence or maintenance of which is necessary to the carrying out of the purpose of this Agreement, the condition implied by law, just as though it were written into the Agreement, that the impossibility of performance or the frustration of purpose arising from the destruction of the property or interference with its use, without the fault of either party, ends all contractual obligations relating to the property. Moreover, you are further instructed that impossibility in this connection means not only strict impossibility but impracticality because of extreme and unreasonable difficulty, expense, or loss involved.

Appellant contends that the questions presented in these instructions are subject to resolution by a jury. See West Development Group v. Horizon Financial, 405 Pa.Super. 190, 592 A.2d 72 (1991); Typhoon Air Conditioning v. Fried, 147 Pa.Super. 605, 24 A.2d 926 (1942) (question whether breach should discharge the other party is a jury question). The non-existence of a condition or subject matter essential to the continuance of the agreement can lead to dissolving the agreement due to “frustration” of purpose. See Greek Catholic Congregation v. Plummer, 338 Pa. 373, 382, 12 A.2d 435, 439 (1940). Appellant asserts the jury could have found that the failure to deliver a 450 K.W. furnace as promised was an essential term that frustrated the intent of the parties and absolved it from its obligations under the agreement. It contends the court refused to give these instructions to the jury, incorrectly opting to instruct the jury instead on complete failure of consideration.

Appellant relies on Olbum v. Old Home Manor, 313 Pa.Super. 99, 459 A.2d 757 (1983), where we quoted with approval the Restatement of Contracts 2nd § 263, comment a:

Rationale This Section, like the preceding one, states a common specific instance for the application of the rule stated in § 261. If, as both parties understand, the existence of a specific thing is necessary for the performance of a duty, it is “a basic assumption on which the contract was made” that that will come into existence if it does not already exist and will remain in existence until the time of performance. Therefore, if its failure to come into existence or its destruction or deterioration makes performance impracticable, the obligor’s duty to render that performance is discharged, subject to the qualifications stated in § 261. Each party bears some of the risk that the transaction will not be carried out for such a reason. Id at 328.

313 Pa.Super at 108-109, 459 A.2d at 762 (emphasis omitted). In Olbum, the parties agreed to lease two coal seams. The coal proved to be unmineable and unmerchantable. We concluded that the Restatement of Contracts 2d § 261 applied, and each party assumed the risk that the coal was not useable in the absence of special language or circumstances of guaranteed performance. Appellant argues that in this instance, it bargained for a 450 K.W. furnace which it did not receive. Thus, it claims this principle is applicable since the wrong furnace likely is the act of a third party. It additionally asserts that the language placing responsibility on appellant for operating and maintaining the furnace did not encompass the risk of lack of power from an incorrectly identified furnace.

Appellant finally maintains that the record supports an instruction on frustration of purpose. Witnesses testifying on behalf of appellant indicated that despite great efforts made by both parties over a long period of time, the parties were unable to make the furnace achieve the heat and power required to ionitride the metal pieces to appellant’s satisfaction. Only much later did the parties discover that the transformers were underpowered. Accordingly, appellant argues the jury should have been instructed to decide if the failure to deliver a 450 K.W. furnace should absolve appellant from performing further under the agreement. We agree.

Appellant additionally asserts the evidence supported giving the instruction it requested on commercial impracticability of performance. Both parties agree that the only way to achieve the required heat and power is by replacing the 350 K.W. transformers with 450 K.W. transformers at a substantial cost. Appellant argues that it was a matter for the factfinder to determine whether appellee’s failure to provide a 450 K.W. furnace as promised entailed such substantial, unanticipated costs that it constitutes a breach which made further performance by it commercially impracticable in light of the risks it assumed and the benefits available under the agreement.

Appellant relies on West v. Peoples First Nat’l Bank & Trust, 378 Pa. 275, 106 A.2d 427 (1954), in which land was to be developed by a joint venture, but a substantial portion of the project was condemned for a highway. The issue concerned whether the agreement was terminated by the condemnation. In West, our Supreme Court held that where a contract relates to a specific property in existence, the maintenance of which is essential to the carrying out the purpose of the agreement, the condition of its continued existence is implied in the agreement by law, just as though it were written in the agreement. The question then was whether the impossibility of performance or frustration of purpose, without fault of either party, arising from the destruction of the property or its use, ends all contractual obligations. Our Supreme Court noted the Restatement of Contracts § 454 also applies the test of impracticability rather than strict impossibility, stating: “[I]mpossibility in that connection means not only strict impossibility but impracticability because of extreme and unreasonable difficulty, expense, or loss involved.” Id., 378 Pa. at 282, 106 A.2d at 432. (emphasis in original). At that point, it is up to the parties to waive the difficulties or seek to terminate the agreement. Id Appellant contends that it abandoned the agreement once it was discovered the furnace only was 350 K.W. and would involve substantial money to upgrade it. Appellant therefore argues that the jury should have been instructed that the production of the incorrect furnace entitled appellant to discharge due to commercial impracticability. We agree.

We reject appellee’s contention that appellant’s request for such an instruction was satisfied when the court gave an instruction regarding complete failure of consideration on the basis that the furnace entirely was unsuited to its task. The court instructed the jury:

Now, Fort Worth defends the cause of action by Ellwood Forge by claiming that Forth Worth is not liable under the agreement because Ellwood Forge breached the contract or the agreement, by one, failing to supply a proper power source or supply, that is, an adequate transformer, a 450 K.W. transformer; b, by failing to provide an operator for the equipment and office space; and by failing to install a water cooling system by the recirculation of water; and in addition, Fort Worth contends that it stopped making payments and left Ellwood Forge’s plant after Ellwood — after it had paid Ellwood City Forge up to the time that they were forced to leave.

Notes of Testimony, 9/25/91, at 5-6.

Instantly, the furnace could ionitride but lacked the output capacity of a 450 K.W. furnace. The fact that the furnace was only a 350 K.W. furnace, however, was not known to appellee at the time the agreement was executed. Thus, appellee believed it delivered what to its knowledge was the furnace described and promised in the agreement, and there was not a failure of essential consideration on its part. We conclude that the total failure of consideration instruction given by the trial court incorrectly may have led the jury to conclude that the furnace substantially must be inoperable for most uses intended by appellant before appellant could be discharged, which is a broader and stricter requirement than practical impossibility or frustration of an essential term or purpose. The jury also may have found that appellee delivered the correct furnace to the best of its knowledge, which does not address the real problem of frustration of purpose or commercial impracticability.

We also reject the argument by appellee that utilization of a manufacturer’s defect caused by a third party is restricted solely to personal injury and consumer cases and may not be used to discharge performance or seek recovery for economic losses in a commercial contract. See generally REM Coal Co. v. Clark Equipment, 386 Pa.Super. 401, 563 A.2d 128 (1989) (concepts of manufacturer’s defect is limited to tort cases, and breach of warranty of merchantability and fitness for a particular purpose is intended to apply only to consumer cases and not to commercial cases). This case is distinguishable since appellant is not alleging a manufacturer’s design defect, but seeks discharge based on recognized contractual principles.

Consequently, we hold the trial court’s instructions as a whole were insufficient, and the court erred in refusing to instruct the jury regarding impossible practical performance of the contract and frustration of an essential term. Since this refusal may have affected the outcome of the jury’s verdict and prejudiced appellant, we are constrained to grant appellant a new trial. See Schecter v. Watkins, supra; Ott v. Buehler Lumber, supra, (where court incorrectly instructs the jury and this may have prejudiced the losing party, a new trial is required).

Judgment reversed and remanded. Jurisdiction relinquished.

      . We note that appellee’s remedy may lie in a suit against the manufacturer. The record indicates that appellee already has sold the furnace and instituted such a suit.